Subject: GA-DIGEST V1 #1326
From: [email-masked] (GA-DIGEST)
To: [email-masked]

GA-DIGEST            Friday, July 12 2002            Volume 01 : Number 1326

----------------------------------------------------------------------

Date: Thu, 11 Jul 2002 09:06:49 -0700 (PDT)
From: George Kirikos <[email-masked]>
Subject: Re: [ga] Thoughts/question on the WLS

Hi Bret,

- --- Bret Fausett <[email-masked]> wrote:
> I'm particularly concerned that many of the arguments against the WLS
> focus
> on the fact that it is allegedly anticompetitive. It strikes me that
> ICANN,
> with its limited staff resources and its necessary reliance on
> volunteer
> policy contributions from the stakeholder community, ought not be
> placed in
> the position of deciding what is or is not "anticompetitive." 

Excuse me, but part of ICANN's mission is to promote competition.
Stuart Lynn testified before the US Government that ICANN's major
success has been in the promotion of competition. It is wholly within
ICANN's scope to consider the anticompetitive aspects of proposals, and
their impacts on the marketplace and its participants. Since you're a
lawyer, read:

http://www.icann.org/general/icann-mou-25nov98.htm

and in particular read:

Section C:

"This Agreement promotes the management of the DNS in a manner that
will permit market mechanisms to support competition and consumer
choice in the technical management of the DNS. This competition will
lower costs, promote innovation, and enhance user choice and
satisfaction." (Obviously WLS fails this)

"This Agreement is intended to result in the design, development, and
testing of a private coordinating process that is flexible and able to
move rapidly enough to meet the changing needs of the Internet and of
Internet users. This Agreement is intended to foster the development of
a private sector management system that, as far as possible, reflects a
system of bottom-up management."

With regards to the second paragraph, you're proposing a top-down
system, which is diametrically opposite to the bottom-up consensus
approach required of ICANN. Furthermore:

"Neither Party, either in the DNS Project or in any act related to the
DNS Project, shall act unjustifiably or arbitrarily to injure
particular persons or entities or particular categories of persons or
entities."

ICANN needs to be able to justify things, not put its head in the sand
as you suggest.

> That
> would leave the anti-competition issue to a more appropriate forum --
> a
> court -- where experts, economists and others could weigh in on the
> effects

SnapNames couldn't have written what you said any better. ;) FYI, one
does not need to be an expert in Einstein's Theory of Gravity or have a
Ph.D. in physics to know that jumping off the top of the Empire State
Building will lead to your death when you hit the ground. Similarly, it
is obvious that WLS is anti-competitive. Do you suggest Dotster's Clint
Page or eNom's Paul Stahura were lying when they said that if WLS goes
forward, their expired names services will be out of business? Surely
one expects better from you than "let Verisign do whatever they want,
and force others to sue them". Good for the lawyers, perhaps, but not
policy choices of leaders. ICANN exists to make the tough decisions. If
they can't handle the job, give it to someone who will.

Sincerely,

George Kirikos
http://www.kirikos.com/

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Date: Thu, 11 Jul 2002 12:10:53 -0400
From: "L. Gallegos" <[email-masked]>
Subject: RE: [ga] WLS: Dotster posts the definitive arguments against it, and more

On 11 Jul 2002, at 8:21, George Kirikos wrote:

> Hello,
> 
> --- "L. Gallegos" <[email-masked]> wrote:
> > I am totally against the WLS, but could you explain how it effects 
> > security and stabiltiy of the DNS?  We're talking about .COM, not the
> > entire internet.
> 
> I'm glad you brought that up, about .COM possibly not being the entire
> internet. I draw your attention to the statements of Verisign at:
> 
> http://www.neustar.com/pressroom/files/announcements/7601-washington_busine
> ss_jrl.pdf
> 
> Verisign stated clearly that "I don't think there will *EVER* be
> another .com" (emphasis added) It's that special place in the DNS that
> requires that ICANN pay particular attention to the monopolist Verisign,
> since by their own admission they are not just another registry. 

