Re: [ga] Re: iCANN's protection

["Roberto Gaetano" <ga_chair@hotmail.com>]

Thomas,

I think that this is the real question we are trying to answer (with very 
little success so far): what is ICANN and what should it be?
- is it an (industry-driven) standardisation body?
- is it a trade or professional society (self-regulation body)?
- is it a (government-driven) regulatory body or agency?

IMHO, the confusion is that it is a little bit of all.
- as an industry-driven standardisation body it sets standards (criteria), 
like adoption of UDRP
- as a professional society it decides what are the criteria to get in 
(Registrar and/or Registry accreditation, for instance)
- as a regulatory body it tries to enforce the standards it has set as a 
standardisation body

The main problem is to figure out the legal framework in which it operates, 
because depending on what point of view you take its legal liability is 
different.
Of course the jurisdiction is Califirnia, but what will be the parameters of 
judgement if there will be a lawsuit? (being this show run in the US, the 
correct question is not "if?" but "when?")

IANAL, and therefore I have a very foggy idea on whether somebody that has 
not been picked in the first run of TLDs has any chance to win a lawsuit, 
and on what grounds. What is most scary is that there are chances that 
he/she may win a lawsuit when the TLD is already operating with a different 
Registry, with all the consequences you may think of.
Or will USG, by endorsement of the choice of ICANN BoD, guarantee adequate 
legal protection (but in that case, forget all self-regulatory industry 
effort nonsense, ICANN is acting under strict authority of USG and Dave 
Crocker is right, we are facing a US regulatory body, with some 
"international" window-dressing).

Regards
Roberto



>From: Thomas Roessler <roessler@does-not-exist.org>
>To: ga@dnso.org
>Subject: Re: [ga] Re: iCANN's protection
>Date: Thu, 19 Apr 2001 08:31:24 +0200
>
>On 2001-04-18 15:15:25 -0700, Dave Crocker wrote:
>
> > Let's just check a question about the use of the term "monopoly".
>
> > There is a type of oversight body, sometimes called a "public
> > utilities commission".  It does not provide direct service;
> > rather it oversees the work and pricing of those organizations
> > that DO provide service.  I have never heard anyone refer to such
> > a commission as a monopoly.
>
>First of all, the C in ICANN stands for corporation, not for
>commission.  I'll quote Kent on that importance of that distinction
>(<20010408082523.A15420@songbird.com>; the quoted text in the
>beginning is from Siegfried Langenbach):
>
>| >  Making representatives ( elected boards ) responsible to those
>| >  who elected them is a fundamental issue IMO ( otherwise they are
>| >  not representatives in the words meaning ).
>|
>| In fact, they are not "representatives", and they cannot legally be
>| so. That is a crucial difference between a government and a
>| corporation; ICANN is a corporation, and its directors, by law, have
>| a fiduciary duty to the corporation and its purposes, and not to the
>| people who (s)elected them.  This is an absolutely fundamental
>| distinction.
>
>Second, I'd like to recommend
><http://www.m-w.com/cgi-bin/dictionary?monopoly> to you:
>
>| Etymology: Latin monopolium, from Greek monopOlion, from mon- +
>| 	pOlein to sell
>|
>|
>| 1 : exclusive ownership through legal privilege, command of supply,
>| 	or concerted action
>| 2 : exclusive possession or control
>| 3 : a commodity controlled by one party
>| 4 : one that has a monopoly
>
>Third, you may wish to have a look at the California PUC's web
>pages, where their legal basis, their organization, and public
>representation in the process are at least roughly described.
>You'll note that ICANN looks vastly different.
>
>--
>Thomas Roessler			    <roessler@does-not-exist.org>
>--
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