Re: [wg-c] Compromise proposal

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

Hi Paul,

> 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.

Yes, you keep saying that. You also keep trying to uphold that statement in
court. Courts, which so far have thrown that argument out three times. You
can continue to state that but THIS PARROT IS DEAD! period.

As you keep at it however, as soon as you get a positive resolution in your
favour, you can come back on that one. The fact that it is taking you so
much time (you've been at it for nearly 3 years now legally I think?), would
seem to indicate that it is far from being what you say. YMMV.

Btw, thanks for giving us the update on the legal case anyway.

> 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 won't argue with you on legal matters. IANAL. Personally your line of
thought doesn't seem to stand up to close scrutiny though...

> >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.

IANAL
Dunno, but I think you'll have a hard time at demonstrating that the
IANA/ICANN root server is both an essential facility and not under USG
authority. Either of those fail, and it would seem you have problems.
You would seem to be implying that it is best that the agreements are
condonde by the USG then? In any case, it would seem that NSF/DoC is
recognizing ICANN, and will transfer authority, so your case would fail
there straight out.

> 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).

Oh, I know that you want to happily run/setup/sell TLDs or SLDs in those
TLDs. I also am not at all surprised that you want to sue your way into the
roots. What would surprise me would be if you managed it. :-)

> 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.

I can see a lot of companies who are envious of NSI. NSI hit gold in that it
was in the right place and won a government contract at the right time. The
returns have been enormous. However, the argument of "as NSI has '.com' I
want '.whatever'" although it sounds simple and straight forward, doesn't
hold water.
I'm sure you do great business and earn tonnes of money elsewhere. Of
course, the small cost of litigation can be seen as buying a lottery ticket.
It won't win...but...hey! Imagine if it did!!! (dollar signs roll). Go
ahead, have fun.

> 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.

Yes, I know. You want open access to the ICANN/IANA roots. If you can't
dicatate what you want in the ICANN/IANA roots through negotiation, then
you'll sue to try and get it done.
That basically resumes your position.
Personally I don't think much of that position. Prove me wrong.

Yours, John Broomfield.