Still, please tell me how this affects the security and stability of the 
internet?

While it could be difficult if .COM fell off the face of the earth, it would 
not stop the internet nor would it stop the DNS.  People would simply 
have to (1) temporarily publish their IP addresses for websites, (2) 
temporarily use their ISPs for email addressing and inform their 
customer mailing lists, (3) obtain a domain in another TLD, (4) 
nameservres using .COM domains would have to change to other 
domains.  A mess for a short time, sure.  Irrecoverable, no.

The interent would go right on working.

Now, the situation begs this question.  Should there be tons of TLDs to 
offset the devastating effect the failure of this registry could have on 
millions of people using .COM?  You betcha.  Second question.  Would 
the WLS issue be such a blistering sore if there were at least dozens of 
TLDs where people could *choose* to go to any of sevreral registries for 
their commercial domains?  Heck, the ones that had no such wait list 
might just become  popular over night.  Competition would be alive and 
well, this time among registries as opposed to just registrars for the 
registries.  Of course it would have to be honest appearing registries 
that were open to all on a FCFS basis.  That's not likely to happen 
under the ICANN regime.

But George, I still don't see how any of this affects the security of the 
internet and DNS.

Leah

> 
> Sincerely,
> 
> George Kirikos
> http://www.kirikos.com/
> 
> __________________________________________________
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> 

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Date: Thu, 11 Jul 2002 12:40:25 -0700
From: Jeff Williams <[email-masked]>
Subject: Re: [ga] Thoughts/question on the WLS

George and all assembly members,

  Very good points here George to Bret's comments/remarks.
Well done!

  As you know George, as do many others, the ICANN BoD
and staff from almost the beginning have tried to deny their
responsibilities
under the MoU and the White Paper.  So one should not be too
surprised that the ICANN BoD and staff, needing funding, are
willing to fudge wherever they can.  This makes WLS attractive
in many respects, some obvious, some not so obvious.

George Kirikos wrote:

> Hi Bret,
>
> --- Bret Fausett <[email-masked]> wrote:
> > I'm particularly concerned that many of the arguments against the WLS
> > focus
> > on the fact that it is allegedly anticompetitive. It strikes me that
> > ICANN,
> > with its limited staff resources and its necessary reliance on
> > volunteer
> > policy contributions from the stakeholder community, ought not be
> > placed in
> > the position of deciding what is or is not "anticompetitive."
>
> Excuse me, but part of ICANN's mission is to promote competition.
> Stuart Lynn testified before the US Government that ICANN's major
> success has been in the promotion of competition. It is wholly within
> ICANN's scope to consider the anticompetitive aspects of proposals, and
> their impacts on the marketplace and its participants. Since you're a
> lawyer, read:
>
> http://www.icann.org/general/icann-mou-25nov98.htm
>
> and in particular read:
>
> Section C:
>
> "This Agreement promotes the management of the DNS in a manner that
> will permit market mechanisms to support competition and consumer
> choice in the technical management of the DNS. This competition will
> lower costs, promote innovation, and enhance user choice and
> satisfaction." (Obviously WLS fails this)
>
> "This Agreement is intended to result in the design, development, and
> testing of a private coordinating process that is flexible and able to
> move rapidly enough to meet the changing needs of the Internet and of
> Internet users. This Agreement is intended to foster the development of
> a private sector management system that, as far as possible, reflects a
> system of bottom-up management."
>
> With regards to the second paragraph, you're proposing a top-down
> system, which is diametrically opposite to the bottom-up consensus
> approach required of ICANN. Furthermore:
>
> "Neither Party, either in the DNS Project or in any act related to the
> DNS Project, shall act unjustifiably or arbitrarily to injure
> particular persons or entities or particular categories of persons or
> entities."
>
> ICANN needs to be able to justify things, not put its head in the sand
> as you suggest.
>
> > That
> > would leave the anti-competition issue to a more appropriate forum --
> > a
> > court -- where experts, economists and others could weigh in on the
> > effects
>
> SnapNames couldn't have written what you said any better. ;) FYI, one
> does not need to be an expert in Einstein's Theory of Gravity or have a
> Ph.D. in physics to know that jumping off the top of the Empire State
> Building will lead to your death when you hit the ground. Similarly, it
> is obvious that WLS is anti-competitive. Do you suggest Dotster's Clint
> Page or eNom's Paul Stahura were lying when they said that if WLS goes
> forward, their expired names services will be out of business? Surely
> one expects better from you than "let Verisign do whatever they want,
> and force others to sue them". Good for the lawyers, perhaps, but not
> policy choices of leaders. ICANN exists to make the tough decisions. If
> they can't handle the job, give it to someone who will.
>
> Sincerely,
>
> George Kirikos
> http://www.kirikos.com/
>
> __________________________________________________
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> Sign up for SBC Yahoo! Dial - First Month Free
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Regards,
- --
Jeffrey A. Williams
Spokesman for INEGroup - (Over 124k members/stakeholders strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail [email-masked]
Contact Number:  972-244-3801 or 214-244-4827
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208

