Lise,

If this is the premise behind your thinking:

 

Likely that ICANN Legal input would be similar to the response provided by the ICANN Board, which is likely not acceptable by the other communities. However, if this input is provided by an independent party, such as Sidley, it might be received differently.

 

…I can tell you that it will not be received differently. The key point that the numbers community and many of us here in the names community have been making is that a specific IANA Functions Operator should not be in control of the TM and domain because that undermines if not destroys the ability to switch IFOs when needed. This is an economic rather than a legal fact (please check the voluminous scientific literature on switching costs) and it is hard to conceive of how legal advice is going to change this.

 

The position of ICANN’s board is a familiar one: it is “trust us.” If “trust us” were an acceptable answer to the many accountability issues we are facing, we could all take a nice rest and avoid a lot of the institutional design and reform problems we are trying to solve. Here again, I don’t see how expensive legal advice is going to alter the nature of or reception given to ICANN’s board response. It is not about trust; it is about robust and well-designed institutional arrangements.

 

I agree with Greg that this CWG should not be pressured to “go along to get along,” but fundamentally, these are issues for the CWG to debate and resolve as a matter of policy – there is no room for legal advice unless you know what you want to do with the TMs.

People who think ICANN should control the TMs and domain need to tell the rest of the community why that is not an obstacle to separability and what happens when there is a change of IFOs.

That is not fundamentally a legal question. Once you have a specific idea as to how to reconcile separability and control of the TMs and domain by ICANN, then and only then can you can ask for legal advice about whether that idea is feasible. The idea that the lawyers are going to be able to resolve a very critical policy debate is just wrong.

 

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