Re: [wg-c] Compromise proposal

[Paul Garrin <pg@name-space.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 new TLDs that have been operational are NOT irrelevant because
they are not seen by the entire internet.  The new operational TLDs are
not seen by the entire internet becuase they have been DENIED ACCESS
TO THE ESSENTIAL FACILITY, THE ROOT.ZONE, IN VIOLATION OF THE
ANTITRUST LAWS.  period.

>
>> 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).

>John Charles Broomfield wrote:
>
>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.
>

Paul Garrin replies:

The lower court ruled that it need not examine the issues of antitrust
law because it perceived Network Solutions to be IMMUNE from the
antitrust laws as a "federal instrumentality", a dubious and highly
political decision, not a sound legal one, in my opinion, and as
evidenced by the opinion of the DC Court of Appeals in Thomas v. NSI.

The present disposition of our case is now before the US Court
of Appeals for the Second Circuit, with a hearing scheduled for
sometime in October.  Briefs and sur-replies have been filed as
of August 11, 1999.  It is highly unlikely that NSI's immunity will
be upheld by the Second Circuit.  The briefs will be posted on
our website soon.  You may wish to have a look at the initial
brief in our appeal:  http://namespace.org/law

>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 believe that you have your issues wrong.  It is not an issue of
whether our company, or any company has a right to its proprietary
data (if you read our papers, Name.Space makes NO proprietary
claim!), but the issue of ACCESS TO AN ESSENTIAL FACILITY, in
accordance with the Sherman Act (you should read it before you
make any assumptions about its interpretation).   And, yes, if you
set up an essential facility, be it a root server, a kitchen in an airport,
a switch into a telephone network, etc. which is a bottleneck or
monopoly control point of access which would potentially exclude
competition, you would be liable to antitrust prosecution if you
denied access to the competition (again, read the Sherman Act).
This is clear, or else we would not have an MCI as we have today,
and ATT would still be "THE" telephone company, etc.  You may
also want to read the decision in Intergraph v. Intel (where the
CPU chip was deemed an essential facility by the courts) which
closely mirrors the claims for access to the essential facility
sought by Name.Space (as does MCI v. ATT).


>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).
>

I am not seeking to "regulate" ICANN or anyone else.  I am only
re-stating the requirements of operating an essential facility
in compliance with well established and well settled antitrust law.
If ICANN, or anyone with monopoly control over a essential
facility denies access, absent any specific regulatory framework
set out by the government, they are liable to prosecution under the
antitrust laws.

>> 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.

Litigation is not the desired course of action, but only a last resort.
My company supports ICANN in principle, or we would have not
participated in the accrediation process (through which Name.Space
received accreditation in the first round) and I would not be participating
in this working group.  It is my role, however to protect my business
interests, and my investors interests, to assure that the LEGITIMATE
PRACTICES of my company over the past three years in operating
a FUNCTIONING AND ACTIVE TLD registry/registrar business are not
sabotaged by legions of paid lobbyists and special interests who wish
to prevent innovation and competition in the DNS market/industry, in which
Name.Space is a foremost technological innovator and pioneer,
by spreading fear uncertainty and disinformation (FUD).

It appears as though you are unaware of our model, by your words.
I respectfully suggest that you take some time to review just what it
is that Name.Space has done over the years to come up with a
fair, reasonable, *moral* framework for new TLDS,  in business,
tecnology, and policy, before you make any snap judgements or
assessments.  Litigation is the least of our operations, contrary
to popular mis-information,  but a necessary action that we were
forced to take when denied access to the root by NSI in 1997.

See some of our achievements and contributions:

http://swhois.net  Smart WHOIS, the Universal Domain Search Engine
                              (and try it out--we fixed the continuity of whois
                               broken by NSI...swhois automatically scales to
                               recognize new com registrars as they come
online,
                               in addition to answering queries for ccTLDs, IP
                               block assignments, new TLDs, nic handles, etc.)

http://vote.global-namespace.net  (see what the PUBLIC thinks about
                                                new TLDs, and which ones
they prefer).

http://namespace.org/links    (see some of our client's websites)

http://namespace.org/policy  (see our statements and comments
                                                 to the DOC).

I believe that Name.Space has acted responsibly, fairly and morally
in its operations and business practices and policies.
We are NOT a haven for cybersquatters and speculators (and we DO
have a "famous names" policy, although unwritten specifically,
outlined on our charter), unlike many of the present registrars of
legacy domains who cash in on cybersquatters and speculators.

So please, before you go off and make snap (blind) assumptions
about my company, its policies, practices and intentions, and the
legal issues surronding them,  PLEASE DO YOUR HOMEWORK.

regards,

Paul Garrin
Founder/CEO
Name.Space, Inc.
http://name.space
http://name-space.com