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------------------------------

Date: Thu, 11 Jul 2002 11:25:36 -0700
From: Gary Osbourne <[email-masked]>
Subject: Re: [ga] Thoughts/question on the WLS

At 08:37 AM 11/07/02 -0700, Bret Fausett wrote:

>It strikes me that ICANN [...] ought not be placed in
>the position of deciding what is or is not
>"anticompetitive." Surely even those registrars who
>most oppose the WLS appreciate the danger in creating
>an ICANN that becomes a market regulator.

Isn't one of the reasons for ICANN's creation, and
continued existence, to increase/enhance competition?
And isn't another to decrease VeriSign's monopoly?
I cannot see how ICANN can do either of those without
some sort of market regulation. I don't see what is
so magical about the WLS to make it any different.

ICANN decides who gets .org, who gets new gTLDs, how
many of them there are, what kind they are, and how
often and when they are introduced. These are all
forms of market regulation. Indeed, for an
organization that allegedly doesn't have the
resources to do market regulation, they somehow
managed to micro-regulate the new TLD process.
And they somehow managed to keep that process out
of the courts, at least in terms of anti-trust
or anti-competition.

>(And we should ensure that the registrar
>accreditation contracts don't require the
>registrars to waive any private law remedies
>they may have for a registry's anticompetitive
>acts.)

Interesting how this conflicts with the situation
where registrant contracts require that they
waive any private law remedies for any registrar
or registry acts. So if someone uses the WLS, or
an existing service, to take my expired name, even
if the expiration was entirely the fault of the
registrar or registry, I have no recourse.

It seems to me that this is where anti-trust concerns
come in, not least when the registrar/registry stands
to gain more from having my name go to someone else
than stay with me. End users are left to the wiles of
a registry, and some registrars, with far less than
stellar reputations, in what amounts to a protection
racket. Whether ICANN washes its hands of this or not,
the silver will still cross its palm. -g

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------------------------------

Date: Thu, 11 Jul 2002 14:47:48 -0400
From: Sotiris Sotiropoulos <[email-masked]>
Subject: Re: [ga] WLS: Dotster posts the definitive arguments against it, and more

