[CCWG-Accountability] Regarding Non-profit and public-benefit legal structure

[Edward Morris]

Hi Bruce,


I believe it was deliberately set up as public benefit rather than a member 
organization - to avoid the situation where the members become limited to 
say gTLD registries and registrars and hence it ends up operating primarily 
for the benefit of the domain name registration industry.

Sorry, Bruce, this just isn't accurate. Under the California Corporations 
Code § 5310(a) a Public Benefits Corporation can chose to 1) have or 2) not 
have members. There are California Public Benefit Corporations with members 
and California Public Benefit Corporations without members. All are public 
benefit corporations with the same responsibility to serve the public. The 
differentiation in California law is not between public benefit corporations 
and member organisations, as may be inferred from your comment, but between 
PBC's and Nonprofit Mutual Benefit Corporations which, likewise, may or may 
not have members but are not imbued with the wider social purpose of a PBC. 
The Corporate Flexibility Act of 2011 created a new type of corporate 
vehicle in California, the California Benefit Corporation, which frankly is 
something that if we were operating in an ideal world we might want to 
consider. It is designed for for-profit corporations but requires Board 
members to consider multiple factors (commonly referred to as "people, 
profit and planet") in making decisions and not solely to consider the 
institutions provincial  best interests in decision making processes.

I'm not sure your view of history is completely accurate. Certainly in 
reading Karl Auerbach's archives ( http://www.cavebear.com/cbblog/ ), and 
others, one gets the impression that membership was rejected in an attempt 
to marginalise those who held differing perspectives from the individuals 
perceived to then be running things at ICANN  (One L.A. law firm in 
particular).  I'm not sure anyone would claim the Karl himself, or others 
supporting the membership option, at that time were interested in 
benefitting the domain name industry. Of course, I'm sure there are 
differing views amongst those involved in things at that time, and times 
have changed - just wanted to point out that things aren't as cut and dry as 
some may wish to present.



Any move away from a public-benefit corporation to a membership corporation 


Again, there would be no such move. We would merely change ICANN  from being 
a PBC without members to being a PBC with members, per California 
Corporations Code §5310-§5313. Absolutely no change of corporate type, 
merely an internal change within the statutes governing California PBC's. 
ICANN would  still be a Public Benefit Corporation with the same public 
service commitment, merely one with Members.

- would need to carefully consider how to ensure that the members are 
reflective of the broader Internet community and don't become limited to a 
few members


I am in complete agreement with you here. We need to be creative and 
inclusive in creating membership vehicles. There needs to be a place for 
anyone and everyone in a new membership based ICANN. Lots of politics, lots 
of compromises, but it can be and should be done. We're supposed to be a 
BOTTOM UP multi-stakeholder organization. Properly designed, nothing is more 
bottom up than an inclusive organisational structure where the Board answers 
direct to Members who themselves consist of the diverse, broad and global 
internet community. The other option - some sort of appellate board 
regulating our current Board - is just more top down in a process whose 
legitimacy is based upon it being bottom up.


Kind Regards,

Ed Morris
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