Re: [wg-c] Compromise proposal

[John Charles Broomfield <jbroom@manta.outremer.com>]

> John,
> I respectfull disagree with you wholeheartedly.
> 
> The fact is, that the DNS market is UNREGULATED, and that
> entrepeneurs such as CORE, IOdesign, Iperdome, Name.Space,
> et.al. have invested capital and built infrustructure DOES entitle
> them ALL rights to operate the TLDs that they are accepting
> registrations under.  Neither this WG, ICANN, the US Government,
> (or any government) has the authority to forclose on those
> businesses, or impose any regulatory actions on those businesses
> absent such regulatory structures.

Not too sure if CORE registrars actually operate any servers with any live
data on them, but that's beside the point. All of those you name have 100%
the right to run the computers they want, set them up with the data they
want, sell that data-entry in any which way that they esteem correct etc...
Nobody is telling anyone to shut down servers.
What you seem to fail to admit, is that those servers are currently de-facto 
completely IRRELEVANT in that they are invisible to the vast majority of the
internet. Just because they are there does NOT give them authority to shove
their existance down the throat of ANYONE. There will continue to exist
alternative roots all the time.

> The issue of access to the ROOT comes down to a matter of
> ANTITRUST, since the ROOT is an ESSENTIAL FACILITY, and
> the law states that access to an essential facility MUST BE
> GRANTED ON A NON-DISCRIMINATORY BASIS (read the
> Sherman Act!).  ICANN, should they eventually be given
> custodianship over the ROOT, will have to face that fact
> as they are subject to compliance with the antitrust laws
> (as clearly stated in the White Paper).

Could you fill us in as to the results of the court process which
was based on precisely what you allege? Unless I'm very much mistaken, you
alleged that access to the root was a right you had, and it got thrown out.
However, I'm sure you can give us better pointers on the results of it.

It would appear that the US courts disagree strongly with you about
companies having any *right* to have their own proprietary data inserted
into any particular root (and it seems logical, after all if I setup a root
server, why should I be forced to swallow ANYONES data).

I agree completely that the DNS market is unregulated. That actually works
both ways, as it's unregulated, you can't back yourself up with legal
obligations to regulate how IANA/ICANN should manage their roots. What we're
all trying to do is find a framework within which we'll all be happy to work
(or at least that "happiness" is achieved to the highest level by the highest
amount of participants if you get what I mean).

> A workable solution must be reached between all interested
> parties in order to avoid an avalance of costly and unnecessary
> litigation, which will be inevitable if this group, and ICANN fails
> to reach an acceptable solution for adding the EXISTING NEW
> TLDS to the root in an expeditious and reasonable manner.

Ah... "either you do as I say, or I'll sue you". Unfortunately, I have the
feeling that no matter *what* ICANN decides, its decision WILL be tested in
a court of law, so rather than trying to search a less litigous (sp?)
solution, it should strive for a solution that is legally acceptable (ie,
not likely to be toppled in a court of law). Generally, this would mean not
only *legally* acceptable, but functionally, morally, and above all
workably acceptable (otherwise it will topple in court anyway).

Yours, John Broomfield.