L. Gallegos wrote:

>On 11 Jul 2002, at 8:21, George Kirikos wrote:
>
>  
>
>>Hello,
>>
>>--- "L. Gallegos" <[email-masked]> wrote:
>>    
>>
>>>I am totally against the WLS, but could you explain how it effects 
>>>security and stabiltiy of the DNS?  We're talking about .COM, not the
>>>entire internet.
>>>      
>>>
>>I'm glad you brought that up, about .COM possibly not being the entire
>>internet. I draw your attention to the statements of Verisign at:
>>
>>http://www.neustar.com/pressroom/files/announcements/7601-washington_busine
>>ss_jrl.pdf
>>
>>Verisign stated clearly that "I don't think there will *EVER* be
>>another .com" (emphasis added) It's that special place in the DNS that
>>requires that ICANN pay particular attention to the monopolist Verisign,
>>since by their own admission they are not just another registry. 
>>    
>>
>
>Still, please tell me how this affects the security and stability of the 
>internet?
>
>While it could be difficult if .COM fell off the face of the earth, it would 
>not stop the internet nor would it stop the DNS.  People would simply 
>have to (1) temporarily publish their IP addresses for websites, (2) 
>temporarily use their ISPs for email addressing and inform their 
>customer mailing lists, (3) obtain a domain in another TLD, (4) 
>nameservres using .COM domains would have to change to other 
>domains.  A mess for a short time, sure.  Irrecoverable, no.
>
>The interent would go right on working.
>
>Now, the situation begs this question.  Should there be tons of TLDs to 
>offset the devastating effect the failure of this registry could have on 
>millions of people using .COM?  You betcha.  Second question.  Would 
>the WLS issue be such a blistering sore if there were at least dozens of 
>TLDs where people could *choose* to go to any of sevreral registries for 
>their commercial domains?  Heck, the ones that had no such wait list 
>might just become  popular over night.  Competition would be alive and 
>well, this time among registries as opposed to just registrars for the 
>registries.  Of course it would have to be honest appearing registries 
>that were open to all on a FCFS basis.  That's not likely to happen 
>under the ICANN regime.
>
>But George, I still don't see how any of this affects the security of the 
>internet and DNS.
>

It's called OPPRESSION Leah, otherwise known as ramming 
unpopular/unsavoury things down people's throats without care for the 
LONG TERM effects.  Sooner or later, repressive activities lead to 
incalculably devastating reprisals, otherwise know as uprisings or 
revolutions.  The First Estate of the ancien regime in 18th century 
France didn't understand how their abusive rulership could affect their 
stability and security either. That is, until the guillotines were set 
up in the marketplaces of Paris.  Stop sounding like Marie Antoinette, Leah.

Sincerely,

Sotiris Sotiropoulos

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------------------------------

Date: Thu, 11 Jul 2002 16:20:37 -0400
From: "John Berryhill Ph.D. J.D." <[email-masked]>
Subject: Re: [ga] Thoughts/question on the WLS

> on the fact that it is allegedly anticompetitive. It strikes me that ICANN,
> with its limited staff resources and its necessary reliance on volunteer
> policy contributions from the stakeholder community, ought not be placed in
> the position of deciding what is or is not "anticompetitive." Surely even
> those registrars who most oppose the WLS appreciate the danger in creating
> an ICANN that becomes a market regulator.

You are confusing ICANN's charter with a mandate to enforce antitrust law.
Nobody asked ICANN to be a market regulator, or to see that antitrust law is
not violated.  However, ICANN is required to do what it does (a) by
consensus, and (b) in such a manner as to foster and promote some concept of
"competition".  Because you are a lawyer, you translate that into some legal
standard.  But that is not necessarily how the MoU is to be interpreted.  The
MoU requirement to favor competition is simply that, and did not import
whatever extrinsic constructs one might attach to the term.

Mr. Neumann's consensus of 4, along with the ccTLD folks who generally won't
pee in anyone's pool as long as they are treated the same way, is hardly a
thundering consensus that the proposed service comports with that which ICANN
is indeed chartered to do, but for which precise legal definitions are not
incorporated into the MoU.

>When I say ICANN should remain neutral, I mean just that. It
> should be careful to ensure that Verisign cannot argue later that ICANN
> either required or blessed the WLS.

It is clear that you anticipate exactly what one line of defense would be, no
matter how "carefully" ICANN were to permit the service.  Expect a lot of
PGMedia citations in the brief.

I doubt that there is enough money involved in the present circumstances to
support litigation, even after you propose that we kill the revenue stream
and then have them litigate.  If you look at the numbers posted here earlier
by Dotster, it is clear that WLS will generate a fat lot of revenue in one
place, whereas a much smaller amount of revenue is more thinly distributed
now.  Interesting how "helping consumers" will generate an aggregate higher
income from the same folk.

