Re: [ga] Thoughts/question on the WLS

[Ken Stubbs <kstubbs@digitel.net>]

please define "ICANN blesses it"  ...?

ken stubbs


----- Original Message -----
From: "Michael Froomkin" <froomkin@law.miami.edu>
To: "John Berryhill Ph.D. J.D." <john@johnberryhill.com>; <ga@dnso.org>
Sent: Friday, July 12, 2002 11:14 AM
Subject: Re: [ga] Thoughts/question on the WLS


> 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
> U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
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