ICANN's RAA's DOJ matter? Was:Re: [ga] RAA

[Jeff Williams <jwkckid1@xxxxxxxxxxxxx>]

Karl and all,

  You and Danny have again brought up relevant legal concerns
that are a matter for the DOJ.  Ergo I have changed the subject
line and am copying your well stated relevant concerns to
those at DOJ whom have had some involvement with ICANN
before.

  However given "Gonzo Gate" I wouldn't expect too much
from DOJ, and unless someone is willing to actually file
a complaint regarding the RAA contracts respect to
restraint of trade i.e. Sherman Antitrust Act or
Danny's reference, Clayton Act, I am doubtful any
inspiration form DOJ will be forth coming.

Karl Auerbach 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--

Regards,
--
Jeffrey A. Williams
Spokesman for INEGroup LLA. - (Over 134k members/stakeholders strong!)
"Obedience of the law is the greatest freedom" -
   Abraham Lincoln

"Credit should go with the performance of duty and not with what is
very often the accident of glory" - Theodore Roosevelt

"If the probability be called P; the injury, L; and the burden, B;
liability depends upon whether B is less than L multiplied by
P: i.e., whether B is less than PL."
United States v. Carroll Towing  (159 F.2d 169 [2d Cir. 1947]
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