I think the arrangements you describe would be sufficient to protect the third party interests of registrants under a TLD. More could also be done to ensure that in any such delegation, the new owner doesn't impair the property and service interests of SLD registrants. What I don't understand is the court's feeling that ICANN's interest in the stability and interoperability of the DNS would be impaired by a legally mandated redelegation. I think that argument is just plain false. A redelegation does not create a compatibility issue. I don't think the court understands what ICANN does and was overly swayed by hysterical USG amicus brief that claimed that the whole "model of internet governance" would be destroyed by a pro-plaintiff decision. --MM From: Diego R. Canabarro [mailto:diegocanabarro@nic.br] Sent: Thursday, August 4, 2016 2:30 PM To: accountability-cross-community@icann.org Cc: Mueller, Milton L <milton@gatech.edu>; Phil Corwin <psc@vlaw-dc.com>; David Post <david.g.post@gmail.com> Subject: Re: [CCWG-ACCT] Weinstein v. Iran Excellent post, Milton. Do you think the ruling would have been different in case ICANN had any sort of direct access to the database (e.g.: through a escrow service provider)? Put it differently: in case ICANN had access to a full replication of the ccTLD database and could keep things running smoothly, do you the ruling should be different? Best Diego -- Diego R. Canabarro Equipe de Assessoria do CGI.br / CGI.br Advisory Team <http://cgi.br/> Núcleo de Informação e Coordenação do Ponto BR - NIC.br <http://nic.br/> diegocanabarro@nic.br<mailto:diegocanabarro@nic.br> +55 11 5509 4116 | 5509 1855 PGP Key 007A14F5 Em qui 04 ago 2016, às 18:15:56, Mueller, Milton L escreveu:
As some of you know we've been doing some serious research on this topic and
here is our take on the court decision:
http://www.internetgovernance.org/2016/08/04/plaintiffs-cant-seize-ir-court
-rules/
From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>
[mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Phil
Corwin Sent: Wednesday, August 3, 2016 5:46 PM
To: David Post <david.g.post@gmail.com<mailto:david.g.post@gmail.com>>
Cc: 'CCWG-Accountability' <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>
Subject: Re: [CCWG-ACCT] Weinstein v. Iran
Paul:
Greg Shatan raised the same quibble in a comment posted at the website, and
I replied as follows-
Greg:
Thanks for the positive review of a hastily composed article. You are
correct that the court expressed an assumption that a ccTLD constituted an
attachable property interest, but did not decide that it was. While that
assumption might be cited in a future case involving TLD matters it
certainly has little to no weight. Further, courts might well decide that a
nation's interest in its ccTLD, which is independent of any contractual
relationship with ICANN, differentiates ccTLDs from gTLDs, which are
dependent on being awarded such a contract by ICANN and can be lost if the
registry operator commits a material breach of the registry agreement.
Finally, whether or not ccTLDs or gTLDs constitute some type of property
interest is a separate question from whether second level domains
constitute a form of property. So yes, it was a very interesting outcome
but in no way determinative on the TLD as property issue. Best, Philip
You are correct that the Court took no position one way or another on
whether a TLD constitutes property, and leaves that issue for another case
at a later date.
Very best, Philip
Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/Cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
From: David Post [mailto:david.g.post@gmail.com]
Sent: Wednesday, August 03, 2016 5:37 PM
To: Phil Corwin
Cc: Paul Rosenzweig; 'CCWG-Accountability'
Subject: Re: [CCWG-ACCT] Weinstein v. Iran
At 09:37 AM 8/3/2016, Phil Corwin wrote:
Content-Language: en-US
Content-Type: multipart/alternative;
boundary="_000_8E84A14FB84B8141B0E4713BAFF5B84E21188D2AExchangesierrac_"
FYI, yesterday I published a short article on the decision which can be
found at
http://www.circleid.com/posts/20160802_court_of_appeals_avoids_doomsday_eff
ect_in_iran_cctld_decision/
One small-ish quibble: you write:
"In reaching its decision, the Court opined (but did not decide) that a top
level domain constitutes an attachable property interest."
Not sure that's strictly correct. I think "opined" implies that the court
expressed an opinion about the matter (without actually deciding it). But
I don't think it did express an opinion one way or the other; it simply
said that it would "assume" that the ccTLDs constitute property, without
really considering the matter, because it would have no impact on the
outcome. I know it's a nit ... but the question of whether TLDs are
"property" is sure to come up again, and I don't think this opinion is any
support at all - even weak support - for the notion that they are. David
In it I state:
In my view, this result avoids the possibility of a major erosion of
confidence and participation in ICANN by ccTLD operators by making clear
that a respected Court of Appeals in the U.S. possesses adequate technical
understanding of the DNS to avoid a legal decision that could lead to
technical and political instability many nations would not wish to
continue in a DNS coordinated by a U.S. non-profit corporation if it could
be ordered by a U.S. court to transfer control of any nation's ccTLD. This
decision will also hopefully tamp down calls by some parties for ICANN's
place of incorporation to be moved outside of the U.S. by demonstrating
that ICANN's jurisdiction does not create a threat to other nation's
ccTLDs. Remaining jurisdiction issues will be addressed in work stream 2 of
ICANN's ongoing accountability process.
Best regards to all
Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/Cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
From:
accountability-cross-community-bounces@icann.org<mailto:accountability-cros<mailto:accountability-cross-community-bounces@icann.org%3cmailto:accountability-cros>
s-community-bounces@icann.org<mailto:s-community-bounces@icann.org>> [
mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Paul
Rosenzweig Sent: Wednesday, August 03, 2016 9:28 AM
To: 'CCWG-Accountability'
Subject: [CCWG-ACCT] Weinstein v. Iran
For those following along in the effort to attach the .ir (and other)
ccTLDs, the appellate court issued an opinion yesterday affirming the
decision of the court below rejecting the effort to attach the domain
(albeit on different grounds). Here is a link to the opinion:
https://www.cadc.uscourts.gov/internet/opinions.nsf/D35ACE5F0E9673C08525800
3005094AE/$file/14-7193.pdf
Paul
Paul Rosenzweig
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Washington, DC 20002
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