Re: [ga] Re: Transfers: Apparent Authority Discussion

[Dan Steinberg <synthesis@videotron.ca>]

ok...here is where I weigh in. when an admitted non-lawyer makes a
statement like : 

'in agency law the specific definition is pretty clear'

...well...

I hate to be a wet blanket, but it just ain't that simple.

This is an international environment we are dealing with here folks.  A
good chunk of the world does not even operate under common law...so
agency law as Ross learned it...is totally inapplicable. there are
analogous concepts, yes. but the correspondence and statute, and caselaw
and interpretation and legal foundations...are completely different.

And even where you can call up agency law as the default
condition....there is no over-riding law that sez everywhere that agency
law cant be avoided via contractual terms somewhere. And if it turns out
in a specific instance to produce a result against public policy in a
particular jurisdiction (likely one where comsumer protection is valued
high) ...well tough...throw agency law out the window that day.  

I think Danny Younger makes a good point.  So why not focus on coming up
with a definition we all want to see inserted into contractual terms
like the agreements between registrant and registrar, etc?

Then...if we come up with what we want to see, someone else (not me) can
look at it and see how best to word it so as to reduce the risk of
challenge in court?

I figure there is no way to word anything absolutely iron-clad, but we
can probably get it close enough to deter most lawsuits except if the
domain in question is worth megabucks.  For that..alll bets are off if
someone wants to claim the tranfer was unauthorized...the courts will
just have to decide.


Anyone want to take a stab at this?


"Ross Wm. Rader" wrote:
> 
> >
> > In the document that is not "your draft", it is written:
> >
> > "The Task Force suggests that, after further examination, that apparent
> > authority is a well-defined legal concept and the lack of specific
> definition
> > within the relevant body of ICANN policy should not be a barrier to the
> work
> > of this task force to make policy recommendations."
> >
> > Why continue to be obtuse?  Is there a particular reason why you will not
> > provide a specific definition?
> 
> Speaking from a drafting team perspective, what is obtuse about the present
> legal definition of AA? IANAL, but in agency law, the specific definition is
> pretty clear.
> 
> > Further, what problems do you have with the
> > Australian model as cited?
> 
> Speaking from a personal/Tucows/Constituency member perspective the
> Australian model is one of the finest examples of avoiding the tough
> problems that I have seen in a long time. I am sure that it works within the
> confines of their limited scope, but until CP/IP gains wider support, using
> tree-bark to conduct business in a global market over the Internet remains
> silly.
> 
> With that being said, I am sure that if there is any interest within the TF
> in exploring the .au model then I am sure that it will be discussed. My
> initial reaction is that it won't be a very productive discussion in that it
> solves the wrong problems.
> 
> -rwr

-- 
Dan Steinberg

SYNTHESIS:Law & Technology
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