Fwd: RE: Re: [gnso-vi-feb10] Hedging the risk

[Eric Brunner-Williams <ebw@xxxxxxxxxxxxxxxxxxxx>]

Colleagues,

It has been suggested to me that I re-post a note from another list to
this list. After some reflection, I'm doing so.

Eric


-----Original Message-----
From: Eric Brunner-Williams [mailto:ebw@xxxxxxxxxxxxxxxxxxxx]
Sent: Tuesday, June 01, 2010 7:50 PM
To:
Cc:
Subject: Was: Re: [gnso-vi-feb10] Hedging the risk

[recipients redacted,]

I know that in January of 2008 Kurt wrote CRAI as follows:

"The registry contract prohibit cross-ownership (Language is simiar
to: the registry operator cannot secure ownership  directy or
indirecty  in more than 15% of a registrar). In the process to
estabish new TLDs there has been considerabe interest voiced by
registrars in appying for new TLDs. This interest is accompanied by
the beief that registrars will be able to "game" or "get around" the
separation requirement, i.e., the real parties in interest will be abe
to effectivey disguise their investment in various corporate structures."

I've corrected the lost text in the DIDP disclosure, and Kurt then
goes on to discuss functional separation and cooperation, more or less
the CORE position on each.

I also know, as do those who were at last January's VI+SR consultancy
in Washington, that Kurt, JJ, Dan, and Peter, after all distractions
were examined and discarded, reached for a unilateral amendment clause
in the contract because of the same concern. Future parties to the
single, and unilaterally amendable registry contract, would game that
contract, hence the need for what Susan Crawford memorably called "the
damp cocktail napkin" at Cairo.

Those choices stand as they are. The CRAI SOW contained a motivation
of creative disruption and harm. The unilateral amendment clause in
the Registry Agreement is motivated by creative disruption and harm.

By their choice of tools, not their enumerated list of harms, Staff,
our partners and antagonists in constructing interpretations of the
GNSO policy recommendations, and the Board resolutions, have stated
the risks as they see them. They are obviously sufficient to bar all
registrars from entering, directly or indirectly, registry contracts.

I suggest that it is not useful to discard corrective tools, and what
each discloses, simply because each lacks an enumerated list of harms.

Eric