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
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Diego R. Canabarro
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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:
> -rules/
>
> Corwin Sent: Wednesday, August 3, 2016 5:46 PM
> 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
>
> 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
> 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:
> 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:
> 3005094AE/$file/14-7193.pdf
>
> Paul
>
> Paul Rosenzweig
> 509 C St. NE
> Washington, DC 20002
> M: +1 (202) 329-9650
> VOIP: +1 (202) 738-1739
>
>
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