One or two PDPs?

[Robin Gross]

Thanks, Mary.  And in addition to discussing this issue on this list
over the next few days, we (NCSG) have our policy discussion on
Wednesday (27 Jan.) 15:00 - 17:00 UTC.

How to proceed with the PDP on this is an important issue, so I hope
we can continue to work through the various issues together over the
next few days.

Thanks,
Robin




On Jan 25, 2010, at 1:11 PM, Mary Wong wrote:

> 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
> >




IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA  94117  USA
p: +1-415-553-6261    f: +1-415-462-6451
w: http://www.ipjustice.org     e: robin at ipjustice.org



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