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: [log in to unmask] > 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 <[log in to unmask]> > To: <[log in to unmask]> > 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:[log in to unmask]] > >> 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: [log in to unmask]