Re: [wg-c] "Public" resources

["Kevin J. Connolly" <CONNOLLK@rspab.com>]

Milton Mueller <mueller@syr.edu> 08/07/99 07:07PM wrote:
>Ross Wm. Rader wrote:
>
>> Regardless of our different views on economic performance is
>> the larger
>> question of whether TLDspace should be administered as a
>> public resource or
>> not.
>
>Let me take a crack at this.
>If we use language carefully, the only truly "public" resources
>are ones that are not scarce and require no allocation or
>exclusivity.
>

This is a new and interesting use of the word "public" that I
have never seen before.

>For example, the works of William Shakespeare are in the "public
>domain." No one owns them. There is no scarcity--if I read,
>republish, or perform Shakespeare, I do not in any way reduce
>the works' availability to you. Shakespeare himself is long
>dead, so no one needs to administer or restrict its use on his
>behalf.
>
>That's a public resource.

This is the fallacy of composition, attributing to the whole that
which is true of a part. "Some public res is of such a nature as
to be irreducible to private and exclusive ownership, therefore
all public property can be so characterized" is a fallacy in form,
as well as incorrect in substance.

For example, the strand (the area of land lying between the
high- and low-water marks of the tide) is a public asset.  It's 
very scarce, highly prized, and reducible to private ownership.
The public welfare is best served by allowing some (but not all)
of the strand to be improved, but that does not automatically
require that the improvements be operated by the government
in all cases.  

What *is* required in all cases is that property, having been
imbued with a public trust, be operated for the ultimate benefit
of the public, rather than some favored class of cronies.

>
>As soon as a resource becomes exclusive or scarce, its use must
>be administered, and it is no longer truly "public" in
>character. We say that the US National Parks are "owned by the
>public." But this is not true. The national parks are owned by
>the US government and administered, if all goes well, *on behalf
>of* the citizens of the United States, which is a relatively
>small part of the global "public." All other forms of "public
>property" also refer to small segments of the public--townships,
>counties, states nations--and are actually owned by
>organizational entities that purport to act *on behalf of* these
>collective entities, but often do not.
>
>It is quite obviously

I was taught as a first-year law student that the use of the word
"obvious" is a fig leaf phrase, used to cover fields of mental nudity
with a simulacrum of intelligence.

> wrong to say that the public "owns" the
>parks, or that a public is capable of owning anything at all.
>Ownership means exclusive control, and the right to sell or
>transfer control. I am a member of the public, but I cannot sell
>Yellowstone Park or build a house upon it and live there. So, I
>do *not* own it. The US federal government owns it. I can, along
>with millions of other people, attempt to influence what they do
>with it. But that is not usually a very satisfying or meaningful
>form of ownership.

For some classes of assets, it beats the holy heck out of
allowing ownership to be captured by profit-driven enterprises,
like NSI.

>
>When you say the domain name space is a "public resource" I
>interpret it in this way:
>1) you do *not* mean that any memnber of the public should be
>allowed to exert ownership control over the root, i..e, add or
>remove TLDs.
>2) you *do* think that the domain name space should be owned
>entirely by ICANN and administered in the name of a "public."
>Just who this public is is never specified very well. 

The situation of the manganese nodules on the floor of the Pacific
Ocean is analogous.  Under the Law of the Sea Convention, these
nodules (like the other resources of the seabed) are declared to be
part of the common heritage of mankind.

We need to be open to a futurist vision of human activity, one which
does not keep tripping over the fact that cyberspace did not exist
(was not conceived of, I venture to say) fifty years ago.  That does 
not diminish its reality nor does it diminish our responsibility toward
future generations when it comes to shaping the fundamental policy
which will govern the use and future growth of cyberspace.


>When I
>look at ICANN's DNSO I see a group of no more than 200 people
>actively involved. Most of them represent very specific economic
>interest groups: TM/IP owners, ISPs, IBM, ccTLDs, NSI,
>registrars.

Some of us are not beholden to any such interest.  Some of us are
here because we want to be able to tell our grandchildren what we
did for them and not have to blush or confabulate.

