[CCWG-ACCT] Weinstein v. Iran

Thu Aug 4 18:15:56 UTC 2016

As some of you know we've been doing some serious research on this topic and here is our take on the court decision:
http://www.internetgovernance.org/2016/08/04/plaintiffs-cant-seize-ir-court-rules/

From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Phil Corwin
Sent: Wednesday, August 3, 2016 5:46 PM
To: David Post <david.g.post at gmail.com>
Cc: 'CCWG-Accountability' <accountability-cross-community at icann.org>
Subject: Re: [CCWG-ACCT] Weinstein v. Iran

Paul:

Greg Shatan raised the same quibble in a comment posted at the website, and I replied as follows-

Greg:
Thanks for the positive review of a hastily composed article. You are correct that the court expressed an assumption that a ccTLD constituted an attachable property interest, but did not decide that it was. While that assumption might be cited in a future case involving TLD matters it certainly has little to no weight. Further, courts might well decide that a nation's interest in its ccTLD, which is independent of any contractual relationship with ICANN, differentiates ccTLDs from gTLDs, which are dependent on being awarded such a contract by ICANN and can be lost if the registry operator commits a material breach of the registry agreement. Finally, whether or not ccTLDs or gTLDs constitute some type of property interest is a separate question from whether second level domains constitute a form of property.
So yes, it was a very interesting outcome but in no way determinative on the TLD as property issue.
Best, Philip

You are correct that the Court took no position one way or another on whether a TLD constitutes property, and leaves that issue for another case at a later date.

Very best, Philip

Philip S. Corwin, Founding Principal
Virtualaw LLC
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Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

From: David Post [mailto:david.g.post at gmail.com]
Sent: Wednesday, August 03, 2016 5:37 PM
To: Phil Corwin
Cc: Paul Rosenzweig; 'CCWG-Accountability'
Subject: Re: [CCWG-ACCT] Weinstein v. Iran

At 09:37 AM 8/3/2016, Phil Corwin wrote:
Content-Language: en-US
Content-Type: multipart/alternative;
         boundary="_000_8E84A14FB84B8141B0E4713BAFF5B84E21188D2AExchangesierrac_"

FYI, yesterday I published a short article on the decision which can be found at http://www.circleid.com/posts/20160802_court_of_appeals_avoids_doomsday_effect_in_iran_cctld_decision/

One small-ish quibble:  you write:

"In reaching its decision, the Court opined (but did not decide) that a top level domain constitutes an attachable property interest."

Not sure that's strictly correct.  I think "opined" implies that the court expressed an opinion about the matter (without actually deciding it).  But I don't think it did express an opinion one way or the other; it simply said that it would "assume" that the ccTLDs constitute property, without really considering the matter, because it would have no impact on the outcome.
I know it's a nit ... but the question of whether TLDs are "property" is sure to come up again, and I don't think this opinion is any support at all - even weak support - for the notion that they are.
David

In it I state:
In my view, this result avoids the possibility of a major erosion of confidence and participation in ICANN by ccTLD operators by making clear that a respected Court of Appeals in the U.S. possesses adequate technical understanding of the DNS to avoid a legal decision that could lead to technical and political instability  many nations would not wish to continue in a DNS coordinated by a U.S. non-profit corporation if it could be ordered by a U.S. court to transfer control of any nation's ccTLD. This decision will also hopefully tamp down calls by some parties for ICANN's place of incorporation to be moved outside of the U.S. by demonstrating that ICANN's jurisdiction does not create a threat to other nation's ccTLDs. Remaining jurisdiction issues will be addressed in work stream 2 of ICANN's ongoing accountability process.

Best regards to all

Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/Cell

Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

From: accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org> [ mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Paul Rosenzweig
Sent: Wednesday, August 03, 2016 9:28 AM
To: 'CCWG-Accountability'
Subject: [CCWG-ACCT] Weinstein v. Iran

For those following along in the effort to attach the .ir (and other) ccTLDs, the appellate court issued an opinion yesterday affirming the decision of the court below rejecting the effort to attach the domain (albeit on different grounds).  Here is a link to the opinion: https://www.cadc.uscourts.gov/internet/opinions.nsf/D35ACE5F0E9673C085258003005094AE/$file/14-7193.pdf

Paul

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