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------------------------------

Date: Thu, 11 Jul 2002 14:08:34 -0700
From: Bret Fausett <[email-masked]>
Subject: Re: [ga] Thoughts/question on the WLS

John Berryhill Ph.D. J.D. wrote:
> However, ICANN is required to do what it does...in such a manner as to foster
> and promote some concept of "competition".  Because you are a lawyer, you
> translate that into some legal standard.

Not at all. What I'm suggesting is that the best way to foster competition
is to get out of the way. Make sure you preserve the private law remedies of
private parties and then let them do what they will.

     -- Bret

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Date: Thu, 11 Jul 2002 15:01:27 -0700
From: William X Walsh <[email-masked]>
Subject: Re: [ga] Thoughts/question on the WLS

One of the things ICANN was charged with by the USG was the
introduction and protection of competitiveness in the domain name
market.

It is clearly something that ICANN MUST address when reviewing these
types of policies.

Thursday, July 11, 2002, 8:37:44 AM, Bret Fausett wrote:

> I've been following the debate on the proposed waiting list service for some
> time, and while I initially thought it was a good idea, I've come to see
> that both side have compelling arguments as to why the service should/should
> not be allowed. Aside from the merits of the service itself, this debate is
> particularly important, at least in my mind, because it stands to set some
> precedent for how future issues of registry services are resolved. With that
> point in mind, it seems to me that it would be better for ICANN to look for
> some bright-line approach so that resolution of similar issues in the future
> doesn't require the same machinations required to reach this point in the
> WLS debate.  

> I'm particularly concerned that many of the arguments against the WLS focus
> on the fact that it is allegedly anticompetitive. It strikes me that ICANN,
> with its limited staff resources and its necessary reliance on volunteer
> policy contributions from the stakeholder community, ought not be placed in
> the position of deciding what is or is not "anticompetitive." Surely even
> those registrars who most oppose the WLS appreciate the danger in creating
> an ICANN that becomes a market regulator.

> Here's where I'm going with all this. If the WLS is anticompetitive, why is
> it not preferable to have ICANN take no position on the WLS? Verisign is
> free to implement the WLS, but if the service is anticompetitive, Verisign
> runs the substantial risk that the registrars will file a lawsuit. That
> would leave the anti-competition issue to a more appropriate forum -- a
> court -- where experts, economists and others could weigh in on the effects
> of the service. When I say ICANN should remain neutral, I mean just that. It
> should be careful to ensure that Verisign cannot argue later that ICANN
> either required or blessed the WLS. (And we should ensure that the registrar
> accreditation contracts don't require the registrars to waive any private
> law remedies they may have for a registry's anticompetitive acts.)

> This strikes me as a better approach for ICANN as a whole, but I wanted to
> float it here so people could help me think it through. I don't have time
> today to do a lot of follows up, but I'll look forward to reading any
> responses this evening.

>     -- Bret

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William X Walsh <[email-masked]>
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CARP will kill Webcasting!
http://www.saveinternetradio.org/

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Date: Thu, 11 Jul 2002 15:03:34 -0700
From: William X Walsh <[email-masked]>
Subject: Re: [ga] WLS: Dotster posts the definitive arguments against it, and more

Thursday, July 11, 2002, 9:10:53 AM, L. Gallegos wrote:
> While it could be difficult if .COM fell off the face of the earth, it would
> not stop the internet nor would it stop the DNS.  People would simply 
> have to (1) temporarily publish their IP addresses for websites, (2) 
> temporarily use their ISPs for email addressing and inform their 
> customer mailing lists, (3) obtain a domain in another TLD, (4) 
> nameservres using .COM domains would have to change to other 
> domains.  A mess for a short time, sure.  Irrecoverable, no.

> The interent would go right on working.

That is very naive, Leah.

