[CCWG-ACCT] Please review regarding IAB comments on Mission Statement

[Chris Disspain]

Whilst all of this claim and counterclaim, legal banter, use of Latin, general attempts to out-lawyer one another and engaging in academic discourse whilst wearing a virtual wig and gown is all very interesting, the key points IMO are these:

A suggestion has been made that the wording of the current bylaw could be interpreted in a way that inaccurately reflects the true position. That may or may not be correct. 

Some suggestions have been made about alternative wording. 

A change in the wording to be "more accurate" in respect to the protocol parameters could well make the wording "less accurate" in respect to the DNS (or aspects of it).

All suggested alternatives are open to interpretation. The only people qualified to wordsmith this are US corporate lawyers with experience in Californian law.

Significant changes to key bylaws should not be undertaken lightly. 

This has very little to do with accountability changes required for the transition.

We are building a mechanism under which by law changes either have to be approved by or can be blocked by the community. 

It may well be that ICANN's bylaws require significant review and the processes we are putting in place will ensure that the community has the ultimate responsibility for that.

Now is not the time to tackle such substantive issues.

Cheers,
 
Chris Disspain | Chief Executive Officer
.au Domain Administration Ltd
T: +61 3 8341 4111 | F: +61 3 8341 4112
E: ceo at auda.org.au | W: www.auda.org.au
 
auDA - Australia's Domain Name Administrator

> On 1 Nov 2015, at 21:25, Nigel Roberts <nigel at channelisles.net> wrote:
> 
> With great respect, I do not think that word means what you think it means ... irrespective of whether the case is on appeal or not (and, as Eberhard note, it IS on appeal  it is only the rationale of the case itself (which lawyers call the 'ratio decidendi') which is of any precedential value, and even then only in the jurisdiction in which it was decided.
> 
> [[For information on the latest status on the appeal -- see
> http://www.domainpulp.com/legal/icann-next-round-in-terrorism-case-set-to-move-to-d-c-jurisdiction/  --- all the documents in the ongoing case may be found on ICANN's website --- 100% for transparency there!]]
> 
> The rationale of the case contains absolutely NOTHING significant about ICANN's statutory or other authority over TLDs. If you think it does, I'd be much obliged it you could direct me to the relevant paragraphs in the judgment, please.
> 
> We are rather oversupplied with lawyers and legal academics in this WG, but I will risk correction and re-education and public excoriation and will venture to brief the case and submit that the rationale of the case as decided at first instanct, is,rather,  as set out below:
> 
>            - - -
> WEINSTEIN & ors (Applicant)
> 
> -and-
> 
> INTERNET CORPORATION FOR ASSIGNED NAMES/NUMBERS (Respondent/Garnishee)
> 
> FACTS: The Judgment Creditors held money judgments against three sovereign countries which remained unsatisfie. They issued proceedings naming the Internet Corporation for Assigned Names and Numbers (ICANN) as a Third Party Garnishee allegedly holding property belonging to the Judgment Debtors; specificall Internet Protocol ('IP') address blocks, and top-level domains including International Domain Names ('IDN TLDs')
> 
> JUDGMENT: The Judgment Creditors could not attach the IP addresses and TLDs that they sought to attach.
> 
> RATIO: It is not necessary to decide whether top-level domains are property in order to decide this case, because even if the Applicant contentions regarding property are true, under the law on attachment in the District of Columbia, they cannot be the sort of property that may be attached/garnished (in D.C.). Accordingly the Applicant fails.
> 
> OBITER: TLDs might indeed be intangible property, but it was not necessary for this Court to decide whether they are or not.
> 
>            - - -
> 
> (If anyone understands the case differenly, I would be grateful for any suggested amendment to the above)
> 
> And there's nothing about the IANA contract or ICANN's authority (or lack of it), as far as I can see.
> 
>> On 31/10/15 23:41, Paul Twomey wrote:
>> 
>> 
>> Why this may be important, is that judges have previously relied on the
>> IANA contract with the US Department of Commerce to outline the
>> authority under which the rules ICANN has put forward should be
>> honoured  (Se
>> http://www.leagle.com/decision/In%20FDCO%2020150105808/STERN%20v.%20THE%20ISLAMIC%20REPUBLIC%20OF%20IRAN)
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