[governance] Big Porn v. Big Web Ruling Could Spell Trouble for ICANN / was Re: new gTLDs

Tue Aug 21 12:35:29 EDT 2012

To my knowledge, ICANN has never claimed (at least not in court) that it isn’t subject to U.S. law or subject to review by U.S. courts.  Certainly it didn’t so here, its argument was a more nuanced argument that U.S. antitrust law did not apply because ICANN was engaging in a noncommercial activity (and antitrust law does not apply to such activities).  The court disagreed with ICANN, but that’s different from a broad claim that ICANN is exempt from U.S. law.

But let’s use the Wayback Machine to go back in time a decade.  During the only time when ICANN had elected Directors, one of the elected directors was Karl Auerbach.  Karl attempted to assert his absolute rights as a Director of a California nonprofit public benefit corporation (which is what ICANN is), but ICANN rebuffed him at every step.  So, eventually, Karl hired a lawyer (me) to sue ICANN.  The short story is that we won.  The relevant part to your post is that, even back then, ICANN did not claim to be exempt from either U.S. or California law.  It’s defense of the lawsuit was based on either grounds.

That ICANN is subject to U.S. judicial review is neither new nor controversial.

--

James S. Tyre

Law Offices of James S. Tyre

10736 Jefferson Blvd., #512

Culver City, CA 90230-4969

310-839-4114/310-839-4602(fax)

jstyre at jstyre.com

Policy Fellow, Electronic Frontier Foundation

https://www.eff.org

From: governance-request at lists.igcaucus.org [mailto:governance-request at lists.igcaucus.org] On Behalf Of parminder
Sent: Monday, August 20, 2012 11:45 PM
To: governance at lists.igcaucus.org
Subject: Re: [governance] Big Porn v. Big Web Ruling Could Spell Trouble for ICANN / was Re: new gTLDs

This is a very important, and possibly a historic, news, which exposing the meaninglessness of ICANN's claim of independence from the US establishment.

A US court has given the go ahead to the anti-trust filing against ICANN decision instituting the .xxx gtld . There is every likelihood that this decision of ICANN may be found as going against US laws. What would ICANN do in that case? At the very least, it is quite probable that ICANN may be asked to put certain new provisions in its registry agreement regarding .xxx, as has been sought by the plaintiff. What would be ICANN's response in that case?

Remember that each of the new gltds will be open to similar review by US courts.

ICANN has lost a major battle regarding its claimed status as a global organisation responsible only to the global community, a claim which in any case had feet of clay....

And with it, also those who defend ICANN on the above ground have lost a major battle. I hope such defendants on the list will respond to this news and the paradox it poses.

It is now clear that ICANN is subject to US judicial review (which of course it always was), and that its decisions can be struck down by US courts, in which case, ICANN has just no option other than to reverse its decisions. For those who have expressed lack of clarity about the meaning of oversight, this is oversight. Well, to me more precise, this is judicial review which is a part of overall oversight.

parminder 

On Tuesday 21 August 2012 06:37 AM, Robert Pollard wrote:

Salanieta

Thanks for these interesting links. I'm re-posting your message with a new subject line, as the issue would seem to deserve a separate thread from "new gTLDs".

Although the suit may have some implications for new gTLDs, many of the allegations re antitrust issues re the .xxx tld are based on the the particular history of the establishment of .xxx and the actions of ICM Registry, LLC in obtaining control of it

Robert 

On Mon, Aug 20, 2012 at 6:44 PM, Salanieta T. Tamanikaiwaimaro <salanieta.tamanikaiwaimaro at gmail.com> wrote:

http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202567792748

http://pdfserver.amlaw.com/tal/icann.pdf  

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