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Engaging In Dialog Difficult, When Only One Side Sees A Need - The US vs. WTO...By Nelson Lardner

Encountering frustration at every turn (especially in the wake of the underhanded passage of last fall's UIGEA), little Antigua, its chief domestic industry -- offshore bookmaking -- ravaged by a series of United States policymaking decisions, made a threatening gesture: consideration of dropping recognition of intellectual-property protections.

The recent pattern of United States' actions yields an unadulterated view of the United States' prevailing protectionism-first attitude, with the thoroughbred-racing industry currently occupying center-stage as Exhibit A.

A letter published in Sunday's Daily Racing Form, signed by Peggy Hendershot, the National Thoroughbred Racing Association's vice-president for legislative affairs, provides a crystal-clear look at flat racing's precise attitude towards the current landscape.

And we quote:

"Last week, Antigua threatened to withdraw its protections for intellectual property in retaliation for the loss of access to the U. S. gaming market in the long-running World Trade Organization dispute.

"Those threats notwithstanding, the situation is far from dire.

"The U. S. government remains on track to remove the WTO from the determination of who has access to U. S. pari-mutuel horse racing activity. The process of removing the United States' gaming commitments, which the U. S. government initiated earlier this year, is likely to conclude by early 2008. At that point, the U.S. government will no longer be obligated to provide market access to foreign gaming services suppliers. The question will once again be solely the province of U.S. federal and state law. Antigua's threats will not affect that outcome.

"Antigua's threats for authorization to retaliate in the amount of $3.4 billion, reportedly against U. S. intellectual property rights, will be subject to review by arbitrators who would reject the request once the United States completes the withdrawl of its market access commitments. At that point, the value of Antigua's rights arising from the dispute it initiated in 2003 would be zero.

"If the Unites States seeks to compensate the European Union (and other WTO members) for the withdrawl of commitments on gambling services covered by the WTO's General Agreement on Trade in Services, it would do so by offering market access in other service sectors, not gambling.

"The National Thoroughbred Racing Association fully supports the United States' Decision to withdraw its gaming commitments and have long advocated this action."

Talk about smug! If an open letter could be said to strut, this missive fills the bill. It's amazing how cocky one can get with enough friends in high places, greased by a number of hefty, carefully calculated contributions to key politicians.

Now, more and more of us know just how Jay Cohen felt, when . . . even after having every rational reading of the prevailing law on his side . . . JC caught a judge whose mind was apparently made up, going in. Seeing more and more of that kind of thing, these days, alas . . . with deals all wrapped up, to suit contributors' and cronys' interests, and what are YOU going to do about it, little man?

On the heels of the NETeller verdict which came down against co-founder Stephen Lawrence, all this gets more and more difficult to comprehend, when viewed from any other perspective. The widely-disseminated quote attributed to Lawrence on the heels of the decision speaks volumes:

"I came to understand that providing payment services to online gambling Web sites serving customers in the United States was wrong."

Many lawyers might take exception to that statement, so long as the subject had kept himself away from the United States and/or any of its territories - which includes the Virgin Islands, where Lawrence was finally picked up by U. S. authorities.

If Lawrence had steered clear from any land-based entity under U. S. control, don't believe he's ever picked up - and he never needs to enunciate the above statement -- which only makes sense if you're caught on United States soil on the heels of a history of engaging in the providing of a NETeller-like service.

Lawrence having to "give", to the extent he did, is a terrible harbinger for many other dominoes yet to settle into their final resting places. The good old days of 2005 are almost certainly gone for the foreseeable future, while we're left to see just how many expensive hoops will be established for those still desirous of playing some of our favorite games online.

Citizens wishing to obey the laws of the land are hoping for some cost-efficient options to be presented. Other than patronizing outlets previously established under the auspices of the long-established customary laws of the marketplace . . . those hopefuls may need endure a long wait. We'll see.

Nelson Lardner

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