Re: [ga] ICANN Negotiations -- A Play in Three Acts

["kidsearch" <kidsearch@xxxxxxxxxxxxx>]

George, you are so entertaining! I loved it. Anything is possible.


----- Original Message ----- 
From: "George Kirikos" <gkirikos@xxxxxxxxx>
To: <ga@xxxxxxxxxxxxxx>
Cc: <vint@xxxxxxxxxx>; <twomey@xxxxxxxxx>; <jeffrey@xxxxxxxxx>;
<biz-tld-agreement@xxxxxxxxx>; <info-tld-agreement@xxxxxxxxx>;
<org-tld-agreement@xxxxxxxxx>
Sent: Thursday, August 24, 2006 2:45 PM
Subject: [ga] ICANN Negotiations -- A Play in Three Acts


> Hello,
>
> --- "Michael D. Palage" <Michael@xxxxxxxxxx> wrote:
> > My personal opinion is that ICANN needs to focus on preventing a
> > registry operator due to its sole source contract from abusing that
> > position within the marketplace by allowing discriminatory pricing.
> > If a
> > registry operator is merely imposing an equitable pricing model on
> > the
> > same class of domain names, that is not discriminatory. As Vint
> > properly
> > noted in his email, it would be virtual suicide for "most" registry
> > operators to abuse this discretion. George and I have discussed on
>
> I think Vint (and it appears Michael, given he described it as
> "properly noted") underestimates the determination of registries to
> engage in discriminatory pricing. If it is supposedly "suicide", why
> negotiate a power into a contract that one does not intend to use? If
> it's a power one would never use, it means it is costless to remove
> that term from the contract.
>
> It's a simple negotiation.
>
> "Registry: We would *never* do that.
> ICANN: Great. Let's write it out of the contract.
> Registry: Done."
>
> Instead, we see something like the following, one might imagine:
>
> ACT I: A fancy restaurant overlooking a beautiful harbour, lunchtime.
> ....
> Registry: We would *never* do *that*.
> ICANN: Great. Let's write it out of the contract.
> Registry: (silence)
> (more silence)
> (the sound of crickets is heard chirping in the distant mountains)
> ICANN: Sorry, I must have mumbled? Did you hear me? Let's write it out
> of the contract.
> Registry: Hmmm, I'm not sure I'm authorized to do that, today.
> (a bead of sweat rolls down his temple)
> ICANN: But you just said you'd *never* do *that*?
> Registry: Yes, you are *absolutely* correct. We did just *say* we would
> *never* do that.
> (winks) I am glad ICANN is listening to us.
> ICANN: So, are we ready to write it out of the contract?
> Registry: Let's not be too hasty. The contract might be perfect just
> the way it is. We wouldn't want to meddle with perfection, would we?
> ICANN: I think we all agree, we would not want to meddle with
> perfection.
> Registry: Great.
> ICANN: So, we're not going to write it out of the contract?
> Registry: I never said that. Maybe we can discuss this over dinner. We
> all want to do the right thing. (smiles)
> ICANN: Of course, we all want to do the right thing. (smiles) (pauses)
> That is ICANN's mission!
> Registry: Yes, it is. You are absolutely correct. I'm glad we are
> discussing this. It demonstrates that ICANN is listening. The public
> doesn't appreciate how well ICANN is listening!
> ICANN: Thank you. We are always listening. We're happy that you agree
> that we are listening. You've been so supportive publicly, saying that
> we are listening. So, you're never going to do *that* right?
> Registry: We've always *said* we would never do *that*.
> ICANN: So, just to be clear. It will never happen or be introduced. Do
> I have that correctly?
> Registry: Doing that would be suicide! A registry who did that would
> lose the trust of the public! How can you ask us whether it will
> happen? (sits forward in seat, glaring)
> ICANN: If it was suicide, it would be true, it could never happen.
> (slumps back in chair)
> Registry: I am glad you are listening to us. You make so many logical
> points. It's a pleasure negotiating with you. (wink)
> ICANN: Thank you. (blushes) So, it's impossible that *it* will happen,
> then?
> Registry: We have *said* it repeatedly, we would *never* do that. You
> know, *anything* is possible. Martians might show up tomorrow, the
> planet could explode, quantum uncertainty,....
> ICANN: I'm glad you remembered I studied science! We know each other so
> well, having spent so much time together. (smiles)
> Registry: Yes, and how is the family?
> ICANN: They're great, thank you for asking. (blushes) But, getting back
> to the contract, you don't think it needs to have a new term added?
> Registry: We never said that. We are open to a long-term fruitful
> partnership with ICANN, and will always do the right thing.
> ICANN: Maybe we should study this issue further?
> Registry: That's a great idea! But, rest assured, I think we agree, we
> will always do the right thing. I think you can safely tell people,
> without further study, it would be suicide and registries will always
> do the right thing. We are willing to go on the record on that point!
> ICANN: So, we can tell people, it would be *suicide*? But, it would
> still be possible, right?
> Registry: Anything is possible. You can tell people, it would be
> *suicide*.
>
> ICANN responds to George: "It would be suicide for a registry to do
> that."
>
> Act II: One year later.....ballroom of a five star hotel
>
> Shareholder at Registry annual meeting: I'm proud that our management
> has increased its profits by 500% in the past year, through the
> introduction of tiered domain name pricing. They all deserve a raise!
> Registry Management: You are all so kind. *beaming* I have said it so