>
>But let me give you the benefit of the doubt.
>
>If we say that the name space is a "collectively administered"
>resource and that the administrator is ICANN I can partially
>agree, but there are also implications or interpretations that I
>strongly disagree with.
>
>The agreeable part: there are aspects of domain name
>administration that require broad coordination across a variety
>of Internet stakeholders. There must, for example, be
>collectively agreed-upon rules for adding TLDs to the root. So
>it is fine for the businesses and user groups who are actively
>involved with and interested in Internet administration to come
>together and negotiate, via ICANN, some basic decisions about
>how the domain name space is coordinated, allocated, and
>assigned.
>
>The disagreeable parts:
>
>Collective ownership/administration by Internet industry groups
>should not be equated with "public" ownership. The latter is a
>pretentious and misleading claim of authority that does not
>exist.

Again we have an instance of the fallacy of composition, howbeit more
cunning, for here we see Prof. Mueller's attempt to garner the payoff from
the fallacious foundation he laid earlier.  Administration != Ownership.
Caretaker does not have dominion, but is rather subject to oversight.

ICANN's oversight derives from the constituency-based selection of its
governing board, and from the possibility (the very real possibility) that
if its practices do not comport with the lofty ideals that form ICANN's 
foundation, a proceeding in the nature of quo warranto is available to
decapitate ICANN and reconstitute its board.
>
>If by saying the TLD space is "a public resource" you are
>expressing an ideological hostility to profit-making business
>and market competition, I reject your contention.
>
On the contrary, profit is good :-) However, profit extracted from a public
concession, in excess of the ordinary economic profit (contrariwise, 
"Monopoly profit) is bad.  NSI's profits are monopolistic.  Likewise, any
entry in the root is potentially monopolistic.  The conclusion is that some
profit-insensitive mechanism must be found for allocating root entries.

Otherwise, we end up with people ranting and raving that they wrote out
a $1,000 check to Jon Postel first, wherefore, therefore, they "own" the
gTLD of choice, absolutely and forever.

>If "public resource" rhetoric is used to deny that ICANN can
>facilitate competition and innovation in Internet services by
>allocating property rights in TLDs to private businesses, then
>the premise is wrong and so is the policy. It is clearly
>*possible* for ICANN to delegate exclusive administration rights
>to TLDs. Some strong arguments hae been advanced as to some
>possible public benefits that might come out of it. These
>arguments must be dealt with on the merits. They cannot be
>dismissed by repeating an ideological mantras about "public
>resource."

It is certainly possible for ICANN to do this.  The terms on which it might
be done are less than obvious; and I daresay that any such delegation
must be subject to defeasance if certain ongoing conditions are not 
satisfied.

>
>You complain about the "monopoly" power of private owners but in
>reality the most significant monopoly in the picture is ICANN.

And the funny thing is that the author of the piece to which I respond
has accused the other side in this debate of engaging in rhetoric.

Really, it's becoming darned difficult to tell the difference between
Prof. Mueller and the compensated apologists for NSI.

>And ICANN's monopoly power 

There is an accepted measure of monopoly power, which is the
ratio of the retail sale price of the goods and services to the
average variable cost thereof.  (I've been wracking my brain for weeks
trying to recall the name of this ratio :-( (AVC is used as a real-world
approximation to marginal cost.)

My recollection is that ratios in excess of 5 or 6 are indicative of
market power so great as to be suggestive of monopoly.

NSI's ratio is approximately 15.  ICANN's is 0.  Nor is ICANN
(incorporated as a not for profit in a very strict jurisdiction and
in a high-profile position) likely to be able to have such a ratio
in excess of unity.


>is not made any less dangerous or
>easier to manage by dressing it up in the language of "public"
>or "community" ownership, as Javier always does. The "community"
>is divided. That should be obvious. We accomplish nothing when
>one faction claims that it "is" the community and thereby
>continues to deny that other factions, other ideas, and other
>legitimate interests exist.

As David Crocker has pointed out in other fora, the Internet Standard
of rough consensus enables those who judge the existence (vel non)
of consensus to disregard those voices who have been engaging in
disruption and hatchet jobs from the inception of the process.

I have no doubt but that the ICANN board will be able to identify the
Men with Hatchets in this WG.

Kevin J. Connolly
<As usual, please disregard the silly trailer which is an artifact
of this mail client and not under my control.>
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