[governance] Is ICANN "engaged in commerce" ?

Mon Apr 9 06:29:51 EDT 2007

On 4/9/07, in the middle of a relatively long post related to the
RegisterFly debacle, *yehudakatz at mailinator.com* wrote:
>
> Like it or not, ICANN is engaged in commerce, not charity work, although
> it is a California nonprofit corporation.

This justifies going back to the basic texts.

Many non-English speaking actors, particularly outside the United States,
tend to interpret the term "Corporation" as an equivalent of "Company",
implicitly connecting ICANN with the notion of market and commercial
activity. This misunderstanding is aggravated by the repeated use of the
term "private" when refering to the legal status of the organization (for
instance in the President's Strategic Committee Report). And the fact that
ICANN is actively coordinating a market compounds the feeling that it is
"engaged in commerce".

It is therefore useful to quote extensively Paragraph 3 of ICANN's Articles
of Incorporation:

*ICANN "is a nonprofit public benefit corporation […] organized under the
California Nonprofit Public Benefit Corporation Law for charitable and
public purposes. [It] is organized, and will be operated, exclusively for
charitable, educational and scientific purposes […]".*

This unequivocally underscores the public interest nature and purpose of
ICANN. ICANN is not "engaged in commerce" but is a structure set up to
serve the global public interest. Too many people seem to forget it.

Best

Bertrand

On 4/9/07, yehudakatz at mailinator.com <yehudakatz at mailinator.com> wrote:
>
> Judging from this mail-list response, no members have had experience
> first-hand with RegisterFly, which means there is a lack of sufficient
> numbers to form a 'CLASS' by this body (IGC). What was of interest in Mr.
> Hanson's article, was the statement which suggests that ICANN was moving
> toward an 'Independent' International Model: such as the Red Cross and The
> International Olympic Community, to take refuge by Flight (flight from legal
> prosecution). I wonder under which Court of International Law could a
> similar Suit be brought by Plaintiffs who domicile outside of the US
> Jurisdiction? - Article Re: In the wake of RegisterFly, is ICANN taking
> flight?
> http://www.theregister.co.uk/2007/04/05/icann_registerfly_litigation Only
> the paranoid survive By Burke Hansen in San Francisco In the aftermath of
> the ICANN meeting in Lisbon, the RegisterFly disaster continues to inspire
> both litigation and paranoia. Those connecting the dots are convinced that
> an ICANN report debated at the Lisbon meetings exploring the possibility of
> changing ICANN to an international organization along the lines of the
> International Red Cross is an attempt by ICANN to slither out of this whole
> mess. A plaintiff in North Carolina has started a class action against
> RegisterFly, Enom, and ICANN over her ruined business; ICANN is suing
> RegisterFly to force it to turn over the authcodes to enable a bulk transfer
> of domains; and RegisterFly is demanding arbitration as provided for in its
> Registrar Accreditation Agreement (RAA). Other plaintiffs wait in the wings.
> A change of character for ICANN would provide a gloss of independence from
> the smothering bosom of the American Department of Commerce (DOC), as well
> as potential protection from American litigation. It would also comport with
> ICANN's stated goal of becoming a truly international organization
> reflective of the international reach of the internet itself. Of course, it
> begs the question: just what does ICANN have in common with the Red Cross?
> And why would ICANN need a structure that virtually eliminates
> accountability when more accountability is what the ICANN stakeholders keep
> demanding? ICANN has made great strides in providing improved access and
> clarity to its website recently, and it would be unfortunate if ICANN has
> adopted a one step forward, two steps back approach to its problems. ICANN
> currently is a nonprofit corporation based in Marina Del Ray, California.
> Say what you will about the litigious nature of American society, but
> American-style litigation keeps us all on our toes, including ICANN. Why
> would ICANN need Red Cross-style international legal protections when it's
> not out saving refugees and inoculating babies like the Red Cross? The
> international organization that ICANN does have something in common with is
> one famous for its opaqueness and arrogant lack of accountability, the
> International Olympic Committee (IOC). ICANN's not saving the world. Like it
> or not, ICANN is engaged in commerce, not charity work, although it is a
> California nonprofit corporation. The IOC, too, is engaged in commerce,
> which is marketing the Olympics and extorting stadium facilities out of
> local communities. It would be unfortunate if ICANN were to take advantage
> of the RegisterFly mess as an excuse to lock itself away from public opinion
> the way the IOC has. Of course, ICANN is already named in the RegisterFly
> class action, and no midstream change in corporate structure will get them
> out of that lawsuit. It would, however, make it more difficult for similar
> lawsuits to proceed in the future. A move to Switzerland, say, would be even
> more frustrating. Considering the fact that ICANN did not drop the hammer on
> RegisterFly until after the plaintiff's attorneys dropped the hammer on
> ICANN, the ICANN community might think twice about letting ICANN off the
> hook.(r) Burke Hansen, Attorney at large, heads a San Francisco law office. --
>
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-- 
____________________
Bertrand de La Chapelle
Délégué Spécial pour la Société de l'Information / Special Envoy for the
Information Society
Ministère des Affaires Etrangères / French Ministry of Foreign Affairs
Tel : +33 (0)6 11 88 33 32

"Le plus beau métier des hommes, c'est d'unir les hommes" Antoine de Saint
Exupéry
("there is no better mission for humans than uniting humans")
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