[governance] Re: FW: [discuss] Some more legal tangles for ICANN

[McTim]

I don't think Nigel's comments are "contra" to what I am saying.

My point is that I do not think that ICANN will take the position that
.ir is the "intangible property" of the Islamic Republic of Iran.

ICANN doesn't take monies from Iran, ICANN doesn't owe Iran any monies.

Read the Writ, it is quite simple for ICANN to answer.

"No, we don't hold any of their property"

"No, we don't owe them any money"

While governments do claim sovereignty over their ccTLDs, they are
held in trust by the folks they are delegated to, not "owned".

I would guess we will see ICANN's answer on their "correspondence" page soon.




On Sun, Jun 29, 2014 at 2:31 AM, michael gurstein <gurstein at gmail.com> wrote:
> This again from the other list and again contra McTim...
>
> M
>
> -----Original Message-----
> From: discuss-bounces at 1net.org [mailto:discuss-bounces at 1net.org] On Behalf
> Of Nigel Roberts
> Sent: Saturday, June 28, 2014 11:27 AM
> To: discuss at 1net.org
> Subject: Re: [discuss] Some more legal tangles for ICANN
>
> The District Court does, from the news reports, appear to have been
> persuaded of this particular point of law.
>
> But as Bill correctly, and helpfully points out, a copy of the actual
> reasoned decision would be extremely helpful.
>
> We could, for example, subject it to a proper legal analysis in order to
> determine the implication which might flow from it.  For example whether it
> is ratio or obiter (not that for our purposes, it makes much difference ..
> since it is the persuasive effect of this which is of most legal interest).
>
> A top-level domain name, is simply a domain name that is at the top level of
> the DNS.
>
> Domain names are described in RFC 920 and RFC 1591. These two documents
> makes it clear, that requirements on higher level domains, apply recursively
> throughout the DNS. A TLD is simply a special case.
>
> A domain is an area of responsibility in the DNS.
>
> It means control over a particular sub-tree to an infinite level (or to be
> more accurate, to whatever level the DNS software practically supports).
> Domain, demesne and bailiwick are closely related terms and an internet
> domain is a close analogue thereof.
>
> A domain name is simply the name of a domain. The names of such internet
> domains may only consist of certain letters, numbers and hyphens.
>
> The registration of a domain name creates a bundle of rights that belong to
> the registrant. Registration of a domain name may also reassert other,
> already existing rights, such as intellectual property rights.
>
> Domain name registration rights are thus usually, and largely but not
> exclusively, defined by contracts between the domain registrant and the
> owner of the domain immediately above them (which in most circumstances is a
> "domain name registry". For example, in English law (which is somewhat
> related to US law) the registrant of microsoft.uk owns the bundle of rights
> created by contracts between itself and the Registry
> (Nominet) and its Registrar (if any).
>
> All these bundle of rights in respect of MICROSOFT.UK are, are owned by the
> well known software company.
>
> They are therefore an asset which can be attached by the liquidator or
> adminstrator, in the unlikely event that Microsoft should become insolvent.
>
> Therefore there is no doubt in my mind that the bundle of rights created on
> registration of domain names are assets, in English law. Another word for
> this is 'intangible property'.
>
>> PS: As for your claim of absence of any nexus between cctlds and ICANN
>> reg delegation, de-delgation or re-delegation, that surprises me, but
>> I have no desire to take up that discussion.
>>
>
> You may not avoid this, simply by saying you have no desire to discuss it.
>
> In public law, the fundamental question is "whence derives the legal power".
>
> So one needs to consider
>
> 1. If ICANN has statutory (e.g. regulatory, licencing or taxing) authority
> over third parties, where is that statute?
>
> 2. If ICANN has contractual agreements where it agrees to (for example) give
> a licence to run .IR to the Iranian Government,whether in return for licence
> payments, or otherwise, let's see it!
>
> 3. If the "IR" domain name isn't a US domain name, where is its actual
> situs, and on what legal theory is that situs to be determined. Isn't there
> a Canadian decision on this?
>
> And Wolfgang and Chris (thank you!) are very on point here. The ccNSO has
> recently completed six years of patient work into Delegation and
> Redelegation of ccTLDS, and a Framework for Interpretation of existing
> policy that no doubt would helpfully inform any court considering such
> matters.
>
>
> _______________________________________________
> discuss mailing list
> discuss at 1net.org
> http://1net-mail.1net.org/mailman/listinfo/discuss
>



-- 
Cheers,

McTim
"A name indicates what we seek. An address indicates where it is. A
route indicates how we get there."  Jon Postel

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