[ga-roots] Understanding legal precedence

["Patrick Corliss" <patrick@corliss.net>]

Non-member submission from ["Milton Mueller" <mueller@syr.edu>]  

Harald:
An incorrect statement. 

The judge did not make a decision. You cannot lose a 
case when there is no decision. Full stop.

More to the point, the whole Ambler-Postel-IAHC 
brouhaha has utterly no legal significance, for the 
reasons noted below.

The ironic thing about the controversy is that Simon 
gives a lot of weight to Postel's decisions, as if 
Postel really had legal authority over the DNS root
at that time. But Postel's lawyer later denied that he 
had any authority over the root in the Name.Space 
case, and kicked the ball back to the National Science
Foundation.

The most accurate thing one can say about that period 
(96-97) is that authority over the root was unclear,
and contested by several parties. A local judge's 
musings in an initial legal skirmish have no bearing 
on what would happen now. The only serious legal 
decision on a related issue is the disposal of the Name.space case.

Name.space v NSI and NSF did not really pose the same
issue Simon is raising. The results of it were 
profoundly affected by the fact that NSI was a plain 
vanilla "instrumentality" of the US federal government.
If ICANN were also held to be such an instrumentality,
it might save it from Higgsian claims, but it
would jump from that fire into the frying pan of
Froomkinesque challenges to its basic legality. 

At 13:07 03.05.2001 -0700, Simon Higgs wrote:
>The very first alt.root was used as the test bed for Draft Postel. You 
>can't kill off something that has a right to be there - and numerous TLDs 
>still around have Jon Postel/IANA's permission to be in an alt.root. IANA 
>even provided wording for registries in an alt.root to use as a waiver of 
>legal liability.

>just in case anyone does not remember:
>
>Simon Higgs has argued this point of view before an >US court an lost.



--
This message was passed to you via the ga-roots@dnso.org list.
Send mail to majordomo@dnso.org to unsubscribe
("unsubscribe ga-roots" in the body of the message).
Archives at http://www.dnso.org/archives.html