Re: [ga] .org: non-profit successor for NSI mandatory?

["Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>]

I'm not a contract lawyer, but on first look this appears to an agreement
by which the "operator" pays $5million and ICANN agrees to give .org to a
non-profit.

If ICANN were to give .org to a for-profit, I would guess -- and remember,
I'm a public lawyer not a contract lawyer -- that it would be very
vulnerable to a claim it had forfeited the $5 million and had to return
it.  I don't see that ICANN would liable for further damages for breach of
contract beyond this.

Perhaps Louis Touton could give us his view?

(PS. As a policy matter it is clear why VeriSign would be willing to pay a
lot to ensure that .org was not a competitor.  However, it isn't obvious
to me that this clause perfectly achieves that objective.  That .org is
run by a non-profit does not in principle mean it cannot be a competitor,
since organizational form does not determine registration policy.  One
could imagine a non-profit that ran .com, after all.)


On Thu, 15 Mar 2001, Thomas Roessler wrote:

> <http://www.icann.org/nsi/proposed-org-registry-agmt-01mar01.htm>:
> 
>         5.1.4 No later than 90 days prior to the Expiration Date,
>         Registry Operator will pay to ICANN or ICANN's designee the
>         sum of US $5 million, to be used by ICANN in it sole
> >       discretion to establish an endowment to be used to fund
>                                vvvvvvvvvvvvvvvvvvvvvvvv
> >       future operating costs of the non-profit entity designated
>                                ^^^^^^^^^^^^^^^^^^^^^^^^
>         by ICANN as successor operator of the .org registry.
>         Registry Operator agrees that such funds, once paid to
>         ICANN, will become the property of ICANN and/or ICANN's
>         designee, and that Registry Operator will have no ownership
>         or other rights or interests in such funds or in the manner
>         in which they are used or disbursed.
> 
> 
> Maybe some US lawyers here can enlighten us whether or not this
> clause constructs an obligation for ICANN to assign .org to a
> non-profit entity after NSI gives it up?
> 
> 

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