Re: [ga] Thoughts/question on the WLS

["John Berryhill Ph.D. J.D." <john@johnberryhill.com>]

> on the fact that it is allegedly anticompetitive. It strikes me that ICANN,
> with its limited staff resources and its necessary reliance on volunteer
> policy contributions from the stakeholder community, ought not be placed in
> the position of deciding what is or is not "anticompetitive." Surely even
> those registrars who most oppose the WLS appreciate the danger in creating
> an ICANN that becomes a market regulator.

You are confusing ICANN's charter with a mandate to enforce antitrust law.
Nobody asked ICANN to be a market regulator, or to see that antitrust law is
not violated.  However, ICANN is required to do what it does (a) by
consensus, and (b) in such a manner as to foster and promote some concept of
"competition".  Because you are a lawyer, you translate that into some legal
standard.  But that is not necessarily how the MoU is to be interpreted.  The
MoU requirement to favor competition is simply that, and did not import
whatever extrinsic constructs one might attach to the term.

Mr. Neumann's consensus of 4, along with the ccTLD folks who generally won't
pee in anyone's pool as long as they are treated the same way, is hardly a
thundering consensus that the proposed service comports with that which ICANN
is indeed chartered to do, but for which precise legal definitions are not
incorporated into the MoU.

>When I say ICANN should remain neutral, I mean just that. It
> should be careful to ensure that Verisign cannot argue later that ICANN
> either required or blessed the WLS.

It is clear that you anticipate exactly what one line of defense would be, no
matter how "carefully" ICANN were to permit the service.  Expect a lot of
PGMedia citations in the brief.

I doubt that there is enough money involved in the present circumstances to
support litigation, even after you propose that we kill the revenue stream
and then have them litigate.  If you look at the numbers posted here earlier
by Dotster, it is clear that WLS will generate a fat lot of revenue in one
place, whereas a much smaller amount of revenue is more thinly distributed
now.  Interesting how "helping consumers" will generate an aggregate higher
income from the same folk.



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