[nc-whois] bulk access fees: cost-based pricing?
While the recommendations of wg 4 go into the right direction in
many aspects (for instance, attempting to restrict bulk access in
3.3.6.1, and attempting to cut down illegitimate uses in 3.3.6.6), I
have some reservations.
These reservations are strongest as far as the recommendations on
3.3.6.2 are concerned:
>It would seem that providing registrars with a financial incentive
>to provide bulk access to data would encourage such activity,
>while simultaneously deterring those third parties with a
>legitimate need from accessing the data in bulk. We would
>recommend allowing the registrar only to charge a third party for
>its actual costs of providing electronic copies of the data on a
>regular basis to the third party.
Leaving any semantic debate about the questionable concept that a
fee deteres "legitimate use" aside, the recommendation fails to
explain why it should be ICANN's business to regulate the price for
bulk access to WHOIS data when ANY "legitimte use" is concerned.
After all, legitimacy of a use does not automatically imply that
the data for this use must be supplied for a cost-based fee.
The only justifications I can see for this kind of intervention are
these:
- Competition concerns. RAA 3.3.7 points into this direction. The
question is if this concern still applys in today's domain name
market.
- Uses which benefit the whole community and which would become
impossible without cheap bulk access. Public research and -
maybe - query-based services come to mind.
(With query-based services, there's an obvious conflict between
privacy desires and the desire not to one-sidedly foster certain
commercial activities. But maybe the provision of such services
could be assigned to a non-for-profit which charges a cost-based
fee... This may require more thinking.)
In short, "legitimate use" or "legitimate interest" in the
availability of certain data is, IMHO, _not_ a justification for
ICANN imposing such strict price limits. Also, it'll be hard to
enforce the notion that a certain use is not "legitimate" - how's a
legitimate business's use of WHOIS data "illegitimate"?
I could imagine that the current version of 3.3.6.2 could make a
whole lot of sense with a more restrictive 3.3.6.1 which explicitly
lists the purposes for which ICANN-mandated bulk access is
available; such a list could also be easier to enforce than the
muddy notion of "legitimacy" in the current recommendation for
3.3.6.1. With that approach, the provisions could indeed be
simplified a lot: Ultimately, ICANN could mandate availability
- of full WHOIS data (without any opt-in or opt-out provisions),
- at a fee based on registrars' actual cost,
- under a non-transferrable license ("mandatory 3.3.6.5").
Everything else would then be left to registrars themselves, to
their agreements with registrants (and data users), and to
applicable privacy law.
Kind regards,
--
Thomas Roessler <roessler@does-not-exist.org>
On 2002-09-09 10:51:28 +0100, Karen Elizaga wrote:
>From: "Karen Elizaga" <karen@elizaga.name>
>To: <andrews@epic.org>, <mcade@att.com>, <gcore@wanadoo.fr>,
> <tmdenton@magma.ca>, <Laurence_Djolakian@mpaa.org>,
> <Troy_Dow@mpaa.org>, <gilbert.lumantao@lycos.com>, <baf@fausett.com>,
> <philg@grabensee.com>, <harris@cabase.org.ar>, <mjuliano@att.com>,
> <k@widgital.com>, <metalitz@iipa.com>, <rmohan@afilias.info>,
> <hakik@sdnbd.org>, <orobles@nic.mx>, <roessler@does-not-exist.org>,
> <kstubbs@digitel.net>, <abel@able-towers.com>
>Date: Mon, 9 Sep 2002 10:51:28 +0100
>Subject: Working Group 4 Draft
>
>Whois TF Colleagues,
>
>Attached is a draft evaluating the current bulk access provisions,
>reflecting the work/thoughts of working group 4. We will be
>outlining the points of this draft on this afternoon's call. We
>look forward to your feedback.
>
>Regards.
>KE
>
> <<Bulk Access Recommendation 090902.doc>>
>
>Karen Elizaga
>Vice President - Policy
>Global Name Registry
>125 High Holborn
>London WC1V 6QA UK
>Tel: +44 (0)20 7025-2231
>Mob: +44 (0)7740 871-698
>Fax: +44 (0)20 7242-9105
>Email: karen@elizaga.name
>Web: www.name
>
>
>
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Bulk Access Recommendation 090902.doc |