Re: [wg-c] Unofficial report on L.A. meeting

[Dave Crocker <dcrocker@brandenburg.com>]

At 08:57 AM 11/6/1999 , A.M. Rutkowski wrote:
>At 11:15 AM 11/6/99 , Dave Crocker wrote:
>>view, with so many other, expert litigators quite comfortable with the 
>>path being taken.
>
>It would be useful to cite some of the articulated, reasoned
>analysis of these expert litigators who are so comfortable.


Since you are the one raising the spectre, the burden of citation rests on 
you, as I requested in my previous note.

It is easy to cite random cases right and left, independent of their 
relevance.  Consequently please include enough detail to quote some of the 
relevant text, so that readers of this list can discern the adequacy of 
your claimed position.

(For other readers of this list, my request is based on a long history of 
some people casually tossing out just such random citations in these 
discussions, apparently hoping that no one will read them carefully.)

Please remember, Tony, that a fear is not valid simply because someone 
expresses it.


>>The line of argument we are being given does support the concern that 
>>starting with a for-profit makes reversing the decision much more 
>>difficult than starting with a not-for-profit.
>
>What gives this - or any other ICANN group - the right
>to restrain competition in this fashion in the provision


This group hasn't, and won't, be doing the restraining.  It has no formal 
decision-making authority, as you well know, Tony.  This group is to 
discuss some topics and seek rough consensus on them, passing them up the 
ICANN management chain.

ICANN is not identical to the IETF, but the model of working groups and 
multiple levels of review and approval is.  For that matter, that applies 
to Tony's much-beloved previous employer, ITU, too. This model is 
well-established and well-accepted, including in law, as you know.

While it is intriguing to suggest that other, untested models be used, it's 
hardly prudent.  (I am assuming, Tony, that behind your criticisms there 
lies a constructive alternative model, albeit one undocumented.)

Of course, the really interesting question is why the model is still being 
challenged at this point.  Your client, NSI, has formally embraced ICANN 
and is participating highly constructively in its processes.

Surely you can appreciate the need for moving on from entrenched efforts to 
obstruct ICANN's work and move towards a more collaborative tone?


At 12:28 PM 11/7/1999 , A.M. Rutkowski wrote:
>Hi John Charles,
>
>>Wow, this *is* fun. On the one hand you sued (and lost) IANA/IAHC/... about
>
>Actually...he won.  His California attorney filed

What and amusingly creative, albeit silly, view to espouse.  The 
friendliest reading of the judge's opinion:

         <http://www.brandenburg.com/misc/iodesign-judge.html>

will come to quite a different conclusion than you offer.

A tiny sampling:

>Furthermore, I find that the evidence is just not sufficient to support 
>the claim of the Plaintiff, that either any of these Defendants, whether 
>it be the IANA or the Ad Hoc Committee, or the Internet Society are acting 
>in an anti-competitive manner.


Now as to the timing of the case being dropped:

>action.  The Federal agencies granted the relief,
>so his California action became moot and he dropped
>it at the TRO stage.

That is a nicely revisionist statement of timings.  The essential pieces 
that are missing are that a) there were no government actions yet taken, so 
that IOD did not have the benefit of knowing what would be the outcome, and 
b) the IAHC pro bono attorney was sufficiently impressed with the text of 
the judge's TRO rejection that he gave IOD a deadline for dropping the 
case, on pain of having IAHC's legal costs added to IOD's burden.

IOD dropped the case a few hours before the deadline.


>Talk's cheap.  It's not apparent you've actually
>done anything.

Presumably the assessment about cheap talk and absence of constructive 
effort comes from expertise?

d/

ps.  In case it has not occurred to other readers of the wg-c mailing list, 
all of this thread serves mostly to distract the working group from 
pursuing its charter.  That suggests the best line is to ignore futher 
efforts to sow misinformation and fear.

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Dave Crocker                 675 Spruce Drive        Tel: +1.408.246.8253
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