Re: [ga] Thoughts/question on the WLS

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

That would be legal advice.  That's expensive.  Even when Joe Sims does it "at
cost".

Ken Stubbs wrote:

> 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
> > +1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
> >                 -->   It's hot there.   I'm elsewhere.   <--
> >
> >
> >
> >
> > --
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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
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
                -->   It's hot there.   I'm elsewhere.   <--



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