One or two PDPs?

Mon Jan 25 22:11:49 CET 2010

Just a quick note/reminder to everyone - the 3 NCUC Councillors and the 3 other NCSG Councillors will need to decide on how to vote on the 2 possible motions on vertical integration.

The motions will be debated and voted on this Thursday 28 January during the Council call-in meeting.

Currently the 2 motions are either to (1) delay a PDP for a year (proposed by the Registrars); or (2) initiate a PDP (along fairly broad lines to look at vertical integration for both new and existing gTLDs, proposed by the Commercial Stakeholder Group).

I do not know if it will be possible to have a consensus position within the NCUC in time. Our not having one will not stop the clock or hold up the vote, so I'm still hoping more members will weigh in on this issue.

Thanks,
Mary

Mary W S Wong
Professor of Law & Chair, Graduate IP Programs
Franklin Pierce Law Center
Two White Street
Concord, NH 03301
USA
Email: mwong at piercelaw.edu
Phone: 1-603-513-5143
Webpage: http://www.piercelaw.edu/marywong/index.php
Selected writings available on the Social Science Research Network (SSRN) at: http://ssrn.com/author=437584

>>> 

From: Avri Doria <avri at LTU.SE>
To:<NCUC-DISCUSS at listserv.syr.edu>
Date: 1/24/2010 5:32 PM
Subject: Re: One or two PDPs?
dear Dr. Professor Mueller,

If you knew anything about me, you would know that i never think any argument is obvious.  But it was a good bit of rhetoric and I applaud you for your clever use of misdirection.  I am afraid I could never be as clever as you in my argumentation, but you already know that, I am sure.  I will do my best to answer what I see as the relevant points in your message.

What I claimed was obvious, or so I thought, was the position i was taking on the question of 'one or 2 PDPs'.  And I thought it was obvious from things I had said previously that I was supporting the notion of a single PDP on the topic that would completed within 2-3 months.

I appreciate again, that you, Milton, do think I am too dim too understand the great wisdom you bring to the discussion.  Personally I think. perhaps, your wisdom is so great it has obscured the point I have been trying to make.  

I have no problem seeing that by definition in rigorous academic systems of dividing one thing from another so that they can be pigeonholed and understood as pure categories, that it is possible to say that Vertical Integration within a single company is different from a joint marketing arrangement or cross-ownership and affiliations. Of course, by definition it is.  And if the real world bore anything other then a passing similarity to the academic projection of that world you might be able to shout QED from the temple top.

But in the real world, the properties that make vertical integration sometimes harmful are the same attributes that can make some affiliations and joint marketing arrangements harmful.  In other words the categories are not as isolated as the academic definitions makes them out to be,  The issues are conflated and trying obscure that with academic absolutism just does not help solve th real problems - when is it to consumer's advantage to allow things such as VI and joint marketing and when is it to their detriment.  

I am arguing that is impossible to tackle what you call the short term as a stand alone issue because it is more complex and more interrelated then your academic categories allow for.   

What you have also refused to acknowledge is that the GNSO has shown that it can tackle a difficult issue within a constrained time frame and you make the seemingly erroneous claim that it has never done so.    We have seen several cases where it has done so with issues that seemed intractable before the GNSO committed to do the work quickly.  And while I don't necessarily agree with the outcomes of these efforts (the exercise that resulted in the bicameral council and the STI), they did reach a consensus point as defined by ICANN.  In this case you raise the FUD (Fear Uncertainly and Doubt) of economic studies and multiple working groups and issues reports etc that will delay new gTLDs.  But the economic studies have been done already on these topics and the work can be done quickly with properly constrained set of questions in a charter.  And we only need another issues report if we ry to initiate 2 PDPs.  Predominantly what remains is for there to be a discussion on the policy that should be followed based on those studies that have already been done and debated extensively.  This issue has been studied at great expense by ICANN - lets use the information gained by those professionals and discuss the proper policy.

