From: na-discuss-bounces@atlarge-lists.icann.org on behalf of Danny Younger
Sent: Sat 5/19/2007 8:44 AM
To: Luc Faubert; Wendy Seltzer; NA Discuss
Subject: Re: [NA-Discuss] Legal hooks in the MOU

I support Wendy's position.  Until such time as
At-Large directors are seated on the ICANN Board (an
act that would honor the spirit of the White Paper
upon which ICANN was built), I don't intend to give an
inch on this point. 

Had at-Large Directors been on the Board, do any of
you think that we would have gone the last five years
without any registrant data escrow services?!!  Do you
think that with At-Large Directors on the Board that
registrants would still be paying up to $260 to redeem
a domaine name from the Redemption Grace Period?

I'm not interested in "playing nice".  We need to have
our community protected, and if legal channels are all
that remain, then I will not support any course of
action that serves to eliminate third-party
beneficiary rights.   


--- Luc Faubert <LFaubert@conceptum.ca> wrote:

> Hello Wendy,
>
> Yes, I noticed you put these paragraphs back after I
> deleted them
> yesterday.
>
> I deleted the paragraphs because of the unanimous
> agreement of the
> people on our last conference call to do so, as
> documented in the
> minutes of the call I sent to the list on 04.29.
>
> I appreciate your concerns. However, the clauses do
> not represent the
> spirit of mutuality vehiculated in the MOU and the
> probality that ICANN
> will agree to an MOU carrying these clauses is zero.
>
> So I would appreciate that you respect the will of
> the majority and not
> put them back after I delete them again.
>
> Regards,
>
>
> _________________________________________
> Luc Faubert
> Conseiller en gouvernance TI et en gestion du
> changement /
> IT governance and change management consulting
> +1 514 236 5129
> www.LucFaubert.com
> www.LucFaubert.com/blog
> www.isoc.qc.ca
> www.ccig.ca
> www.uqbm.qc.ca
> www.maillons.qc.ca
>
> 
>
> > -----Original Message-----
> > From: na-discuss-bounces@atlarge-lists.icann.org
> >
> [mailto:na-discuss-bounces@atlarge-lists.icann.org]
> On Behalf
> > Of Wendy Seltzer
> > Sent: 19 mai 2007 07:44
> > To: NA Discuss
> > Subject: [NA-Discuss] Legal hooks in the MOU
> >
> > I replaced what I thought were important terms in
> the draft
> > MoU.  Let me explain further why I think they're
> important.
> >
> > > 6.4 Enforcement. In recognition of the
> considerable time
> > and effort expended by the signing organizations,
> ICANN
> > agrees that its obligations are legally
> enforceable in the
> > courts [or arbitral forums] of [jurisdiction]. In
> the event
> > of breach, ICANN shall be liable for the relying
> parties'
> > costs and fees.
> >
> > I think we want this to be more than just pretty
> words on
> > paper (or screen), but a set of enforceable
> obligations to
> > which groups can hold ICANN.  This language
> specifies the
> > recourse in case of breach.
> >
> > > 6.5 Third-party beneficiaries. This agreement is
> made for
> > the benefit of the general public. Individual
> Internet users
> > are its intended beneficiaries, and its terms are
> expressly
> > enforceable by any member of the public.
> >
> > The At-Large is supposed to be the mechanism by
> which the
> > public has input to and participation in ICANN,
> say the
> > Bylaws.  If we're creating a RALO, we should be
> trying to
> > give the public as many channels as the structure
> allows --
> > including, where necessary, the channel of legal
> enforcement.
> > Third-party beneficiary clauses are the standard
> way to
> > express that public-benefit aspect.
> >
> > Unfortunately, past experience with ICANN suggests
> that legal
> > action is the most effective means to get ICANN's
> attention
> > and action.  For recent examples,  ICANN did not
> respond to
> > the RegisterFly crisis until a class action
> lawsuit was
> > filed.  ICANN renewed Verisign's contract,
> allowing price
> > increases that harm the end-user, after Verisign
> filed suit.
> >
> > I'm not suggesting that we sue ICANN, but leaving
> that option
> > available to us or to others strengthens our
> bargaining
> > position far short of litigation.
> >
> > These legal "hooks" could provide much greater
> opportunity
> > for real progress by this RALO and the public.
> >
> > Thanks,
> > --Wendy
> >
> > --
> > Wendy Seltzer -- wendy@seltzer.org
> > Visiting Fellow, Oxford Internet Institute Fellow,
> Berkman
> > Center for Internet & Society
> > http://cyber.law.harvard.edu/seltzer.html
> > http://www.chillingeffects.org/
> >
> > _______________________________________________
> > NA-Discuss mailing list
> > NA-Discuss@atlarge-lists.icann.org
> >
>
http://atlarge-lists.icann.org/mailman/listinfo/na-discuss_atl
> arge-lists.icann.org
> > ---
> > Draft MoU with ICANN:
> > http://www.icannwiki.org/NA_RALO_MOU
> >
> > Draft Operating Principles:
> > http://www.icannwiki.org/NA_RALO_OP
> >
> > Draft Code of Conduct:
> > http://www.icannwiki.org/NARALO_Code_of_Conduct
> >
>
> _______________________________________________
> NA-Discuss mailing list
> NA-Discuss@atlarge-lists.icann.org
>
http://atlarge-lists.icann.org/mailman/listinfo/na-discuss_atlarge-lists.icann.org
> ---
> Draft MoU with ICANN:
> http://www.icannwiki.org/NA_RALO_MOU
>
> Draft Operating Principles:
> http://www.icannwiki.org/NA_RALO_OP
>
> Draft Code of Conduct:
> http://www.icannwiki.org/NARALO_Code_of_Conduct
>




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---
Draft MoU with ICANN:
http://www.icannwiki.org/NA_RALO_MOU

Draft Operating Principles:
http://www.icannwiki.org/NA_RALO_OP

Draft Code of Conduct:
http://www.icannwiki.org/NARALO_Code_of_Conduct