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Re: [ga-roots] Microsoft case shows how ICANN breaches USA antitrust laws
Hello Len,
Don't know much about US Laws or the legal systems do you?
Friday, June 29, 2001, 11:43:51 PM, Len Lindon wrote:
> Thursday's Microsoft ruling by the US Court of Appeals shows exactly
> how ICANN, a California corporation, breaches USA longstanding
> USA antitrust laws through its exclusionary contracts and activies.
> Take this conclusion at page 46:
>> By ensuring that the majorityııof all IAP subscribers
>> are offered IE either as the default browser or as the only
>> browser, Microsoftıs deals with the IAPs clearly have a
>> significant effect in preserving its monopoly;they help keep
>> usage of Navigator below the critical level necessary for
>> Navigator or any other rival to pose a real threat to Micro-
>> soft ıs monopoly. (Microsoft sought to divert enough browser
>> usage from Navigator to neutralize it as a platform.ıı)
> Now substitute "ICANN" for "Microsoft" and paraphrase as follows:
> By ensuring that the majorityııof all Internet Users
> are offered ICANN root either as the default root/nameserver
> or as the only root/nameserver, ICANNıs deals with Internet
> Address Providers clearly have a significant effect in
> preserving its monopoly; they help keep usage of non-ICANN
> roots and tlds below the critical level necessary for
> them or any other rival to pose a real threat to ICANNıs monopoly.
> (ICANN sought-- and seeks-- to divert enough address usage from
> non-ICANN roots/tlds to neutralise them as service providers).
> The Court of Appeals concluded by ruling (at page 47) that:
> > Microsoftıs exclusive contracts with IAPs are exclusionary
>> devices,in violation of §2 of the Sherman Act.
> In August the Supreme Court of Uruguay at Montevideo will be
> asked to conclude that:
> "ICANN's exclusive contracts with Internet Address Providers
> are exclusionary devices, in violation of the USA Sherman Act."
> In early September antitrust proceedings will be commenced
> in California at the nearest relevant court to Marina del Rey
> asking the court to confirm that:
> "ICANN's exclusive contracts with Internet Address Providers
> are exclusionary devices, in violation of the USA Sherman Act."
> A copy of this email will be produced in both legal proceedings
> to show ICANN officials and boosters had notice of its posting
> on ga-roots@dnso.org
> Len Lindon, Barrister
> Interim Trustee for Dot Humanrights Interim Trust
> ___________________________________________________________________
> The extracts below are from the pdf file available at line three of
> news-report at http://www.wired.com/news/antitrust/0,1551,44902-2,00.html
>>
>> United States Court of Appeals
>> FOR THE DISTRICT OF COLUMBIA CIRCUIT
>> Argued February 26 and 27,2001
>> Decided June 28,2001
>> No.00 5212
>> UNITED STATES OF AMERICA,
>> APPELLEE
>> v.
>> MICROSOFT CORPORATION,
>> APPELLANT
>> Consolidated with
>> 00 5213
>> Appeals from the United States District Court
>> for the District of Columbia
>> page 24
>> Even if we were to require direct proof, moreover, Micro-
>> softıs behavior may well be sufficient to show the existence of
>> monopoly power.
>> page 25
>> B.Anticompetitive Conduct
>> As discussed above,having a monopoly does not by itself
>> violate §2.A firm violates §2 only when it acquires or
>> maintains,or attempts to acquire or maintain,a monopoly by
>> engaging in exclusionary conduct as distinguished from
>> growth or development as a consequence of a superior prod-
>> uct, business acumen,or historic accident.ıı
>> page 26
>> First,to be con-
>> demned as exclusionary,a monopolistıs act must have an
>> anticompetitive effect.ıı That is, it must harm the competi-
>> tive process and thereby harm consumers. In contrast,harm
>> to one or more competitors will not suffice.The [Sherman
>> Act ] directs itself not against conduct which is competitive,
>> even severely so, but against conduct which unfairly tends to
>> destroy competition itself.ıı
>> page 40
>> 3.Agreements with Internet Access Providers
>> page 42
>> We turn now to Microsoftıs deals with IAPs concerning
>> desktop placement. Microsoft concluded these exclusive
>> agreements with all the leading IAPs,ıı
>> page 46
>> See
>> generally Dennis W.Carlton,A General Analysis of Exclu-
>> sionary Conduct and Refusal to Deal Why Aspen and
>> Kodak Are Misguided ,68 ANTITRUST L.J.659 (2001)(explain-
>> ing various scenarios under which exclusive dealing,particu-
>> larly by a dominant firm,may raise legitimate concerns about
>> harm to competition).
>>
>> By ensuring that the majorityııof all IAP subscribers
>> are offered IE either as the default browser or as the only
>> browser, Microsoftıs deals with the IAPs clearly have a
>> significant effect in preserving its monopoly;they help keep
>> usage of Navigator below the critical level necessary for
>> Navigator or any other rival to pose a real threat to Micro-
>> soft ıs monopoly.See,e.g.,id .ĥ 143 ((Microsoft sought to
>> divert enough browser usage from Navigator to neutralize it
>> as a platform.ıı);see also Carlton,at 670.
>>
>> Plaintiffs having demonstrated a harm to competition,the
>> burden falls upon Microsoft to defend its exclusive dealing
>> contracts with IAPs by providing a procompetitive justifica-
>> tion for them.
>> Accordingly, we affirm the District Court ıs deci-
>> page 47
>> sion holding that Microsoftıs exclusive contracts with IAPs
>> are exclusionary devices,in violation of §2 of the Sherman
>> Act.
> --
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William X Walsh <william@userfriendly.com>
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