Finally the question you allow for in what you term  'the short term PDP,' to my mind not the important question, as I expect (though of course i cannot know for sure) the answer will be 'well that depends on the detailed arrangements and the condition that exist in this so called affiliation' - bringing us back to the full question.  It is not whether it is an affiliation or a VI proper that is the issue, it is the conditions that pertain to that relationship and whether they cause detriment or harm to the consumer.  The policy needs to be reviewed and if necessary fixed and does not need a quick hack like 'affiliation is ok up to 100,000 names.'

Finally, it is so kind of you to support the second PDP on my behalf, however, I do _not_ support that second PDP and to say you support me in it is once again misdirection.  I support one PDP done expeditiously to answer the question properly both in relation to DAGv3 and the fuller issue.

It was you that set us on the course of this PDP with your paper, and it was you that made us study the information and come to our own opinions of what needed to be done. It is now unfortunate that you are trying to thwart the process by refusing to allow the rest of us to reach own conclusions without being bullied or belittled.

cheers,

a.

On 24 Jan 2010, at 05:05, Milton L Mueller wrote:

>>-----Original Message-----
>>From: Avri Doria [mailto:avri at psg.com]
>>In case it is not obvious i think separating this issue into 2 PDPS is a
>>really bad idea. Twice the work, twice the bureaucracy for a topic that is
>>essentially interrelated.
> 
> It is not obvious. You clearly do not understand the full implications of a PDP on true vertical integration of Registries and Registrars. VI implies an end to equal access for all registrars to all registries. As I noted in my original objection to the resolution, allowing true vertical integration, and especially the issue of making special contractual and fee arrangements for private TLDs, implies a radical revision of the basic ICANN regulatory framework that has been in place since 1999. 
> 
> A PDP on that topic will have to deal with multiple issues and major battles over economic interests. It would rival the new gTLD process in scope and depth. Remember, the new gTLD process took _3 years_ to be completed, and then another year and a half for the "implementation" to be worked out. And I think we would both agree that a lot of those so-called "implementation" battles were really policy battles refought. And we are still not done with it! A PDP that opens up this larger, longer-term can of worms will be a long one. It WILL delay new gTLDs if it is made a precondition for a new Applicant Guidebook. And Avri, whatever you say about the bylaws constraining the time period for a PDP, anyone who has been on the Council as long as you have knows that no PDP on any serious issue has EVER conformed to that time limit. Think Whois, new TLDs, etc. Never. 
> 
> By way of contrast a PDP that asks the question "is Joint marketing and Cross ownership a policy change or an implementation detail?" is a very narrow, short-term issue. It is relevant only to the DAGv3 and its immediate predecessor. 
> 
> That question can be answered relatively quickly. It will not require new economic studies. It will not require new policies to be defined. It will only require a determination by the GNSO that JM/CO is or is not a policy change. 
> 
> You are also quite wrong that the two topics are interrelated in a way that makes separate PDPs on them duplicative. Answering the question "is Joint marketing and Cross ownership a policy change or an implementation detail?" does not answer ANY of the larger questions about private TLDs or whether vertical integration should be allowed and if so when and how. Even if there were one PDP, a bundled PDP would still have to answer _multiple_ questions. Each of those questions would require a separate working group, staff reports, difficult consensus, etc. 
> 
> Please note that I oppose a PDP on the second, short-term topic. I agree with the registrars that JM/CO is within the bounds of implementation. However, I am willing to propose the option of a separate PDP to accommodate the views of people (like you, Avri) who seem to support it. If I had my way, there would be only one PDP and it would be about VI and the long-term issues. This is, in other words, a compromise position that strays pretty far from what I believe should be done. I hope you will approach moving forward in the same spirit, Avri.
> 
> I ask that the Council re-draft its GNSO council resolution along those lines, dividing the PDP proposal into two separate ones. I also ask that members of the NCUC who agree with me (or disagree with me) to please express their views. 
> 
> --MM
> 

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