Re: [gnso-vi-feb10] RE: Economists

[Eric Brunner-Williams <ebw@xxxxxxxxxxxxxxxxxxxx>]

Milton,

An exception from equal access was unwelcome by the Registrar
Constituency in 2001, and every year subsequent.

Is the consensus problem in this working group? That is, do you
believe that if there was consensus in this working group for
something historically, and without exception, opposed by an interest
group with Constituency status, now Stake Holder status, that this
consensus recommendation would be adopted by the Council?

Eric

On 5/4/10 10:25 AM, Milton L Mueller wrote:
> 
> I agree that Salop and Wrights' responses to your questions about equal 
> access were not very informative, but that was a bilateral problem. They 
> didn't understand your perspective very well, and I don't think you 
> understood theirs very well, either. 
> 
> Here's the disconnect: Salop and Wright base their position on the amount of 
> market power actors have. Restrictions such as equal access requirements, 
> limits on cross ownership and vertical integration only make sense, in their 
> view, if the firms have some kind of market power. New, start-up TLDs, in 
> their view, have no market power. Ergo, they don't believe equal access is 
> necessary. As they put it, a small, start up TLD should be able to have 
> "selective" access. Whether you agree or disagree with that proposition, do 
> make an attempt to understand it. 
> 
> Personally I tend to agree with them that equal access is unnecessary for 
> start-up TLDs with no market power, but that is not part of the MMA proposal 
> because it's probably too radical a change from the status quo to gain 
> consensus. 
> 
> --MM
> 
>> -----Original Message-----
>> From: Kathy Kleiman [mailto:kKleiman@xxxxxxx]
>> Sent: Tuesday, May 04, 2010 9:20 AM
>> To: Milton L Mueller
>> Cc: Gnso-vi-feb10@xxxxxxxxx
>> Subject: Economists
>>
>> Hi Milton,
>> Re: the antitrust economists, I think they showed us that they had not
>> evaluated the impact of the new models (which they proposed) on our
>> existing system (of Equal Access).  I asked the question, and they
>> didn't even factor it in to their work-- that means that so much of the
>> system we rely on for Registries to treat all Registrars equally in
>> terms of technical access to domain names, customer service access, and
>> EPP and other valuable data, was not even a part of their calculation. I
>> think that's a big shortcoming, I think Equal Access has served the
>> ICANN Community well, and I think it is a Principle of nearly every
>> proposal that has come before this WG.
>>
>> Further, the antitrust economists had not calculated the waiver of
>> jurisdiction by a registrant into their model development.  That a
>> Registrant must waive jurisdiction, e.g., for domain name disputes, to
>> the jurisdiction of the Registrar (for example if there is a court
>> appeal of a UDRP decision) is huge. It means finding the closest
>> registrar, or at least one in your own country, is important, valuable,
>> even business-saving or organization-saving.
>>
>> I find this WG's approach more systematic, more rigorous and more
>> informed than the economists. We know the current system, we know
>> Registries, Registrars and Registrants, and we know what is at stake.
>>
>> Best, Kathy
>>
>> -----Original Message-----
>> From: owner-gnso-vi-feb10@xxxxxxxxx
>> [mailto:owner-gnso-vi-feb10@xxxxxxxxx] On Behalf Of Milton L Mueller
>> Sent: Monday, May 03, 2010 1:52 PM
>> To: 'Kathy Kleiman'
>> Cc: Gnso-vi-feb10@xxxxxxxxx
>> Subject: RE: [gnso-vi-feb10] Orphans, existance and exploitation of
>>
>>
>> Kathy
>> The problem with the orphan exception is that it has got the problem
>> exactly backwards. It imposes restrictions upon new entrants and lifts
>> those restrictions only AFTER they are teetering on the brink of
>> failure.
>>
>> As our conversation with the antitrust economists made clear, CO and
>> self-distribution among new TLD applicants should be _presumed legal_,
>> and restrictions imposed only if or and when a certain level of market
>> power is reached.
>>
>> No one has ever provided a plausible rationale for what these initial
>> restrictions are protecting us against when the new gTLD has no market
>> power. All of the arguments (e.g., "co-mingled data") presume that the
>> TLD in question is well-established and in high demand and multiple
>> registrars are competing for access to it. That will not be the case for