While it may suit the alternative roots to believe and/or promote
that, the fact is that the impact of .com on the internet at large is
HUGE, and any discounting of it like your statement above is just not
based in reality.

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William X Walsh <[email-masked]>
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CARP will kill Webcasting!
http://www.saveinternetradio.org/

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Date: Fri, 12 Jul 2002 00:20:32 +0200
From: Thomas Roessler <[email-masked]>
Subject: Re: [ga] Thoughts/question on the WLS

On 2002-07-11 14:08:34 -0700, Bret Fausett wrote:

>Not at all. What I'm suggesting is that the best way to foster 
>competition is to get out of the way. Make sure you preserve the 
>private law remedies of private parties and then let them do what 
>they will.

I'm not sure ICANN should go out of Verisign registry's way here.   
What the registry is suggesting is another monopoly service.  It's  
modeled after the existing one, so there is some basic competition  
among registrars.  I even agree with you that the side effects on  
existing deleted domain dealers may best be dealt with in court.

However, introducing WLS would have side-effects on the competition  
between _all_ registrars: Hoarding of expired domain names, and, as  
Dotster has argued, transfers of domain names.  These side-effects  
would clearly Verisign's own registrar division.  To take up some  
Lessig-speak, what we are seeing is either an attempt of Verisign 
registry to establish architecture which would benefit the
registrar, or a really strange accident.  In both cases, the outcome 
is the same.

As far as the hoarding aspect is concerned, it may have been the  
DNSO's (and, in particular, the registrar constituency's!) job to  
actually work on a uniform deletions policy.  This job should not be 
hard, and it may even be possible to still do it in time.

The transfers aspect is really just a placeholder for a more general 
issue, namely, enforcement of policies when Verisign registrar  
chooses not to abide by them.  Bad enough, it's nothing the DNSO can 
do something about in the short term.

Taking all this together, I do believe that ICANN would act  
irresponsibly by permitting Verisign to introduce WLS without  
addressing the proposal's competitive side-effects first.  ICANN's  
responsibility, as I understand it, is precisely to prevent  
anti-competitive architecture from happening - if necessary, by  
establishing and enforcing the necessary policy safeguards.

Given the signals from Bucharest (which - I think - seem to point  
into the direction of the board actually permitting WLS), the DNSO  
should most likely turn to the policy safeguard(s?) necessary to  
mitigate WLS' ill side-effects.  As I said before, I do believe that 
the policies are fairly easy to establish, assuming that we don't  
see some players blocking the process for the sake of their  
self-interest.

The enforcement problem is most likely the board's, the courts', and 
the governments' to handle.  
- -- 
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Date: Thu, 11 Jul 2002 18:51:26 -0400
From: "L. Gallegos" <[email-masked]>
Subject: Re: [ga] WLS: Dotster posts the definitive arguments against it, and more

On 11 Jul 2002, at 14:47, Sotiris Sotiropoulos wrote:

> 
> It's called OPPRESSION Leah, otherwise known as ramming 
> unpopular/unsavoury things down people's throats without care for the LONG
> TERM effects.  Sooner or later, repressive activities lead to incalculably
> devastating reprisals, otherwise know as uprisings or revolutions.  The
> First Estate of the ancien regime in 18th century France didn't understand
> how their abusive rulership could affect their stability and security
> either. That is, until the guillotines were set up in the marketplaces of
> Paris.  Stop sounding like Marie Antoinette, Leah.
> 

I don't know where you got that, Sotiris.  I did not say anything similar 
to "Let them eat cake."  What I said was I don't see how it effects the 
stability of the internet, which would continue with or without .com.  
Would be there be an upheaval, sure.  Would the net become unstable, 
no.  

Again, I am 100% against the WLS because that would hurt existing 
businesses and consumers.  But opression?  Isn't that normally used to 
describe governments and leaders?  Verisign is neither, but controls the 
largest TLD.  Therefore, it is in a position to rape the consumer, given its 
present popularity.  How long would that popularity last under what you 
call this "oppression"?.  You are correct about revolution, but not in the 
bloody sense.  The consumer, registrars and public would be up in arms 
in a figurative sense and speak with their dollars.  

