[CWG-Stewardship] Legal cost reality

Milton L Mueller mueller at syr.edu
Sat Jun 27 18:40:29 UTC 2015

Thanks for this great message, Chuck. My responses in line below

I don't disagree with anything Jonathan says but as we try to finish the work, including implementation, to effectively manage costs I believe the following would be helpful to keep in mind:

*        The ICANN General Counsel's office and its primary outside Council firm Jones Day has demonstrated an extreme bias for protecting the corporation at all costs even when that may conflict with the public interest.  In my opinion, that is the primary source of the mistrust in the community and that is why independent legal advice was needed and I believe will be needed going forward.

MM: I reluctantly have to agree with Chuck. The reluctance comes from the fact that it would definitely be more economically efficient to rely on ICANN legal to draft the appropriate bylaw changes, and then have the CWG, advised by Sidley, review them. But we can't do that, for the reasons Chuck enumerates.

I would differ from Chuck a little in that I would not say the problem is "mistrust" per se. The real problem is a direct and obvious conflict of interest between ICANN, Inc. (for whom ICANN legal is the agent) and the interests of the community as reflected in the enhanced accountability process. I think ICANN legal and Jones Day are highly trustworthy agents for their corporate client; they have proven time and again that they will fight for its interests. The problem is that in this case, ICANN's interests are not aligned with those of us demanding more accountability. In other words, you do not have to think ICANN legal, or Jones Day, are "untrustworthy" in some ethical sense to believe that they should not be holding the pen on the required bylaw changes.

*        In cases where bias may not be as big a problem (e.g., the IANA trademark) we should compare what it costs to use expertise in the General Counsel's office and ICANN's existing outside Counsel relationships to what it would cost to use Sidley Austin.

MM: Actually, I think this is an area where bias could be a serious problem. Continued ICANN control of the trademarks could be used to constrain or even nullify the right of the community to fire ICANN's affiliate as IANA functions operator and hire someone else. Furthermore, control of the trademark would give ICANN additional leverage over the numbers and protocol communities, and we already know that the numbers community strongly objects to this.

In this case, however, I do not think we are dealing with a problem that requires a lot of legal work; the main thing we have to do is decide what entity that is not tied to a specific IFO can hold the trademark. Once that is decided, the process of transferring the TM to another owner (neither ICANN nor PTI) I'll let the TM lawyers among us decide what is the best way to do it.

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