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

Sat Jan 28 21:43:11 UTC 2017

That makes sense.  My concern however with a discussion of “potential
impact” is that it then becomes a bit subjective.  What is the “impact” of
DotAfrica?  Is it a “small bump in the road” or a “major hurdle” or
somewhere in between?  How you characterize it depends I think on where you
sit.

Might I suggest a slight modification – instead break this down in a
slightly different way that restricts itself to factual development:

1.	What relief was requested by the plaintiff from ICANN (or ICANN from
defendant if ICANN was a plaintiff)?
2.	What relief, if any, was granted to the plaintiff?

The first of those gives us a good measure of “potential impact” by
identifying what was asked for in the actual case – and allows us to avoid
speculating about other collateral impact.  The second, of course, defines
actual impact since it is the relief granted that has the impact.

And then, to capture Milton’s point, but in an objective way (since
frivolity is also in the eye of the beholder), we might add one other
question:

3.	Did the Court in its decision offer any conclusion as to the lack of
merit/frivolity of the plaintiff’s claim?   

In other words, here I want to ask not what I thought of the case, but what
the decision maker did – did the Judge, for example, call it frivolous?  Did
the arbiter award costs to ICANN because the claim was “baseless”?  That
sort of thing

Paul

Paul Rosenzweig

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From: Mathieu Weill [mailto:mathieu.weill at afnic.fr] 
Sent: Friday, January 27, 2017 7:34 PM
To: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com>; Mueller,
Milton L <milton at gatech.edu>; ws2-jurisdiction at icann.org
Subject: RE: [Ws2-jurisdiction] Case summary - 2 drafts for your review

Thanks for raising this point Paul, 

This is indeed a question that I faced trying this out. We need an approach
that is consistent across all cases, and as you point out, even when cases
may not end up being decided against ICANN, there can be an effect. 

So my suggestion is to assess :

*	Whether there was actually an impact
*	Whether there would have been an impact if the case had been
decided, or would be decided in the future, against ICANN (potential impact)

It’s going to be another phase of our work to determine which lessons we
draw from the cases, and whether we believe it’s appropriate to take these
potential impacts into account within the work of our group. If, by then, we
want to exclude the “potential impact” sections, we’ll do so, but at the
data collection level, when we fill the form, I think we should include this
piece of information. 

Best

Mathieu

De : Paul Rosenzweig [mailto:paul.rosenzweig at redbranchconsulting.com] 
Envoyé : vendredi 27 janvier 2017 17:01
À : 'Mueller, Milton L'; 'Mathieu Weill'; ws2-jurisdiction at icann.org
<mailto:ws2-jurisdiction at icann.org> 
Objet : RE: [Ws2-jurisdiction] Case summary - 2 drafts for your review

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

 <mailto:paul.rosenzweig at redbranchconsulting.com>
paul.rosenzweig at redbranchconsulting.com

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M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

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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
<mailto:paul.rosenzweig at redbranchconsulting.com> >; 'Mathieu Weill'
<mathieu.weill at afnic.fr <mailto:mathieu.weill at afnic.fr> >;
ws2-jurisdiction at icann.org <mailto: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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