Re: [wg-c] breaking up (names) is hard to do

[Kent Crispin <kent@songbird.com>]

On Mon, Aug 23, 1999 at 04:55:17PM -0700, Christopher Ambler wrote:
> > This points out one of the many problems I see with performance
> > guarantee contracts -- it fosters a legal arms race, where registries
> > try to come up with creative interpretations of those contracts, and 
> > ICANN is lost in continual low-grade legal warfare with the entities 
> > it is supposed to regulate.
> > 
> > Such a scheme is sure to either fail, or lead to a large-scale 
> > expensive bureaucracy for ICANN.  Neither of these are desirable.
> 
> Then what do you propose?
> 
> Re-bidding only limits the time that this arms race can take place,
> probably making it even more frenzied.

Dynamics of the situation don't need to work that way -- mostly, you 
expect that the incumbent registry operator would try to do a good 
job, because it hopes to win the new bid.  I should point out, BTW, 
that the rebid is not required to only consider cost.  Other 
factors, such as current experience, the unavoidable costs of changing, 
and the risks of instability, are certain to be considered, as well.  
In other words, the bids will be evaluated on a number of criteria, 
and simple low-ball bids will be rejected.  

Sometimes it helps to go back to first principles.  The most
important criteria is stability of operation -- that is the number
one criteria in the White Paper, the Green Paper, and in ICANN.
That is, a stable DNS is more important than competition in the DNS.

It follows, therefore, that there will always be an automatic and
unavoidable bias in favor of the current registry operator.  The same
stability criteria, however, *also* implies that it must be easy to
jerk the registry away from a registry operator that is messing up --
the transition from one RO to another should be very smooth and
uncomplicated, from *all* perspectives -- technical, legal,
operational.

While perhaps unpleasant from your point of view, this implies that
the RO doesn't have much recourse -- it must serve at the pleasure of
ICANN, and must succeed through its good service, not its strong
legal position.  ICANN simply cannot afford to regulate through 
threats of lawsuits; we don't want to support the legal staff that 
would be required; and therefore ICANN must resolve all the legal 
issues in *its* favor up front.  While it sounds good in theory that 
all these conflicts should be resolved in court, in practice the 
result would be a giant organization with a large legal staff, and 
that would be crazy from a public policy point of view.

In particular, any legal complications concerning Intellectual
property in the TLD name or the registry database must be resolved in
advance in favor of ICANN -- otherwise the registry operator can
simply tie up matters with legal complexity. 

This is just as true for CORE as it is for IODesign or Iperdome --
there is absolutely no question that any TLD TM claims of CORE must
be relinquished to ICANN before any such encumbered CORE TLD goes in
the root..  Furthermore, the TLD names must go up for open bid --
modulo objective criteria, IODesign should be just as likely to win a
bid for ".shop" as CORE is.

When people speak of ICANN regulating registries they seem to carry 
a large context of government regulation in the background.  But 
ICANN simply doesn't have the resources of a government, and there 
is no way that we *want* it to have such resources.  That is why I 
refer to regulation through "structural" means -- you structure 
things so that the conflicts become unlikely, and nobrainers to 
resolve.  This means that the registries can't be rich power 
centers.  It also means that there should be multiple registry 
operators, so you can switch from one to another with ease.

> Mandating non-profit just means that the monopoly shunts the
> money into the salaries of its employees.

1) It doesn't necessarily mean that at all --there have been some
well-publicized cases in the US of poorly run charities, but on the
whole, non-profits do what they claim.  Furthermore, we do have
concrete examples to the contrary -- namely Nominet.  2) Most of the
work, indeed almost all of the work, would be done by the bidding
contractor, which could be for-profit, in any case. 

(BTW, Note that the phrase usually includes "cost-recovery".)

-- 
Kent Crispin                               "Do good, and you'll be
kent@songbird.com                           lonesome." -- Mark Twain