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At 05:32 PM 8/4/2016, Mueller, Milton L wrote:<br><br>
<blockquote type=cite class=cite cite=""><a name="_MailEndCompose"></a>
Steve Crocker: Further, the idea that a court-ordered transfer of
control could be carried out in a way that leaves the registrants
unharmed sounds nice but I don’t know how to implement it. It
seems to me to be wishful thinking, tied to a theoretical construct but
unrelated to reality.<br>
<br>
MM: Let me acquaint you with some business and legal reality then.
Why are the plaintiffs attempting to seize the domain? Because they are
owed $300 million + in damages. How do they propose to recover those
damages? By garnishing an asset which has economic value. Why is the .IR
domain valuable? Because people pay money to rent subdomains under it.
What is the best way to benefit from that economic value? Obviously, by
retaining all the existing customers and collecting their payments as
before, and by growing the number of renters. So the winner of such a
case has every incentive to avoid harming registrants. And a court could
extract commitments to do that from the winner of such a case.<br>
<br>
</blockquote><br>
I'm not sure I agree with you on this. The question of incentives
is likely to be much more complicated than this; I am not at all sure
that the plaintiffs in this case, or in some future case, necessarily are
seeking to seize the domain purely for economic gain; they may be seeking
to wrest control from the current operator for any number of other
reasons. <br><br>
And it's not at all clear that "a court could extract
commitments" from the new owner not to harm existing registrants.
When transferring ownership of some asset from X to Y, courts very rarely
will impose post-transfer conditions on the new owner, for very good
reasons: they don't want to have to define exactly what it means to
"avoid harming current registrants," and they do not want to
get involved in an ongoing series of disputes about whether the new owner
is or is not doing that. <br><br>
David <br><br>
<br>
<blockquote type=cite class=cite cite="">Now, I agree with you that that
sequence of events is highly unlikely _<i>in this case</i>_ for a variety
of reasons – the fact that Iran is unlikely to cooperate with
Israeli-American terrorism victims, or with ICANN; the fact that ICANN or
any other cooperative third party does not possess the data required to
maintain the lower-level zones, etc. <br>
<br>
But there might be another way. The value might also be captured not by
the new owners running the domain, but by inducing Iran’s government to
pay the terrorism victims a certain amount in order for the plaintiffs to
relinquish their court-ordered right to the domain. All fine and good if
Iran agrees to the bargain, but if it does not the decision could indeed
be holding the local registrants hostage to a blackout of their internet
access. I guess one’s evaluation of this depends on one’s assessment
of the equities of paying penalties for state-sponsored terrorism vs.
that of the internet identities of many innocent Iranian internet users.
In this respect I think the court made the right decision.<br>
<br>
The .IR case is more fraught than most because of the international
politics involved. If one thinks of more normal cases – say the delegee
of .uk prooves to be a criminal enterprise and the court (under UK law)
orders a redelegation under controlled circumstances, it seems perfectly
feasible for a court-ordered property transfer to take place without
harming the registrants. In fact, I am sure that court-ordered property
transfers of real estate or other enterprises where customers are
involved take place all the time.<br>
<br>
NB: I am not arguing for the plaintiffs in this case, I am merely
pointing out that your idea that it is _<i>impossible</i>_ for a
court-ordered property transfer to result in anything but harm to the
tenants is a somewhat dogmatic claim. <br>
<br>
Dr. Milton L. Mueller<br>
Professor, School of Public Policy<br>
Georgia Institute of Technology<br>
<br>
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