Re: [ga] Thoughts/question on the WLS

[Michael Froomkin <froomkin@law.miami.edu>]

Leaving aside the question of the economics of any lawsuit, if WLS is in fact
anti-competitive and ICANN blesses it, does ICANN acquire any potential
anti-trust liability?  (Assume that ICANN lacks immunity, for the reasons set out
in the paper Mark Lemely and I are writing on "ICANN and Anti-Trust")

PS.  I'm away from my office so there may be a very long delay before I can reply
to any followups...

"John Berryhill Ph.D. J.D." wrote:

> > 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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A. Michael Froomkin   |    Professor of Law    |   froomkin@law.tm
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