Re: [ga] Re: Board descisions

[Jeff Williams <jwkckid1@ix.netcom.com>]

Alexander and all remaining assembly members,

Alexander Svensson wrote:

> Hello Roberto!
>
> > I believe that, if there is the need to improve or better clarifie some
> > specific points in the current contract, this can be achieved just by
> > agreement of the parties without necessarily changing at the same time the
> > decision about separation between Registry and Registrar.
>
> After having read James Seng's mail
>   http://www.dnso.org/clubpublic/ga/Arc06/msg01029.html

  Yes, this was interesting reading.  However some points were
either overlooked in Jame's comments or just not really thought of...
Verisign under either agreement could effect the same potential,
for instance.

>
> about a way VeriSign could follow the old agreement to
> the letter, but keep their de facto power, I have been
> trying to find out more about this. Bret Fausett asked
> something similar at the Public Forum in Melbourne:
>   http://cyber.law.harvard.edu/icann/melbourne/archive/scribe-icann-031201-pf.html

  Yes I believe you are referring to this question:
"B.   Fausett (#1252): Verisign said it might outsource all registrar and customer
service functionality back to Verisign for a    fee. Only change would be Verisign’s
share of profits, while technical services, customer support, trademarks, etc. would
remain the same. Would this be adequate (in ICANN’s view) under the November 1999
agreement?"

 to which Joe Sims and Vint Cerf replied:

"1.   Sims: If and when we have to deal with the question of what constitutes a legal
separation under the agreement, we    will make our views known to Verisign. But have
not gotten to that point with Verisign yet. Are not in a position to say without
knowing the details.
          2.   Cerf: Can Verisign sell the business to someone who retains Verisign to
operate the business for them?
          3.   Sims: If a “sham” transaction, it wouldn't be acceptable to us.
Question is whether the assets come under separate ownership."

>
>
> I am now doubtful as to whether VeriSign's understanding
> of option A is the same as our understanding, and if a
> *pseudo divestiture* really worked out, it would be the worst
> case scenario IMHO:
> -- VeriSign continues to control com/net/org at least until
>    2007, if not longer -- thus remains the dominant *registry*

  Maybe yes and maybe no.  But likely yes....

>
> -- VeriSign secures a dominant reseller/pseudo registrar
>    position by a strategic alliance with the NSI acquirer,
>    maybe even using the NSI name

  Also possible, but not a really big deal necessarily.

>
> -- VeriSign pays less than the new TLD registries (which
>    additionally all are registry-registrar-separated)
>    while having longer contracts

  This one was a "Gimme" at the time....

>
>
> Let me expand:
> In the time of the original agreements, it seemed to be
> a clean split. There was the company Network Solutions
> providing both registry operator and registrar services,
> so divestiture meant cutting the company in halves.

  No it was never a "Clean Split".  And it shouldn't have seemed so
either...

>
> Nowadays things have changed: After the purchase of NSI
> by VeriSign, there are additional services in question,
> some relating more directly, some more indirectly to
> domain name registration. You obviously don't have to be
> an ICANN-accredited registrar to sell domain names --
> e.g. CORE members are registering *via* CORE. If it was
> possible to circumvent the divestiture requirements in
> the old agreement (II.23) by opening a reselling business,
> this could be VeriBad, and there can be no doubt VeriSign
> would do it if the courts allowed it to.

  That's a BIG if.  But possible.  Again I don't see this as
argument for "Option B/New Deal".

>
>
> It's of course very difficult for someone who isn't into
> US contractual law to judge whether this would be possible,
> and it seems that the views of lawyers on both sides of
> the negotiating table have been differing, too.

  Oh it is possible, but not likely...

> The lack
> of time to tackle these questions thoroughly is frustrating,
> but the threat of a pseudo divestiture should probably be
> looked at seriously. (This may be one of points VeriSign
> wouldn't mention and ICANN cannot mention without
> endangering its position in possible future court proceedings.)
>
> To return to your (Roberto's) mail: I'm not sure whether
> the "clarification" of II.23 in the current contract
> would be resolved amicably. Or in a way that is beneficial
> to the Internet at large.
>
> Best regards,
> /// Alexander
> --
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Regards,

--
Jeffrey A. Williams
Spokesman for INEGroup - (Over 118k members strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
Contact Number:  972-447-1800 x1894 or 214-244-4827
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208


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