Verisign is trying to go for the money to save themselves from a stock 
price fall and declining revnues due to the boom in domain names 
ending, the loss of renewals due to transfers, etc.  Consermers have left 
their high prices and poor service.  Their desparation may just hurt them 
more than finding a way to entice consumers back into their fold.  
Registrants have left them in huge numbers for registrars that treat them 
better and provide more reasonable pricing.  Verisign has used dirty 
tricks to get them back.  Are consumers so stupid as to continue to 
purchase a product from a company that is out to gauge them at every 
turn and use deceptive practices to boot?  Just how long do you think it 
can last?  

That being said, please tell me how WLS will effect the stability and 
security of the internet?  That is a technical issue.  How is the registry 
operation of a service going to effect it?  WLS is not going to technically 
effect the stability of the internet, the DNS or the security of the system.
 It's a business issue.

Leah

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Date: Thu, 11 Jul 2002 18:01:28 -0500
From: Don Brown <[email-masked]>
Subject: Re: [ga] Thoughts/question on the WLS

That is usually true. However, it is not totally true in this case
because there is a monopoly involved and WLS will be a monopoly
service.

One of the reasons for ICANN's existence was to break-up the monopoly
and foster competition. I think that's also why VeriSign's contract
requires ICANN's permission/approval for it to offer any other
service. ICANN seems to already have a watch dog/regulatory role.

>From a slightly different perspective, a party can currently obtain
service from several different sources (SnapNames, included) and there
is competition between them. If ICANN approves WLS, then there will be
only one source. So, in that scope your statement is true, since ICANN
would be getting in the way of free enterprise and not fostering
competition.

Within the narrow confines of the foregoing, ICANN's best course of
action is quite clear.

Thursday, July 11, 2002, 4:08:34 PM, Bret Fausett <[email-masked]> wrote:
BF> John Berryhill Ph.D. J.D. wrote:
>> However, ICANN is required to do what it does...in such a manner as to foster
>> and promote some concept of "competition".  Because you are a lawyer, you
>> translate that into some legal standard.

BF> Not at all. What I'm suggesting is that the best way to foster competition
BF> is to get out of the way. Make sure you preserve the private law remedies of
BF> private parties and then let them do what they will.

BF>      -- Bret

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Date: Thu, 11 Jul 2002 18:18:15 -0700
From: Jeff Williams <[email-masked]>
Subject: Re: [ga] Thoughts/question on the WLS

John and all assembly members,

John Berryhill Ph.D. J.D. wrote:

> > on the fact that it is allegedly anticompetitive. It strikes me that ICANN,
> > with its limited staff resources and its necessary reliance on volunteer
> > policy contributions from the stakeholder community, ought not be placed in
> > the position of deciding what is or is not "anticompetitive." Surely even
> > those registrars who most oppose the WLS appreciate the danger in creating
> > an ICANN that becomes a market regulator.
>
> You are confusing ICANN's charter with a mandate to enforce antitrust law.
> Nobody asked ICANN to be a market regulator, or to see that antitrust law is
> not violated.

  This is a good point.  I would ask some questions long these lines. Some
of which have been ask a number of times already without and answer.
1.) Shouldn't a responsible corporate structure, such as ICANN is supposed
to be, see to it that it as a corporate entity not violate antitrust law?
2.) Is or is not, ICANN a public service corporation managing a public
resource(s) supposed to serve the users of that/those resources responsible
for any potential antitrust concerns in it's potential for determining policy's)?

>  However, ICANN is required to do what it does (a) by
> consensus, and (b) in such a manner as to foster and promote some concept of
> "competition".

