[CCWG-ACCT] WP2 Issues from last night's call

[Malcolm Hutty]

Greg,

Thank you also for being willing to consider my suggestion.

Some brief comments to your specific points:

On 04/11/2015 22:47, Greg Shatan wrote:
> 
> I still have an issue with the phrase "service that uses the Internet's
> unique identifiers."  I've looked at this phrase a hundred times, and I
> would not have come up with the idea that it is limited
> to *_hardware_ *(which are things, not services...). 

I agree, a service is not hardware. I assume you're replying to my mail,
in particular where I referred to web servers and mail servers. These
are not hardware, they are services. A web server is not a
microprocessor, it is a data processing service that instantiated
through software running on a microprocessor. But everyone (whether from
the technology community or the law) calls it simply a "service".

> Registries and registrars clearly are services
> that use the Internet's unique identifiers; 

No, they really don't (or not in the relevant way). They enable the use
of those identifiers. That's not the same thing.

Imagine I go to GoDaddy and register hutty.com. Would you say that
GoDaddy is using hutty.com? Surely not.

When I point hutty.com at a mail server I operate, am I using hutty.com?
Surely yes.

Remember, this isn't going to be looked at by some sort of Cartesian
"Evil Demon" that will be trying to twist the answer into precisely the
opposite of what is reasonable, despite all evidence to the contrary.
This will be looked at by the ICANN Board, quite possibly by the IRP,
and - very unlikely, but with a faint possibility - by a court. The
Board has every reason to interpret this how we would expect, and the
IRP and the court are fair and impartial arbiter, not evil demons. So
they will look at this phrase in the context of the rest of the Mission
statement, and indeed the rest of the text. It really isn't as hard to
interpret as you are making out.

> 
> To capture the meaning you attribute to the phrase in question, I would
> suggest the following:
> 
> "[microprocessor controlled] technologies that use the Internet's unique
> identifiers to access the Internet"

Honestly, I could accept that if really necessary, but it seems absurdly
cumbersome.

> In this way, we have more explicitly limited the "service" as you
> suggest, and also limited the "use" as you suggest.  And we avoid the
> ambiguity of the word "services," which clearly means very different
> things to different people.

You play upon being a lawyer, but from your reasoning you make me wonder
if you are a lawyer with an intellectual property specialism not used to
telecoms law. Referring to "services" as I have described is, I assure
you, entirely common within telecoms law within the EU and the UK -
which is where I have direct knowledge. I do not have professional
experience of US federal telecoms law, but as someone with a layman's
interest I'm pretty confident the term is also in common use there.

Moreover, the term "service" is also used to describe web service, mail
service etc, in the manner I have described, amongst the technical
community (Andrew? Are you still here? Could you confirm please, if
you're following this thread?).

And, taken as a whole, I think any reasonable layman would also
understand the intent.

ICANN gets to regulate the DNS system, in the manner and to the extent
set out in more detail in other clauses. It doesn't get to regulate the
rest of us, with entirely unrelated businesses, merely because we've
signed up for a domain name. Seriously, the concept really isn't that
difficult.

I also happen to think the Food and Drug Agency can get to regulate
food, without being granted unlimited lawmaking power over anyone that
wants to eat. But hey, maybe that's just me.

-- 
            Malcolm Hutty | tel: +44 20 7645 3523
   Head of Public Affairs | Read the LINX Public Affairs blog
 London Internet Exchange | http://publicaffairs.linx.net/

                 London Internet Exchange Ltd
       Monument Place, 24 Monument Street, London EC3R 8AJ

         Company Registered in England No. 3137929
       Trinity Court, Trinity Street, Peterborough PE1 1DA