Re: Apology accepted (Re: [ga-roots] Re: Criminalization of alt roots)

[Simon Higgs <simon@higgs.com>]

At 09:11 PM 5/6/01 +0200, you wrote:

>Apologies, I was in error.

Accepted.

>I thought that you had worked together with IODesign and Chris Ambler in 
>the case brought by IODesign about .web where injunctive relief was 
>denied, but it appears that this is not the case.

I did provide expert witness but I didn't get to testify. I didn't argue 
this point anyway.

>My comment should have read "The viewpoint that .web has a right to be in 
>the root has been argued before an US court and dismissed".
>
>My comment is based on http://www.brandenburg.com/misc/iodesign-judge.html

Listening to Dave Crocker's imagination is a huge mistake. ;-) Here's the 
reality. The case was not argued correctly, IMHO. The grounds for the case 
were perfectly valid. The IAHC/CORE were stealing the intellectual property 
and goodwill that IOD had created for .WEB. This was a bad thing that the 
lawsuit succeeding in stopping.

In the Judge's words, "[IOD] has not met its burden of proof to establish a 
reasonable likelihood of prevailing on the merits of Image Online's claims 
at the time of trial" was the Judge's way of saying "you guys are dorks - I 
know you're right, but your case is full of holes - go away and come back 
with a stronger case." So IOD dropped the case without prejudice allowing 
them to come back and sue at a later date.

The IAHC was supposed to be about consensus. The first sign outside the 
mailing lists that there was a lack of consensus was the lawsuit. Crocker 
has made a victory speech out of that text. Put in context, the 
IAHC/CORE/gTLD-MOU lost the whole game because of it.

>On rereading Simon Higgs' statement again, I see that he did not even make 
>that statement this time; he was talking about the right to be in an 
>"alt.root", something I have not seen a possible legal basis, or even a 
>reason, for denying.

Therefore it's not something that can be made illegal without burning the 
Constitution in the US. Kent will happily light the match apparently.

>However, I do not accept the premise that because it is legal to build an 
>alt.root, being in an alt.root gives any right to be in the ICANN DNS root.

That's not the argument. The argument is that is it wrong for public 
collisions to occur. OK so far? Also, that a "taking away" of another's 
property by a quasi-government agency (or private company under US 
government contract) is illegal under the US 5th Amendment.

Therefore, the goodwill and IP that a TLD manager creates in a TLD in an 
alt.root cannot be taken away by a deliberate collision manufactured and 
endorsed by a government action (i.e. the Department of Commerce accepting 
ICANN's recommendation and taking .BIZ away from ARN).

Does that mean that .BIZ belongs in the ICANN root? Not necessarily. But if 
the DNS is to retain unicity, the peering of roots should take place. If 
OpenNIC and ORSC could peer, or New.net and Name.space could peer, why 
can't ICANN peer? By remaining Exclusionary and not peering, ICANN is 
breaking a fundamental principle on how the Internet functions. What would 
happen if Tier 1 ISP peering was turned off right now? Lot's of fibre would 
go dark. This is exactly what ICANN is doing to the DNS by keeping the 
switch thrown to off.


Best Regards,

Simon Higgs

--
It's a feature not a bug...

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