Fwd: [gnso-vi-feb10] On harms, the note of 8/16

[Eric Brunner-Williams <ebw@xxxxxxxxxxxxxxxxxxxx>]

In the last call the co-chair requested that this note and the 
accompanying notes be resent to the list.
Eric

-------- Original Message --------
Subject: [gnso-vi-feb10] On harms, the note of 8/16
Date: Fri, 20 Aug 2010 11:41:45 -0400
From: Eric Brunner-Williams <ebw@xxxxxxxxxxxxxxxxxxxx>
Organization: wampumpeag
To: Gnso-vi-feb10@xxxxxxxxx <Gnso-vi-feb10@xxxxxxxxx>


There are two notes to the list, one submitted on 8/16, and one
submitted on 8/9. The note submitted on 8/9 is organized as four
sections addressing kinds of "Harms", and harms statements from
Register.Com, Afilias and PIR.

To keep this note to one page I only discuss the 8/16 note.

The 8/16 note is organized as two "Harms to" sections, the first harms
to consumers, the second harms to businesses, and a section on cost
and a section on liability.

1. The first section has an "a" part and a "b" part.

The first claim in the "a" part argues "[vi] could [lower prices]
therefore [structural separation] will [increase prices]". If the
"will" were replaced by "may" the reasoning would not be necessarily
incorrect.

The second and third claims of the "a" part are restatements of each
other, and recite the conclusion of the first claim.

The "b" part makes two unrelated claims.

The first amounts to the observation that at least one registrar will
not offer all TLDs, a fact pattern which exists presently, and claims
therefore that the lack of one or more vertically integrated
registry-registrar combines "may prevent sales of domain names to
people who want to buy them".

As the fact pattern exists presently, the claimed harm must be present
also. However, the harm is insufficient to cause policy to reduce or
remove the present harm, so the claim is insufficient.

The second amounts to the claim that third party rights protection
under the existing registry registrar system cannot scale, and
therefore the registry registrar system must end. This is inconsistent
with the IPC's work since Mexico, the IRT generally. For the claim to
be sufficient, the IPC must abandon its proposed set of mechanisms.
Failing that, the claim is insufficient.

2. The second section makes four claims. The first is that business
conduct will be restricted. The second restates the first. Again, the
fact pattern exists at present, Verisign and Network Solutions are not
permitted to merge, so the claimed harm must be present also. And
again, the harm is insufficient to cause policy to reduce or remove
the present harm, so the claim is insufficient.

The third claim again amounts to the observation that at least one
registrar will not offer all TLDs, a fact pattern which exists
presently, and claims therefore that the registries not structured as
vertically integrated registry-registrar combines "may find either no
distribution channel, or a substandard one."

As the fact pattern exists presently, the claimed harm must be present
also. However, the harm is insufficient to cause policy to reduce or
remove the present harm, so the claim is insufficient.

The fourth claim invents a registry which does not register domain
names, and finds an absurdity.

Registrars with profoundly restricted pattern of registrations exist
at present, e.g., IANA #16 (AOL), IANA #345 (VGRS), IANA #365
(Educause), IANA #1330 (Microsoft), ...

The "absurdity" claim must relieve these actual registrars of the
burdens of ICANN Accreditation if it must relieve hypothetical
registries which do not register domain names of the burdens of the
registrar function being provided by structurally separate entities
enjoying equal access.

3. The third section's claim is simple. Policy enforcement has a cost,
the cost will eventually "trickle down" to consumers.

As ICANN policy is not "lowest price", this claim is without merit.

4. The forth section's claim is also simple. Restriction on
integration may cause liability risk.

As the US DoJ has not intervened under the present 15% cap rule, this
claim has no more merit than the claim that the present restriction
may cause liability risk.

In sum, there is little in the 8/16 note which is useful.


No offense is intended to the authors of the 8/9, or 8/16 contributions.

Eric