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

Thu Aug 23 02:52:58 EDT 2012

Parminder,

I just erased the third or fourth version of a brief, punctual reply to your counterfactual characterization of your counterparts. Suffice to say as Wolfgang Pauli did "it isn't even wrong."

Maybe you'll prefer to answer David Conrad's clear, direct question - you only need a URL.

Alejandro Pisanty

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________________________________
Desde: governance-request at lists.igcaucus.org [governance-request at lists.igcaucus.org] en nombre de parminder [parminder at itforchange.net]
Enviado el: jueves, 23 de agosto de 2012 01:03
Hasta: governance at lists.igcaucus.org
Asunto: Re: [governance] Big Porn v. Big Web Ruling Could Spell Trouble for ICANN / was Re: new gTLDs

James

Yes, ICANN has never claimed it is not subject to US law. It will be ridiculous to do so for any responsible organisation based in the US. Problem is, ICANN apologists claim so, especially when caught on the wrong foot in global discussions - like on this list - faced with legitimate criticism of how a global infrastructure can be managed as per legal and executive authority of one country.

They first claim that ICANN is de jure independent, but when pushed with facts, they try to say, ok, well, at least, it is de facto, independent of US laws. Now, this case, with an outcome that could go either way, shows that it is not even de facto independent. So, I was just asking those ICANN - US relationship apologists, what have they to say now. But they seme to ducking the question right now :).

parminder

On Tuesday 21 August 2012 10:05 PM, James S. Tyre wrote:
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<mailto: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> [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<mailto: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<mailto: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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