Blizzard claims that Diablo 3 and its RMT is a free market, there is no gambling, there are no risks associated with the RMT system, lottery tickets in RL can only be bought if you exchange money directly for them, and that their current RMT system has been thoroughly researched and approved by their legal department.
But, this is what is really happening:
* Diablo 3 has listing fees, auction cuts, and cash out fees.
* Auction cuts and cash out fees are not related to chance. They only happen after a successful transaction.
* The listing fee, however, is a gamble every time you post an item. There is a risk that you might not sell the item.
* If your auction does not sell, you lose money. This is a game of chance, there are high stakes in volume, and you are gambling with your money.
* The game is all about volume. Blizzard stated that Diablo 3 was "item centric". There are high stakes and losses associated with high volumes of transactions.
* Blizzard is making most of their profits from listing fees.
* If there was no listing fee, there would be no gambling or "games of chance".
* These aren't 1-10 day EBay auctions or 24-48 hour WoW auctions. These auctions are very short. The shorter the time span; the less likely chance of finding a successful buyer. When you only have 30 minute (or 60 max) auction intervals, you will be hard-pressed to win.
* You are also paying higher listing charges for longer auction periods.
* Auction Houses are regional so there will be millions of players that can be involved in random undercutting of items leading to the house (Blizzard) winning. Item drops are randomly created, meaning that the AH posts are also random in nature.
* It's not a free market when the supply and demand is controlled by a governing body.
* The retailers example is also a poor analogy. When you buy milk from a store, the retailer doesn't charge you a fixed fee, and then check to see if there's a random chance of milk being available because milk is delivered randomly.
Because of the listing fee, it's a game of chance every time and Blizzard has created a brilliant method of indirect gambling to avoid licensing.
By changing loot tables and random chance algorithms, Blizzard can alter volume. Volume or rarity = more listings = gambling by the players (but this is not a gamble for the house) = more listing fee revenue (the house always wins)
Selling an item is a game of chance, there's high risk involved, there's monetary loss involved due to random chance, and it's gambling. If the Auction House is changed so that there is only a cut after a successful auction, then it is not gambling. On a related note, EBay charges insertion fees, however the fee is refunded if your item does not sell.
Even if you're dealing with pennies per transaction, it's still gambling. In the case of Diablo, though, you're dealing with greater volumes of transactions. The game is "item centric" after all with massive quantities of loot dropping from the heavens with random real money value.