Re: [ga] Thoughts/question on the WLS

[Don Brown <donbrown_l@inetconcepts.net>]

I am not clear about how ICANN, by deferring a decision, has any
bearing on preserving anyone's rights.

Fundamentally, ICANN has certain rights and obligations pursuant to
the MoU. It has contracts with Registries and with Registrars.
Normally, all properly crafted contracts provide that an omission or
inaction is not considered a waiver of rights under a contract and
that the rights and obligations are cumulative and can be exercised at
any time and time from time to time. IOW, if they do not enforce a
provision, for whatever reason, they can still enforce it later.

I fail to see how enforcing a provision or not enforcing a provision
operates to preserve, or not to preserve, any third party's rights.

I think it boils down to ICANN's rights and obligations under the MoU
and its rights and obligations under its contracts with others.

One of ICANN's obligations, and its only success as admitted during
the congressional hearings, is to foster competition.

Transforming an already competitive market into a monopoly registry
service can hardly be considered as fostering competition. Even if the
price was $0.50, 100% of the gross proceeds would be donated to
charity and the service was 100% guaranteed to benefit the consumer,
that would still not justify thwarting free enterprise and open market
competition or for ICANN to ignore its obligation to foster
competition.

Sometime, we make things so complicated that they become convoluted
and we loose track of the forest because of all those darn trees.

Thanks,


Saturday, July 13, 2002, 3:54:17 PM, Bret Fausett <fausett@lextext.com> wrote:
BF> Thomas Roessler wrote:
>> Nobody could disagree with this.  As I said before, WLS has some
>> aspects which may best be dealt with in court, and some aspects
>> which can _only_ be dealt with within the ICANN process...

BF> That's just right! What I'm trying to articulate -- and I'm doing a fair
BF> amount of thinking out loud here -- is a decision-making philosophy for
BF> ICANN by which ICANN looks to defer a decision to another forum/arbiter
BF> whenever possible. It decides only those matters that only it can decide.

BF> This might mean making a determination as to whether the WLS created
BF> instability for the .com TLD or the Internet as a whole. It might mean
BF> examining other technical issues associated with the implementation of WLS.

BF> But if the registrars had a remedy at law for a registry's anticompetitive
BF> behavior, then ICANN would intentionally pass on that issue, taking care to
BF> preserve everyone's legal rights so they could be pursued elsewhere.

BF> Of course, if ICANN had adopted such a decision-making philosophy from the
BF> beginning, we never would have had the UDRP. But it's easy to grant the UDRP
BF> a special grandfather status in a reformed ICANN and look to narrow ICANN's
BF> mission for the future to those matters that only it can deal with
BF> effectively.

BF>     -- Bret





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