Subject: Re: Open issue: requester identifier in DPV response

From: "todd glassey" <[email-masked]>
Date: Wed, 8 May 2002 10:08:49 -0700

Michael restraint of trade is actionable. refusing to allow any effort to
pass without a definition of the formal processes to be applied to all
submissions, i.e. how the IETF  is setup today, leaves the entirety to the
WG Chairs and their AD's and that it the problem and I assure you that if it
can be demonstrated to any level that anyone in a standards organization
gave undue advantage to one protocol over an other and anyone suffered a
financial loss because of this act, that this is assuredly actionable.

Todd

----- Original Message -----
From: "Michael Froomkin - U.Miami School of Law" <[email-masked]>
To: "todd glassey" <[email-masked]>
Cc: "PKIX-IETF" <[email-masked]>; "LISTS - IETF-IESG" <[email-masked]>;
<[email-masked]>
Sent: Monday, April 29, 2002 8:10 PM
Subject: Re: Open issue: requester identifier in DPV response

> "Actionable"?  I rather doubt it.  At least not in the US, and not without
> many aggravating circumstances.
>
> On Sat, 27 Apr 2002, todd glassey wrote:
>
> > Stephen - I think that it is very likely that ANY involvement by a WG
Chair
> > in ANY protocol at any level is a conflict of interest and actionable as
> > such. It shows a predudicial predisposition towards that protocol and
favors
> > it over all others. This is why I am demanding the rewriting of the WG's
> > charter as well as the approriate sections of RFC2026 et al..
> >
> [....]
> --
> Please visit http://www.icannwatch.org
>
> A. Michael Froomkin   |    Professor of Law    |   [email-masked]
> U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
> +1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
>                         -->It's hot here.<--
>

---

From: "Michael Froomkin - U.Miami School of Law" <[email-masked]>
Date: Wed, 8 May 2002 21:37:04 -0400 (EDT)

Merely having a bias, even one that hurts someone, is not a violation of
US (or, insofar as I understand it, EU) anti-trust/competition law.

Oversimplifying slightly, in order to find an offense, you would have to
show concerted action, by a person or persons with a financial interest,
against one or more competitors.

Generally speaking, and again oversimplifying, valid technical grounds is
a defense against many if not most otherwise valid claims of abuse of
standard making.

You will find a less simplistic discussion of these issues, in the context
of US law and ICANN-as-a=standards-body, in an article I am co-authoring
with Mark Lemely, a leading antitrust authority.  A copy of the working
draft is here:
http://personal.law.miami.edu/~froomkin/articles/icann-antitrust.pdf

The statement in your last 3.5 lines of the post quoted below is false as
a matter of US law.  I'd be mildly curious to learn at what law school you
acquired this view, or which non-US (or non-Earth?) legal system you are
referring to with your assurance.

---

From: "todd glassey" <[email-masked]>
Date: Mon, 13 May 2002 11:47:51 -0700

Michael - the issue here is that the IETF and IESG are essentially run under
their own internal control and this is what is unacceptable. The overall
process of any standards organization must be able to withstand any
reasonable prosecution for wrong doing. If not then the value of the
standards produced comes into question.

Oh and as to the bias, the bias is not a problem until it causes any
one effort to be elevated over others, and then it becomes a serious
problem. And we are long past that point herein.

What this management team have successfully done to date is to build a
monolithic approval model and used it to play the game their way and no
other. This is of course not true of everyone in the management makeup but
it certainly is true of some. Which is exactly why this organization needs
restructuring.

The problem with techies is that we have a tendency to only look at things
in front of our face, i.e. at ground level, or things that interest us and
that is an
issue. The view of the problem is not even visible at ground level for the
most
part, and so the ostriches amongst us are content to keep their heads in the
sand until some predator comes along and "harvests" them.

The bottom line is that these IP issues and the Antitrust issues are real,
from my opinion and as such actionable. Thank god I don't have a license to
practice law or I would go bonkers filing against these folks...

