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]
On Behalf Of Phil Corwin
Sent: Wednesday, August 3, 2016 5:46 PM
To: David Post <david.g.post@gmail.com>
Cc: 'CCWG-Accountability' <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_effect_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-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/D35ACE5F0E9673C085258003005094AE/$file/14-7193.pdf
Paul
Paul Rosenzweig
509 C St. NE
Washington, DC 20002
paul.rosenzweig@redbranchconsulting.com
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com
www.paulrosenzweigesq.com
My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/
No virus found in this message.
Checked by AVG - www.avg.com
Version: 2016.0.7690 / Virus Database: 4627/12704 - Release Date: 07/29/16
_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community@icann.org
https://mm.icann.org/mailman/listinfo/accountability-cross-community
*******************************
David G. Post
Volokh Conspiracy Blog
http://www.washingtonpost.com/people/david-post
Book (ISO Jefferson's Moose) http://tinyurl.com/c327w2n
Music https://soundcloud.com/davidpost-1/sets
Publications & Misc. http://www.ssrn.com/author=537
http://www.davidpost.com
*******************************
No virus found in this message.
Checked by AVG - www.avg.com
Version: 2016.0.7690 / Virus Database: 4627/12704 - Release Date: 07/29/16