  Also a good point, and these have been hashed over a number of times
now as well.  But again, questions remain unanswered still along these
lines also.  For instance: 1.) Is consensus just declared and not verified
by some voting type of mechanism?  2.) Whom are those that determine
what and when a consensus is reached?  3.) What are the basic
precepts of creating competition in Registry/registrar services?
(There are of course many more questions in this area)

>  Because you are a lawyer, you translate that into some legal
> standard.  But that is not necessarily how the MoU is to be interpreted.  The
> MoU requirement to favor competition is simply that, and did not import
> whatever extrinsic constructs one might attach to the term.

  Yes this also is a good point.  Also no restrictions are extrinsic
as constructs as well...

>
>
> Mr. Neumann's consensus of 4, along with the ccTLD folks who generally won't
> pee in anyone's pool as long as they are treated the same way, is hardly a
> thundering consensus that the proposed service comports with that which ICANN
> is indeed chartered to do, but for which precise legal definitions are not
> incorporated into the MoU.

  Exactly right.

>
>
> >When I say ICANN should remain neutral, I mean just that. It
> > should be careful to ensure that Verisign cannot argue later that ICANN
> > either required or blessed the WLS.
>
> It is clear that you anticipate exactly what one line of defense would be, no
> matter how "carefully" ICANN were to permit the service.  Expect a lot of
> PGMedia citations in the brief.
>
> I doubt that there is enough money involved in the present circumstances to
> support litigation, even after you propose that we kill the revenue stream
> and then have them litigate.  If you look at the numbers posted here earlier
> by Dotster, it is clear that WLS will generate a fat lot of revenue in one
> place, whereas a much smaller amount of revenue is more thinly distributed
> now.  Interesting how "helping consumers" will generate an aggregate higher
> income from the same folk.

  Yes isn't it indeed interesting!

>
>
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Regards,
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CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
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Date: Thu, 11 Jul 2002 18:51:45 -0500
From: Don Brown <[email-masked]>
Subject: [ga] Why so long

Why does it take so long for a post to be distributed?

I posted almost an hour ago and it has yet to show up.

Are we in moderator/censorship mode or is there some other logical
reason for such a delay?

Thanks,

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[email-masked]         http://www.inetconcepts.net
PGP Key ID: 04C99A55              (972) 788-2364  Fax: (972) 788-5049
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Date: Thu, 11 Jul 2002 16:53:11 -0700
From: Bret Fausett <[email-masked]>
Subject: Re: [ga] Thoughts/question on the WLS

Thomas Roessler wrote:
> I'm not sure ICANN should go out of Verisign registry's way here.
> What the registry is suggesting is another monopoly service.  It's
> modeled after the existing one, so there is some basic competition
> among registrars.

John Berryhill wrote:
> Expect a lot of PGMedia citations in the brief.

A couple of things to keep in mind here. Asking ICANN to get out of the way
isn't tantamount to supporting monopolistic practices. If the registrars
have a private remedy for Verisign's allegedly anticompetitive conduct, we'd
simply be taking that private dispute and placing it outside the scope of
what ICANN does. The landscape has changed considerably since 1998. In 1998,
when Network Solutions was under direct contract with the United States for
operation of the CNO registries, it enjoyed federal antitrust immunity from
most private actions. ICANN intervention in competition was required because
there was nowhere else to turn. Effective May, 2001, with the renegotiation
of the CNO registry agreements (which removed the government as a party to
the contracts), that immunity ended.*

This WLS seems an appropriate problem to consider while we're also
discussing ICANN Reform. Where are we going to draw the line around what
ICANN can do? If we're going to extend the scope of ICANN's responsibilities
to stirring the pot of competition, what else might that include?

George Kirikos wrote:
> ICANN exists to make the tough decisions. If they can't handle the job, give
> it to someone who will.

I think that's exactly what I was suggesting: give the job to a Court
because deciding what is "anticompetitive" is outside ICANN's core
competency.

      -- Bret

- ---------
* Also See Paragraph 25:
http://www.ntia.doc.gov/ntiahome/domainname/agreements/amend24_52501.htm
And the DOC Press Release:
http://osecnt13.osec.doc.gov/public.nsf/docs/icann-verisign-0518

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End of GA-DIGEST V1 #1326
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