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Re: [ga] Court oversight
I don't see how an order to ICANN to have a registry it doesn't control do
something would be effective.
The order, were there to be one, should be directed to the registry.
In any case, it would be somewhat unusual for a court in a dispute between
A and B to enjoin (non-party) C.
On Mon, 9 Oct 2006, Karl Auerbach wrote:
Hugh Dierker wrote:
It could just be me but i don't think we need US courts directing policy
regarding the running of the Net.
It may be that we don't need it - but:
1. Given ICANN's awful performance, in particular, its overt tilt in favor of
trade/service mark over any other source of naming, courts can be excused if
they feel that ICANN represents a very nice lever that can be pulled as part
of a remedy for other kinds of wrongs that come before a court.
2. The US legislative policy, in particular "in rem" jurisdiction over domain
names, instructs judges that they ought to look with favor on remedies that
compel action on the part of ICANN, domain name registrars, and domain name
registries even if ICANN and the registr* are only tangentially involved, as
they are in this case.
3. ICANN could claim that sovereign immunity, that it is an arm of the
department of commerce. But it has not yet done so in any other actions
(although I would expect it to do so in any actions against it as a
combination in restraint of trade.)
4. If ICANN somehow thinks that it is immune, it is going to be surprised.
ICANN's intrusive business regulation - everything from the UDRP to the
establishment of prices, terms of sale, duration of sale, and the ICANN tax -
all make it clear that ICANN is hardly a disinterested and distant party to
this but is, instead, deeply involved with both a financial stake in the
outcome as well as many mechanisms of control.
In summary, ICANN has filled the legal system with internet-control
pheromones that will attract attorneys and judges and which will, perhaps
occasionally at first, result in judicially imposed control of pieces (small
pieces at first) of the net.
ICANN created this situation by becoming a body that regulates business and
economic policy and engages in social engineering. ICANN could have done
what it never has done - which is to protect the technical stability of DNS
and IP address systems - but it has not done so and has thus made itself
vulnerable.
--karl--
--
http://www.icannwatch.org Personal Blog: http://www.discourse.net
A. Michael Froomkin | Professor of Law | froomkin@xxxxxx
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
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