Re: [ga] Court oversight

[Veni Markovski <veni@xxxxxxxx>]

Karl,
every legal system has its own pecularities. In the US anyone can sue 
anyone on anything.

ICANN has not created this situation, as you say. What a judge does, 
is up to the judge, and his/her interpretation of the laws. You 
could, but you shouldn't, speculate that if ICANN hasn't done 
this-and-that, then this judge might have decided differently. But 
what about that other judge, who may have decided exactly the same, 
should the "if" has happened?

Saying that ICANN is not doing its core job means you acuse not the 
Board (which I am used to), but the staff, and esp. the staff that 
actually does the work, which keeps the Internet running. That's 
unacceptable. While I don't care about people blaming me, or other 
directors, for whatever reasons, I do care when the staffers are 
being attacked. Due to the fact that they actually do their job, no 
one from them will respond to you. And that's actually bad - because 
your words may be accepted by readers as true.

Hugh Dierker asumeed that the US court direct the policy ragarding 
the running of the Net, which is also not true. What the court wants, 
and may achieve after a certain procedure, is to have a domain name 
effectively shut down. This happens every day in hundreds of 
countries, in perhaps thousands of cases. Certain countries have 
effectively shut down millions of domain names for their citizens, 
but I have not seen such reaction on this list. I wonder why... Oh, 
yes, I know! Because ICANN has nothing to do with that!

Let's be serious - if ICANN is served with an order requesting 
something, there are lawyers, whose job includes responding to such orders.

best,
veni


> 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--


Sincerely,
Veni Markovski
http://www.veni.com

check also my blog:
http://blog.veni.com