>> most new TLDs.
>>
>>> -----Original Message-----
>>> From: owner-gnso-vi-feb10@xxxxxxxxx [mailto:owner-gnso-vi-
>>> feb10@xxxxxxxxx] On Behalf Of Kathy Kleiman
>>> Sent: Monday, May 03, 2010 12:14 PM
>>> To: Eric Brunner-Williams
>>> Cc: Gnso-vi-feb10@xxxxxxxxx
>>> Subject: RE: [gnso-vi-feb10] Orphans, existance and exploitation of
>>>
>>>
>>> Hi Eric,
>>> Tx for your question. You are, of course, talking about the gaming of
>>> the exception, and not its intended purpose. But it's a fair question
>>> nonetheless.
>>>
>>> The purpose of the orphan exception is to reflect problems we have
>>> heard
>>> -- that with so many new gTLDs, a small one may not be picked up by
>>> registrars, and thus may not be distributed to its intended audience
>>> (e.g., a small community, a developing country set of groups, etc.).
>>>
>>> It is not intended to provide a way for a gTLD Registry of a new .BLOG
>>> or .WEB, for example, to keep their domain names to themselves and
>> away
>>> from the Equal Access provisions for registrars.
>>>
>>> So Eric, would the following restrictions protect against the problems
>>> you raise?
>>>
>>> 1.  You can only get Orphan status if 3 or fewer registrars offer your
>>> TLD --  at any point in time;
>>>
>>> 2.  You have to apply in writing to ICANN for Orphan status and there
>>> is
>>> a 30 day comment period before you can start operations with your own
>>> registrar or directly (e.g., 30 days for ICANN-Accredited Registrars
>> to
>>> say "Yes, I want to offer this gTLD!"; and
>>>
>>> 3.  If, after you start your own registrar operations,  additional
>>> registrars start offering your names (such that then more than 3
>>> unaffiliated registrars are offering your TLD) -- then your own
>>> affiliated registrar is limited to managing X thousand names (e.g.,
>>> 30,000 or 50,000) -- at which time you must stop distributing your TLD
>>> domain names entirely.
>>>
>>> Best,
>>> Kathy
>>> -----Original Message-----
>>> From: owner-gnso-vi-feb10@xxxxxxxxx
>>> [mailto:owner-gnso-vi-feb10@xxxxxxxxx] On Behalf Of Eric
>>> Brunner-Williams
>>> Sent: Saturday, May 01, 2010 7:51 AM
>>> To: Kathy Kleiman
>>> Cc: Gnso-vi-feb10@xxxxxxxxx
>>> Subject: [gnso-vi-feb10] Orphans, existance and exploitation of
>>>
>>>
>>> Kathy,
>>>
>>> Am I correct in understanding the "orphan" status?
>>>
>>> Suppose Registrar X has a standing offer to every new gTLD registry
>>> applicant. For those applicants which garner no other offer, X is
>>> guaranteed 50,000 transactions at a margin it sets.
>>>
>>> X could set the price at 10x the registry price, prompting the
>>> registry to pay greenmail to get "orphan" status, and sell its
>>> inventory at the registry price, or fail.
>>>
>>> If the first 50k names are going to be generics and trademarks and so
>>> on, at sunrise and land rush pricing, will any applicant obtain
>>> "orphan" status before that inventory is exhausted?
>>>
>>> Thanks in advance,
>>> Eric
>>>
>>> ------------------
>>>
>>> Kathy Kleiman
>>> Director of Policy
>>> .ORG The Public Interest Registry
>>> Direct: +1 703 889-5756  Mobile: +1 703 371-6846
>>>
>>> Visit us online!
>>> Check out events & blogs at .ORG Buzz!
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>>>
>>> CONFIDENTIALITY NOTE:
>>> Proprietary and confidential to .ORG, The Public Interest Registry.
>> If
>>> received in error, please inform sender and then delete.
>>>
>>>
>>>
>>
>> ------------------------
>>
>>
>> Kathy Kleiman
>> Director of Policy
>> .ORG The Public Interest Registry
>> Direct: +1 703 889-5756  Mobile: +1 703 371-6846
>>
>> Visit us online!
>> Check out events & blogs at .ORG Buzz!
>> Find us on Facebook | dotorg
>> See the .ORG Buzz! Photo Gallery on Flickr
>> See our video library on YouTube
>>
>> CONFIDENTIALITY NOTE:
>> Proprietary and confidential to .ORG, The Public Interest Registry.  If
>> received in error, please inform sender and then delete.
>>
>>
>> ----------------------
>>
>>
>> Kathy Kleiman
>> Director of Policy
>> .ORG The Public Interest Registry
>> Direct: +1 703 889-5756  Mobile: +1 703 371-6846
>>
>> Visit us online!
>> Check out events & blogs at .ORG Buzz!
>> Find us on Facebook | dotorg
>> See the .ORG Buzz! Photo Gallery on Flickr
>> See our video library on YouTube
>>
>> CONFIDENTIALITY NOTE:
>> Proprietary and confidential to .ORG, The Public Interest Registry.  If
>> received in error, please inform sender and then delete.
> 
> 
> 
>