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 NeuLevel Drops Claim that ICANN Mandated .biz 'Lottery'
posted by michael on Sunday September 09 2001, @03:10PM
Less than a month ago I speculated that Latest .biz Lawsuit May Help Define ICANN's Legal Status. I said that because the heart of NeuLevel's case in its declaratory judgment action against amazon.com seemed to be 'ICANN made me do it so I ought to get sovereign immunity' (which implied ICANN was a state actor, which implied it owes us all due process). Well, forget it--NeuLevel just filed an Amended Complaint that abandons this, its most provocative argument. Only problem is, I don't see how NeuLevel can win without it. Update: We now have a .pdf copy of the First Amended Complaint.
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NeuLevel amended complaint, filed late last week, is a whole lot like the original complaint -- except NeuLevel dropped the claim that it enjoys derivative sovereign immunity based on its sponsorship by ICANN. While this undoubtedly makes ICANN very happy, it's now very very hard for me to see how NeuLevel can win this case unless it finds a judge who can be persuaded that the Internet is some magic thing that suspends, or transcends, ordinary state law. And even if they do, I can't see them selling that idea to a court of appeals, especially not the very conservative, states-rights-oriented Fourth Circuit.
I'd love to know whether ICANN pressured NeuLevel to drop this count, or whether NeuLevel's lawyers decided it was hopeless (possible, but then why continue with the case at all?). But, alas, we may never know.
As for the full text of the amended complaint, I hope to have a link to an online version presently, but it may take a little while.
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NeuLevel Drops Claim that ICANN Mandated .biz 'Lottery'
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Indeed, consider the White Paper's explicit conclusion that ICANN should be subject to such lawsuits, and not shielded by the government:
Comments: Several commenters suggested that the U.S. Government should provide full antitrust immunity or indemnification for the new corporation. Others noted that potential antitrust liability would provide an important safeguard against institutional inflexibility and abuses of power. Response: Applicable antitrust law will provide accountability to and protection for the international Internet community. Legal challenges and lawsuits can be expected within the normal course of business for any enterprise and the new corporation should anticipate this reality.
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