On 05/14/2012 05:38 PM, Carlton Samuels wrote:
Karl: So you're not so happy that in the RT's construct, standing to contest is not granted to other than those groups or classes now enumerated.
I should think the RT's major concern is vested in the term 'enforceable'. Maybe what we need to do is contest a broader/fuller meaning of the term 'enforceable' and petition for unnamned classes to be added and given standing, no?
Yes. The reason that I find third party beneficiary terms in ICANN's contracts to be something to be much needed is that the actual parties to ICANN's contracts often do not act to enforce those terms thus leaving third parties dangling and without recourse. It really is not hard to put a provision into all ICANN contracts that says, in essence, "This contract is intended to benefit all members of the community of internet users and as such it is fully intended that any individual person who is a member of that community has the third party beneficial right to enforce any or all provisions of this contract." (I'm sure that a bit more felicitous language could be brewed up.) Third party beneficiary rights are real contract rights that can be enforced in a court of law by people who aren't parties to the contract itself. The third party beneficiary beneficiary doctrine probably varies from place to place; and it may (and often does) require that it be expressly granted by the contract to some defined group (in our case that group might be everybody - which could be too broad.) But it does seem to me that we who use the domain name system ought to be able to have knobs and levers that we can twist and pull to require that those who have contracts under ICANN actually abide by the terms of those contracts even if ICANN or the other parties sleep on their contract rights. ICANN, however, has a strong dislike of third party beneficiary rights - that comes from their overprotective law firm, Jones Day - but it is something that they could do if the spirit moved 'em - but it needs to be done *while* the contracts are written as it can't automatically be added later. --karl--