Re: [ga] RAA

[Hugh Dierker <hdierker2204@xxxxxxxxx>]

I just had the pleasure of reviewing a brand new Federal Grand Jury Indictment - all 70 pages, of course conspiracy and RICO were thrown in. What Carl describes here in the worst light gives a fellow reason to ponder.
   
  But rest assured I see no such activity occurring on the GA because we are not in charge of even helping. Oh well. We will just have to plod along.
   
  Eric

Karl Auerbach <karl@xxxxxxxxxxxx> wrote:
  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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