RE: [ga] FW: Comment from the gTLD Registry Constituency

["Karen Elizaga" <karen@elizaga.name>]

Dear Don,

The current form of the registry agreements that the gTLD registries are subject to in the current ICANN forum is not an "inequitable deal."  As you might imagine, no business could have created a justification for signing a deal which gives another party complete control over what we are obligated to do.  In fact, the current form provides the gTLD registries with certain protections from exactly that - we are only required to adopt policies that have been devised based on "consensus" among Internet stakeholders in the ICANN process.  As Internet stakeholders under the current structure, we theoretically have a say in these policies and therefore have not given up total control over what we are obligated to do.

As this restructuring process continues to evolve, we believe that the distinction between users and providers within the GNSO is of paramount importance to maintain the protection that was contemplated in the registry agreements.  This protection will be made obsolete if the GNSO composition, where contracting parties are outnumbered by user groups, results in consensus being determined by the majority within that GNSO structure - where the user groups would be able to simply dictate "consensus" notwithstanding the fact that the contracting parties are the ones who are materially affected in implementing new policies.  

Thus, your interpretation of the deals struck between any of the registries and ICANN is not entirely accurate.  They were not bad deals at their execution; rather, the deals will have devolved by virtue of external forces outside of our control.

Regards.
KE

-----Original Message-----
From: Don Brown [mailto:donbrown_l@inetconcepts.net]
Sent: 30 September 2002 01:40
To: owner-ga@dnso.org; Peter Dengate Thrush
Cc: ga@dnso.org
Subject: Re: [ga] FW: Comment from the gTLD Registry Constituency


Jeff,

I completely understand your dilemma of having potentially "moving
target" contractual obligations.

Frankly, it's not very good business to sign a contract which gives
the other party control over what you are obligated to do, from time
to time and at their sole discretion, as well as the ability to
dictate what you can charge for doing it. Conceivably, you could find
yourself with an eroded margin and even operating at a loss in a worse
case scenario. I'd say that is a very big business risk.

Understanding the risk, as no doubt you do from your post below, what
was the motivation to sign such an inequitable deal? Was it an
abundance of faith at the time, dollar signs which blurred the vision
or something else which I can't imagine right now?  Certainly, no one
duressed a signature, I'm sure.  At least, there is no complaint about
that below.

Having a contract is, indeed, very different.  It gives contractual
rights and imposes obligations.

I'd bet that most people in the GA wished that the GA had a contract
for those reasons, as well. I'd bet that most would, in fact, welcome
it, right now.

ICANN's consensus building process is a joke, in light of WLS. The
ICANN Board will do whatever they want and the contract holders, like
you, certainly seem to have much more power than the grass root domain
name holders - ala GA, et al. They completely ignored the top
recommendation from the NC (task force) and all input from the
outreach, to approve WLS, regardless. Perhaps, due to the concerns
express below, Chuck can be available to you for some moonlight
consulting.

Market forces will dictate contract negotiations with ICANN, just like
any other firm.  If the deal isn't right, that's a business decision
to make.  However, signing an inequitable deal is not sufficient
justification for more representation and control than the grass roots
domain name holders.  If you make a bad deal, well, shame on you, but
that's not my fault or anyone elses' fault.  Consequently, it is not
equitable for us to pay the price for a problem that you created and
brought upon yourself.

In the final analysis, it's the grass-roots stakeholders who have the
most to lose, who merit equitable representation and who have been
denied it. They didn't "knowingly" make a bad or risky deal. If you
did, well, that's too bad. You can always bow out at the end of the
contract, though, but the grass roots will still be the grass roots.
Without them, heck, none of this would matter, anyway.

Thanks,


Sunday, September 29, 2002, 5:05:04 PM, Peter Dengate Thrush <barrister@chambers.gen.nz> wrote:
PDT> comments below
PDT>   ----- Original Message ----- 
PDT>   From: Neuman, Jeff 
PDT>   To: 'ga@dnso.org' 
PDT>   Sent: Saturday, September 28, 2002 10:24 AM
PDT>   Subject: [ga] FW: Comment from the gTLD Registry Constituency


PDT>   This is from the gTLD Constituency and has been sent to the ERC Committee.  I know this should spark some interesting debate.

PDT>   Subject: Comment from the gTLD Registry Constituency


PDT>   >The Registry Constituency has been a vocal supporter of reform from its inception.  In fact, many of the Registries joined in a letter to the Department of Commerce expressing our support for
PDT> the reform efforts.  One of the main reasons that we supported ICANN reform from the beginning was because of the perceived inefficiencies of the current DNSO. The result of such inefficiencies
PDT> has led those parties that have contracts with ICANN (namely, the gTLD Registries and gTLD Registrars) to become disenfranchised with the current policy development process.  

PDT>   Jeff - there's some irony in this. Its not the inefficiency of the DNSO which you were objecting to, it seems, buts its efficiency in "disenfranchising" you and the registrars.

PDT>   >Too often, political games have been played to overshadow the voices of the Registries and the Registrars in the current process, even though it is recognized that most, if not all, of the
PDT> proposed policies affect the contracted parties in a way that is much different than those parties that are not under contract with ICANN. Unfortunately, as the ERC process has evolved, the
PDT> inefficiencies of the current DNSO appear to be re-emerging.

PDT>   Again, you describe a political result you don't like as an "inefficiency".

PDT>   >As the ERC properly realized, not all stakeholders are equally affected. 

PDT>   >The registrars and registries are contractually bound to comply with any ICANN consensus policies.  New or changed policies can have a significant financial impact on their operations.  We
PDT> believe that the protection of registrar and registry rights as contracting parties within the proposed GNSO is an important and essential safeguard. 

PDT>   Here is where your argument becomes more difficult for me to follow. You seem to be elevating the contract between you/registrars and ICANN to a different level of political importance than
PDT> the contract beteen a registrant and a registrar. Why? 

PDT>   Given that all the funding flows from registrants to registrars, that the conditions of end use, and that much of the ICANN policy discussion is about the impact on users of names and address
PDT> procedures, why isn't the view of the vast numbers of registrants significantly more important than the views of the providers??

PDT>   Why shoudn't the g registries be obliged to adopt at least a little of the ethos (which we regard as contractually binding via RFC 1591, as well as socially appropriate) binding the cc
PDT> registries, that the registry has to serve the community its provided to serve? Why shouldn't the structure require the registries and registrars to sit around the table with their user
PDT> community?

PDT>   If the conditions of the user community result in a business which is unprofitable, or unsuited, those entities running them can take a busines decision to leave that business. If, on the
PDT> other hand, the conditions imposed by registries and registrars are unsuitable for users, where can they go?

PDT>   My personal preference would be to ensure that users rights should be more carefully protected that those of registries and registrars, precisely because they are typically small, individual,
PDT> disparate and the economic effect per person makes any issue uneconomic to fight. OTOH registries and registrars have well-known economic and political advantages.

PDT>   You blur this issue to speak of "contracting parties" while ignoring the end user contracts.

PDT>   There is a need to balance the undoubted importance of successful and innovative registries and registrars, competing in an economic battle for business, with the needs of users.  Considerable
PDT> clarity of thinking is need to ensure all interests are kept in balance.



PDT>   regards




----
Don Brown - Dallas, Texas USA     Internet Concepts, Inc.
donbrown_l@inetconcepts.net         http://www.inetconcepts.net
PGP Key ID: 04C99A55              (972) 788-2364  Fax: (972) 788-5049
Providing Internet Solutions Worldwide - An eDataWeb Affiliate
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