RE: [wg-c] historical trivia (getting to the Shepperd/Kleiman "p

["Roeland M. J. Meyer" <rmeyer@mhsc.com>]

Paul, I endorse everything you said here, save one item. The Name.space vs.
NSI suit named the wrong party. A fact that both Chris Ambler and I informed
you of. Of course the DoC is covering NSI, NSI *is* operating under contract
and therefore the root-servers.net system is "work for hire", which
indemnifies the contractor from certain contingient liabilities. The
responsible party is currently the USG/DoC/NTIA, which was NOT named in the
suit. These facts are supported in the judgement and render that case moot.

As always, IANAL, see a legal advisor before acting on these words.

As to the remainder, the judgement is irrelevent. The relevent points are
that ICANN is NOT a regulatory bureau and isn't even a part of the USG. No
private company can make law, no private company can enforce law. The
reasons for this go way back to pre-revolutionary days.This is a fact that
allows new TLD root providers to challenge and compete with ICANN, even to
this very day, without the need for grand-fathering provisions or clauses.
The ICANN is not, and can not  be authoritative at that level. Whereas the
NTIA can be. The problem is that DOC/NTIA is ONLY authoritative within US
jurisdiction. The USG isn't stupid enough to hamstring US-based companies
whilst allowing the rest of the world free reign. At least, I hope not.

The threat of government intervention is an empty one. The concept of all of
the worlds nations agreeing on such a course of action, while laudable, is
amusing, given the current reality of international politics.

> -----Original Message-----
> From: owner-wg-c@dnso.org [mailto:owner-wg-c@dnso.org]On
> Behalf Of Paul
> Garrin
> Sent: Tuesday, March 14, 2000 6:08 PM
> To: William X. Walsh
> Cc: wg-c@dnso.org
> Subject: Re: [wg-c] historical trivia (getting to the Shepperd/Kleiman
> "p
>
>
> >William Walsh wrote:
> > Name.space and any of the operators of alternative TLDs
> have no right to expect
> > introduction or prior use rights here.  None.
> >[...]
>
> Do you care to back this up with some facts?
>
> > Any proposal which gives "alternative" tld operators
> advanced standing in this
> > process, or any expectation that that they will have any
> rights to the strings
> > they have self declared for themselves, would be patently
> unfair. It would work
> > against those who, unlike yourself, have invested years of
> working within the
> > system to acheive these goals.  You should have no more and
> no less standing
> > than anyone else at the end of this process.
> >
>
> Any act by ICANN or others to forclose on existing TLD
> registry operations
> would be patently unfair and even perhaps ILLEGAL, and any attempts to
> do so will be challenged if necessary.  ICANN and this
> process is by CONSENT
> and NOT mandated by law. Any and all cooperation within this
> process is
> VOLUNTARY and this process is not necessarily binding.  ICANN
> has not yet
> been given the authority over the ROOT, and possibly may not
> if it fails in
> its mission.  I am participating in this forum in good faith,
> and beilieve
> that the outcome muyst be fair, and at the same time will
> uphold my company's
> rights, and the rights of other EXISTING TLD REGISTRIES to
> continue operations
> and to seek global recognition of the TLDs already in operation.
>
> Name.Space and others, including Mr. Ambler, preceed ICANN,
> and have rights
> in this UNREGULATED industry to be entrepeneurs and to
> operate independently,
> and DO have rights to operate the TLDs that they currently
> operate.  ICANN
> is not a regulatory body by statute, and neither is the DoC.
> Any regulatory
> measures that emerge from this process are by agreement and
> not mandated by
> law.  If this process fails to come up with a workable
> consensus, Government
> regulation may follow.
>
> > Your arguments opposing this view and based only on
> emotion, and not on the
> > facts.  The facts do not support your view, and the courts
> have even recognized
> > that your arguments were invalid.
> >
>
> The decision in the Name.Space v. NSI case was a POLITICAL
> decision and
> NOT a legal one.
>
> In fact, if you read the decision, the court make it clear the NSI's
> refusal to deal and grant access to the essential facility (the ROOT)
> was in fact ILLEGAL.  The court ruled that NSI's conduct IN THIS CASE
> was immunized because it was persuant to a US Government directive.
> It goes on to say that such conduct in the past and in the future
> is subject to antitrust prosecution.  That includes ICANN or any
> other party who may become the recognized operator of the "legacy"
> root.
>
> It looks like your emotional willingness to cheer the "loss" kept you
> from reading the substance of the decision (did you even read it?) and
> realizing the greater implications of the decision, and the fact that
> it was an act of PROTECTIONISM by the US Government on behalf of NSI,
> and not justice.
>
> The First Amendment argument advanced by Name.Space was acknowledged
> by the Court, in that TLDs are protected by the First Amendment, with
> reference to the "future" new TLDs which may be "expressive".
>
> http://namespace.org/law/appeal/2ndcir-dec.html
>
> > Any attempt to grandfather "alternative TLDs" into the
> system will meet with
> > staunch opposition, and there is no way that consensus will
> exist on that point.
> >
>
> By a few paid lobbyists and professional detractors, many of whom
> occupy this list, and who have plauged this "process" since
> its inception.
>
> Paul Garrin
> pg@name.space
> http://name.space
>
> ---------------------------------------------------------
> Get Free Private Encrypted Email https://mail.lokmail.net
>         Switch to Name.Space: http://namespace.org/switch
>
>
>