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Re: [ga] RAA

Danny Younger wrote:

As I understand it, "acting as a combination in
restraint of trade" is a reference to the U.S. Clayton
Act whose section 24 "Liability of directors and
agents of corporation"  states:


Well, you might also want to check out 15 USC Sections 1 and 2:

      Every contract, combination in the form of trust or otherwise, or
    conspiracy, in restraint of trade or commerce among the several
    States, or with foreign nations, is declared to be illegal. Every
    person who shall make any contract or engage in any combination or
    conspiracy hereby declared to be illegal shall be deemed guilty of
    a felony, and, on conviction thereof, shall be punished by fine not
    exceeding $10,000,000 if a corporation, or, if any other person,
    $350,000, or by imprisonment not exceeding three years, or by both
    said punishments, in the discretion of the court.

      Every person who shall monopolize, or attempt to monopolize, or
    combine or conspire with any other person or persons, to monopolize
    any part of the trade or commerce among the several States, or with
    foreign nations, shall be deemed guilty of a felony, and, on
    conviction thereof, shall be punished by fine not exceeding
    $10,000,000 if a corporation, or, if any other person, $350,000, or
    by imprisonment not exceeding three years, or by both said
    punishments, in the discretion of the court.

That's the Sherman Antitrust Act dating from 1890 - 117 years ago. There's also the 15 USC section 45.

Yes, it is a complex subject, full of arcane definitions and distinctions. It is a field for experts.

And not every combination in restraint of trade is illegal - but certain characteristics tend to be strong indicia that the combination is going to be found unlawful.

One of those indicators is agreements to set prices. Oops, ICANN and the companies that participate in its various supporting organizations could be running afoul of that one. And one might consider requiring the purchaser to agree to the UDRP and whois, etc to be part of the "price": the potential hole is getting deeper.

Another is allocating market share. Oops, ICANN and the companies in the SO's might be running afoul of that one as well (by virtue of their role as gatekeeper saying who may and who may not enter the DNS marketplace - e.g. the TLD policy)

And there is an entirely different set of laws, definitions, and distinctions in the many nations that are affected by ICANN. Just consider how the EU is going after Microsoft after the US DoJ gave Microsoft a trivial slap.

You might want to check out http://personal.law.miami.edu/~froomkin/articles/icann-antitrust.pdf

I use the phrase "combination in restraint of trade" as a generic description, not a legal word of art. That's why I always try to follow it with a comment that it is a question for each relevant jurisdiction to ask whether that combination is in violation of the laws of that jurisdiction. (In the case of my prior email I forgot to add that latter comment.)

I think that if you start to look more deeply that you will find that those companies that participate in the mutual-agreement-society that forms the combination called ICANN, that there may be liability on those companies.

In other words, companies like Verisign, PIR, ... etc, and all the registrars that participate in ICANN's decision making "organizations" might find themselves at the wrong end of a pointed stick with someone accusing them of being part of a conspiracy or combination to control a marketplace.

ICANN is a very closed system - it is open to incumbents registries and selected industrial interests - but it is is very closed to those who are aspiring registries, other industrial interests, and those for whose benefit ICANN is intended - the community of internet users.

Is the ICANN system any less a means of collusion to define products, set price floors, and limit competition simply because it is "on the internet"? And are those companies that participate in that system any less liable as participants in a collusion to close and control a marketplace because the products they sell are "on the internet"?

Has ICANN's system enhanced competition? No. With 9 years under its belt it has introduced only 2 gTLDs despite a plethora of applicants willing to enter the business. And at the same time ICANN has declared increased, not decreased, registry prices - a sad tale when considered against the background of dropping prices elsewhere and a lack of any inquiry into the foundation for those prices.

So, should those who participate in ICANN's SO's be afraid?

They do need to consult their own counsel and raise the question squarely.

Unfortunately, the presence of NTIA, as provider of an umbrella of governmental immunity, clouds all of this, even if NTIA seems unable, even after a decade, to demonstrate that it has any legal basis or authority at all for engaging in this area.

		--karl--



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