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

[Milton L Mueller <mueller@xxxxxxx>]

Eric, 
If I am translating EB-W correctly today, you are asking me whether I think 
consensus can be achieved without registrars? 
Simple answer is no, based on the common sense view of consensus within WGs. 
However it is consensus in the WG as a whole, not among Rrs, that matters in 
the new GNSO.  

More complicated answer is that Council's official definition of a consensus 
policy I think involves a supermajority rather than consensus. So what the 
Council does with our report is a different matter. And what the Board does.... 

--MM

> -----Original Message-----
> From: Eric Brunner-Williams [mailto:ebw@xxxxxxxxxxxxxxxxxxxx]
> Sent: Tuesday, May 04, 2010 4:55 PM
> To: Milton L Mueller
> Cc: Kathy Kleiman; Gnso-vi-feb10@xxxxxxxxx
> Subject: Re: [gnso-vi-feb10] RE: Economists
> 
> 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!
> >>> 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.
> >>
> >>
> >> ----------------------
> >>
> >>
> >> 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.
> >
> >
> >
> >