Todd

----- Original Message -----
From: "Michael Froomkin - U.Miami School of Law" <[email-masked]>
To: "todd glassey" <[email-masked]>
Cc: "PKIX-IETF" <[email-masked]>; "LISTS - IETF-IESG" <[email-masked]>;
<[email-masked]>
Sent: Wednesday, May 08, 2002 6:37 PM
Subject: Re: Open issue: requester identifier in DPV response

---

From: "James Seng" <[email-masked]>
Date: Tue, 14 May 2002 17:49:46 +0800

Yes, thank god.

-James Seng

> > > > > it over all others. This is why I am demanding the rewriting of
the
> WG's

---

From: "todd glassey" <[email-masked]>
Date: Wed, 17 May 2000 14:14:37 -0700

Michael - Ahahahahah (in my best Steve Martin from that fateful bar scene in
"Roxanne") - 'Ohhhhh, you got me there', I'm just some dumb hacker and you
are, well, you are...

----- Original Message -----

SNIP --

> a matter of US law.

OK Professor Froomkin, just one simple question - is this  your official
statement to us as Counsel, and does that mean that if any of us that rely
on your advice are damaged or fined as part of any antitrust action herein,
that you will bear the financial responsibility?

See thats the wonder of being a lawyer these days - you dont get to have
mere mortal opinions anymore, not when you assert them as more than simple
fact, but rather as the fact.

So which is it big guy. Tell us all will ya?

> I'd be mildly curious to learn at what law school you

Mars' no doubt, eh?

> > > A. Michael Frocking   |    Professor of Law    |   [email-masked]

---

From: "Michael Froomkin - U.Miami School of Law" <[email-masked]>
Date: Wed, 15 May 2002 14:17:30 -0400 (EDT)

This is silly, and I suspect you know it.  Perhaps it is no accident you
posted this after I wrote to you privately and asked you to stop emailing
me off-list?

Of course what I write here is not an "official" statement since I'm not
an "official" of anything. And it's not a statement as "counsel" because I
don't have a client here (or, indeed, at present any clients anywhere) and
am not licensed to practice in most of the places members of this list are
likely to be found. It's my personal academic opinion as a law professor
on a purely hypothetical question.  You may take it with a grain of salt,
since anti-trust is not my specialty, although I've recently had a crash
course in it by co-authoring a paper with one of the leading specialists
on anti-trust issues raised by ICANN.  My views are set out there for all
to see.

If you think you have an actual monetizable injury, I urge you to go find
a good lawyer admitted to practice wherever it may be you live, pay her a
lot of money, tell her the detailed facts, and get the sort of opinion you
can rely on given your facts and circumstances.  In making important life
choices such as whether to file a lawsuit, it would be beyond foolhardy to
rely on generalized and hypothetical comments on a mailing list if you
believe you are in possession of facts that might make out such a claim.

None of which is inconsistent with me saying that I personally can't
imagine what such a claim would look like without there being certain
types of facts, notably those I mentioned earlier in this thread, a set of
facts rather different from the ones you opined would suffice. [Note also
that I expressed no opinion as to whether either set of facts exist.] But
go ahead, find a laywer, then surprise me by filing a meritorious claim.
I'll learn something from the judge's opinion. Or someone will.

> fact, but rather as the fact.

Actually I gave you a URL to a paper. Why don't you read it?

---

From: "todd glassey" <[email-masked]>
Date: Wed, 15 May 2002 11:45:15 -0700

By the way Michael - why were you suggesting that the officers of the IETF
and its other management have immunity from the skulls of Antitrust

Was it that they are the State's "Actors" under the Noerr-Pennington
Immunity model?  OK - but  486 US 501 seems to dismiss this, and in any
event the members of the IETF's management are there for their own
commercial and professional enrichment. Not some altruistic endeavor. So
what was the specific reason that you claimed I was wrong?

My take is that perhaps the IAB might pull this off and certainly ICANN
members might as you so rightly noted in your excellent dissertation on
ICANN reform. I especially enjoyed the section on the ICANN IP issues under
UDRP scenarios but I think the IP issues facing the standards portions of
the ICANN (IETF/IESG)  are different than those facing the trademark/urdp
groups within the registrar management functions.

Again this is just my two cents.

Todd

SNIP -