[Ws2-jurisdiction] Case summary - 2 drafts for your review

[Paul Rosenzweig]

I agree with Milton.  By contrast, for example, the DotAfrica case is
relevant as it reflects an instance where the legal system did have an
effect on ICANN's actions (that's a statement of fact - not an assertion
that the effect was good or bad).  The question in the end will be what
those effects are; whether they are adverse; and if changing to another
jurisdiction would make the situation worse or better

 

Paul

 

Paul Rosenzweig

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From: Mueller, Milton L [mailto:milton at gatech.edu] 
Sent: Friday, January 27, 2017 10:36 AM
To: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com>; 'Mathieu
Weill' <mathieu.weill at afnic.fr>; ws2-jurisdiction at icann.org
Subject: RE: [Ws2-jurisdiction] Case summary - 2 drafts for your review

 

I have to agree mostly with Paul on this:

 

In the "Effect on our Work" section I wonder at how you handled it.  For me,
the answer in the Arizona case would be "none" since the suit was dismissed
early.  To be sure you write of its potential effect - which had it
succceded would have been significant.  But that gives too much credit to
the filing of a suit doesn't it?  Shouldn't our inquiry be whether or not
the exisiting legal system adequately protects our work from non-meritorious
interference.  And so, shouldn't the Arizona case be a good sign that, at
least in this case, the court reached a result that had no impact?

 

That case was a desperation delaying act that had no real legal basis, which
the court quickly recognized. Apparently the plaintiffs realized it was
groundless too  - which is why they abandoned the case after failing to get
the injunction. In others words, this was an attempt to use legal procedure
to delay an outcome until the political situation changed, not a challenge
based on the specific characteristics of US or Calif law. Unless one can
argue that the U.S. jurisdiction is uniquely prone to these kinds of tricks
working (and here I leave it to people with more comparative law experience
than me), I don't think the case is relevant. 

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