> many times before, but I'll say it again. We will always do the right
> thing *for our shareholders*.
>
> Act III: ICANN Meeting with Registry, at ICANN HQ
>
> ICANN: We're taking a lot of heat from domain registrants and the
> public now that you  raised prices so much, and introduced tiered
> pricing. We have to do something! (look of desperation in eyes) You
> betrayed us, and said it would never happen!
> Registry: I distinctly remember saying that anything is possible.
> ICANN: We have to do something!!
> Registry: We have a contract. Period. We expect ICANN will respect
> what's in the contract. Don't make me bring this up with our lawyers.
> We feel we are solid on this point.
> ICANN: Yes, but you told us you would *never* do *that*!!!!! (jumps up
> and down)
> Registry: Have a seat. You're making me nervous. Have a drink. (fills
> glass). You are absolutely correct, we *did* say that. But,
> circumstances change. What's important is that we have a contract. We
> have a fiduciary duty to our shareholders to do the right thing to
> maximize shareholder value.
> ICANN: THE RIGHT THING??!!?? THE RIGHT THING?? (hyperventilating)
> Registry: We have always said, we will do the right thing.
> ICANN: What are we going to do!!!!!
> Registry: Well, we *could* always open up the contract for
> modifications. We see some possible improvements. We think a win-win
> might be possible. We don't *have* to do this, but ICANN is our
> partner, and we believe in a long and fruitful relationship.
> ICANN: (breathing a sigh of relief) So, you're going to stop doing
> *that*?
> Registry: No, we never said that. We have a contract. That item is
> non-negotiable. But, perhaps we can find other areas of improvement.
> ICANN: Yes! I'm glad you are willing to offer us that olive branch.
> Registry: You're like a member of the family to us. You are important.
> We will do the right thing.
> ICANN: Whew. I knew you were a good guy.
> Registry: I am glad that ICANN is listening to our concerns, and values
> our relationship.
> ICANN: We are always listening. That's part of our mission!
> Registry: Yes, and you fulfill that mission with EXCELLENCE. You are a
> star!
> ICANN: You are so kind. (blushes)
> Registry: I figure we can spend a few months working on amending the
> contract. Let's target the end of July, for a final draft. That'll give
> you time for summer holidays to relax.
> ICANN: That sounds great. You know I have family, and appreciate the
> time off in August.
> Registry: Yes, we know each other so well. You are almost a part of my
> family. (wink)
> ICANN: And we'll let the public have a comment period in August, and be
> ready to make a recommendation to our distinguished Board in September.
> Registry: Yes, we can't leave out the public comment period. I've said
> it before, and I'll say it again, this registry appreciates that ICANN
> is listening, and will take into account the views of the Public.
> ICANN: That is our mission!
> (Curtain Closes)
>
> THE END
>
> :)
>
> > As I tried to discuss with George on the Business constituency list,
> > I
> > believe the provision in the new registry contracts to refer to
> > "appropriate governmental competition authorit[ies]" matters
> > involving
> > new registry services (i.e. differential pricing) is very important.
>
> And as I said on the Business Constituency list, a contract that
> *requires* registrants to lobby governments in order to protect their
> interests is fundamentally flawed. Registries spend a lot more on
> lobbying (and on consulting for that matter -- what's a registry
> consultant doing in the BC again?? I don't see much ecommerce happening
> at the website www.palage.com with 2 words on it) than do individual
> registrants, who would otherwise need to pool their resources to
> challenge registry abuse.
>
> Furthermore, which government has the power to reign in registries?
> Will Neustar be bowing down to the Government of Cuba's competition
> bureau, or that of China? Or that of Canada? What will Canada do if
> Neustar refuses, stop shipments of maple syrup to the USA?
>
> > If I was still on the Board this is the one question that I would be
> > asking. Given ICANN's recent decisions to extricate itself from
> > overseeing registry pricing, are the governmental safeguards that it
> > has
> > in place adequate to protect domain name registrants. Given the
>
> "ICANN's recent decisions to extricate itself from overseeing registry
> pricing" -- Did that go through a GNSO Council review, or PDP? I don't
> think so. Indeed, there's a current PDP on registry services. Thanks
> for the insight that ICANN has already made a decision, and folks
> engaged in the PDP are wasting their time.
>
> Extricating itself from oversight of registry pricing is simply not
> representative of any bottom-up consensus process, and represents an
> ICANN failure, and an attempt by Staff to overthrow the wishes of
> domain registrants, the public, and ICANN's constituencies.
>
> Saying that "the government will protect us", when instead ICANN can
> negotiate proper bulletproof contracts that reflect the concerns of the
> public is basically a win for lawyers and consultants (Mike is both of
> those, what a coincidence....) at the expense of domain registrants, as
> lawyers and consultants will have lots of opportunities in the future
> defending registry abuses.
>
> Sincerely,
>
> George Kirikos
> http://www.kirikos.com/
>
>
> -- 
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