[CCWG-ACCT] Weinstein v. Iran
Mueller, Milton L
milton at gatech.edu
Thu Aug 4 19:02:28 UTC 2016
I think the arrangements you describe would be sufficient to protect the third party interests of registrants under a TLD. More could also be done to ensure that in any such delegation, the new owner doesn't impair the property and service interests of SLD registrants.
What I don't understand is the court's feeling that ICANN's interest in the stability and interoperability of the DNS would be impaired by a legally mandated redelegation. I think that argument is just plain false. A redelegation does not create a compatibility issue. I don't think the court understands what ICANN does and was overly swayed by hysterical USG amicus brief that claimed that the whole "model of internet governance" would be destroyed by a pro-plaintiff decision.
--MM
From: Diego R. Canabarro [mailto:diegocanabarro at nic.br]
Sent: Thursday, August 4, 2016 2:30 PM
To: accountability-cross-community at icann.org
Cc: Mueller, Milton L <milton at gatech.edu>; Phil Corwin <psc at vlaw-dc.com>; David Post <david.g.post at gmail.com>
Subject: Re: [CCWG-ACCT] Weinstein v. Iran
Excellent post, Milton. Do you think the ruling would have been different in case ICANN had any sort of direct access to the database (e.g.: through a escrow service provider)? Put it differently: in case ICANN had access to a full replication of the ccTLD database and could keep things running smoothly, do you the ruling should be different?
Best
Diego
--
Diego R. Canabarro
Equipe de Assessoria do CGI.br / CGI.br Advisory Team <http://cgi.br/>
Núcleo de Informação e Coordenação do Ponto BR - NIC.br <http://nic.br/>
diegocanabarro at nic.br<mailto:diegocanabarro at nic.br>
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Em qui 04 ago 2016, às 18:15:56, Mueller, Milton L escreveu:
> 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>
> [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<mailto:david.g.post at gmail.com>>
> Cc: 'CCWG-Accountability' <accountability-cross-community at icann.org<mailto: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
> 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: 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_eff
> ect_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-cros<mailto:accountability-cross-community-bounces at icann.org%3cmailto:accountability-cros>
> s-community-bounces at icann.org<mailto:s-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/D35ACE5F0E9673C08525800
> 3005094AE/$file/14-7193.pdf
>
> Paul
>
> Paul Rosenzweig
> 509 C St. NE
> Washington, DC 20002
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