[ga] WLS: ICANN should approve it (and be sued for that).

[Thomas Roessler <roessler@does-not-exist.org>]

On 2002-08-22 21:45:16 -0700, Karl Auerbach wrote:

>To: George Kirikos <gkirikos@yahoo.com>
>Cc: ga@dnso.org
>Subject: Re: [ga] WLS Suggestion
>
>OK, you (and everyone else) convinced me.

I'm not so sure you should be convinced.  

At least my most important concerns about WLS are actually resolved 
in the general counsel's report:

 - The perverse incentives for registrars created by WLS - namely,  
   not extending existing registrations, and letting a WLS  
   subscription ripen - are kind of mitigated by the redemption grace 
   period.

 - The business model to hoard domain names in order to later sell  
   them off through WLS subscriptions (and subsequent "deletion") is  
   addressed by the agreement to prevent sponsoring registrars from 
   placing WLS subscriptions on a domain name in the 60 days before 
   the name expires.  (Note that this restriction is messy and  
   entirely unnecessary when the current registrant wants to place  
   the subscription!)

   At the same time, this removes part of registrars' incentives to
   hoard domain names in order to unfairly compete about WLS  
   subscriptions - delete the name when a subscription is placed  
   through the sponsoring registrar, don't delete it when the  
   subscription is placed through a competitor.  
   
   (Actually, the version of this argument given by Louis in his 
   report is not accurate.)

   Once again, this is not the perfect solution - the correct  
   approach would be to mandate the point of time when registrars  
   send the DELETE command to the registry.

Note that these are genuine policy matters, and clearly within 
ICANN's scope.


The single most important concern which remains - and it's the one  
George and friends are emphasizing - is that WLS may put existing 
registrar-based approaches out of business.  The existing  
used-domain dealers demand that their business models be protected.  
I'm sorry to say this, but they are pretty close to Hollywood's  
crusade against the net in that - I think Bruce Schneier paraphrased 
the latest legislation around intellectual property like this: "They 
are creating a new crime, interference with a business model."

ICANN should not get into the business of prosecuting this "crime"  
in the registy/registrar market - and that's precisely what not  
accepting WLS would mean.  Don't let George's argument fool you,  
when he says that "changing the contract" amounts to "action" and  
"not changing the contract" amounts to a hands-off approach.  I'm 
sorry, George - this is (good, and, it seems, effective ;)  
rhetorics, and not an argument: Hands-off means that you let others  
do what they want.  Normally, that's equivalent to "do nothing".   
However, when to "do nothing" means to forbid an activity, a  
hands-off approach implies rubber-stamp approval.


Of course, this was only half of the argument, so far: I didn't  
address the fact that existing competition would be replaced by a  
_monopoly_.  It's the context in which I believe that protecting  
business models is a good idea and a requirement: When existing,  
lawful business models would be threatened by a new business model  
which can only be implemented as a monopoly.  There are two tests in 
this:

 - Does the new business model necessarily imply a monopoly service? 
   The answer is obviously yes.

 - Are the existing business models lawful?  Can current  
   expired-domain registration services compete without registrars  
   violating their accreditation agreements by letting others  
   control "their" transactions with the registry?  I'm not sure  
   that this question will ever be answered based on information  
   easily accessible to ICANN and the public.  But there are some  
   indications that the answer is "no".  Ups.
   
Given the lack of information, and given that this is a classical  
question for governments and courts to address, I believe that ICANN 
should do precisely that: Leave the question to governments and  
courts, i.e., do not address it in your decision.


Thus, ultimately, I would strongly recommend that ICANN approves  
this service - fully aware of the perspective that it will quite  
likely be sued for this decision.



Finally, there is one relatively deep point to this, well worth the  
board's attention - for the future, because it's too late to address 
this for WLS: It's Steven Heath's question whether new monopoly  
services based on the registry's data should automatically be the  
registry's privilege, or whether these services should be subject to 
a public bidding process.  

I'm not entirely sure whether Louis' argument that the .name 
services set a precedent for this actually works: After all, with 
.name the new service was introduced from the very beginning.  There 
may be some merit to treating services to be added later differently 
than services included in the original TLD concept.

-- 
Thomas Roessler                        http://log.does-not-exist.org/
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