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

Milton L Mueller mueller at syr.edu
Thu Aug 23 06:04:48 EDT 2012 

Actually, Parminder you are confusing different things.

If there was someone willing and able to challenge ICANN's decision to award .xxx on antitrust grounds in Europe, or in India, and ICM Registry were domiciled in Europe or India, respectively, then an adverse decision would make European or Indian law "applicable" to an ICANN decision.

This is a problem, not with the US, but with nation-states' territorial jursidcition exerting control over the internet.

Let me say that I think this antitrust challenge has no merit and will not go anywhere.

From: governance-request at lists.igcaucus.org [mailto:governance-request at lists.igcaucus.org] On Behalf Of parminder
Sent: Tuesday, August 21, 2012 3:36 AM
To: Salanieta T. Tamanikaiwaimaro
Cc: governance at lists.igcaucus.org
Subject: Re: [governance] Big Porn v. Big Web Ruling Could Spell Trouble for ICANN / was Re: new gTLDs


Sala,

You are getting me wrong... I am not faulting ICANN's decision.... I have no view on this particular decision of ICANN to have a .xxx gtld. I am speaking about applicability of the jurisdiction of US courts on all ICANN decisions. And since US courts apply US law, it is the applicability of US laws over all ICANN decisions, which is also called 'oversight'. And I dont like anything that calls itself a global system/ infrastructure to be subject to laws that I do not have an opportunity to participate in making. Simple democratic principle. No legislation without representation.......

The argument that US has strongest anti-trust laws is quite beside the point.... But then if you have to pursue that line, US has some of the worst IP laws, but still when an IP issue vis a vis any ICANN decision comes up for judicial review, it will still be the same US courts and US law, and not Brazilian courts and law.....

Dont you think this is undemocratic, and unjustified.... parminder

On Tuesday 21 August 2012 12:53 PM, Salanieta T. Tamanikaiwaimaro wrote:
My personal views are if anything I would say that the situation proves that the system works. It means that decisions can be subject to scrutiny. Having personally seen voluntary scrutiny take place within ICANN and now seeing decisions being checked by the legal system it shows that the organisation is answerable.

If anything, the US is probably the strictest enforcer of antitrust laws in the world and standards for corporate governance rate as among the highest if not the highest. This should inspire confidence that decisions can be checked. For ICANN it means an internal self evaluation and ongoing assessment to ensure that they perform their obligations to the highest standards.

Organisations all over the world, governments included continue to learn, grow and evolve that is part of life. You pick up and learn and move on. It does not mean that all your actions are going to be flawless - show me one perfect organisation and I will show you Utopia. Of course that does not mean that we do not strive for excellent
 standards.

On Tue, Aug 21, 2012 at 6:45 PM, parminder <parminder at itforchange.net<mailto:parminder at itforchange.net>> wrote:

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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