Re: [wg-c] Eureka?

[Kent Crispin <kent@songbird.com>]

On Sun, Aug 08, 1999 at 10:37:08PM +1200, Joop Teernstra wrote:
> At 09:16 PM 7/08/1999 -0700, Kent Crispin wrote:
> 
> >So what we are discussing is not "governance", but rather the
> >contract terms the *private* entity ICANN will impose on registries
> >that wish to use its root zone. 
> >
> >For example, if ICANN decided that it will only do new registry
> >contracts with non-profit entities, that would be a perfectly
> >reasonable thing for a private entity to do.  
> >
> 
> There is no need to come up with bad analogies here.

Yes, I agree.

What I said was fact, not analogy.  This discussion is on the
fundamental legal basis for ICANN, the basic legal environment in 
which it exists.  It is a *private* corporation with contracts with 
other entities.  From a legal point of view Tony has described it 
precisely.  Once again, this is not analogy, it is simple fact.

> 1. ICANN is not your garden-variety private entity. It is under obligations
> to be as public as possible.

Nonetheless, it is a *private* entity.  It is not a part of any 
government.  Those obligations, from a structural legal point of 
view, are the same as for a non-profit corporation with a government 
grant to study amphibians in ephemeral streams.

> 2. ICANN sits at the apex of a hierarchy pyramid controlling a set of
> singular chokepoints of the Internet. Under such circumstances imposing
> contract terms=governance.

Yes, it is a monopoly.  I said that.  From that perspective,
Microsoft engages in governance, through contract terms it imposes on
its distributors.

> 3. Only a properly constituted ICANN with all it's elected directors in
> place could take decisions of such import.

Nonsense.  ICANN could take such decisions immediately.  From a
practical point of view it might be counterproductive to do so, but
from a legal point of view it is perfectly free to make any decisions
it likes.  This is true whether there are elected directors or not.

> 4. If ICANN would do such a thing against the wishes of the majority of the
> stakeholders, especially if these non-profit entities happened to be
> operating with a common purpose, ICANN would be found acting in
> contravention of both the White Paper and the MoU with NTIA.

This does not contradict anything  I said.  Furthermore, the current 
situation is transitional.  The USG is supposed to be out of it all 
by Sept 2000, in which case the MoU and the White Paper are no 
longer legally relevant.  The only legal control the Government will 
have will be through anti-trust, restraint of trade kinds of things.

-- 
Kent Crispin                               "Do good, and you'll be
kent@songbird.com                           lonesome." -- Mark Twain