Re: [ga] Re: Board descisions

[Kent Crispin <kent@songbird.com>]

On Sun, Mar 18, 2001 at 12:12:36PM +0100, Roberto Gaetano wrote:
> Kent,
> 
> I'm coming now, after the F1 Grand Prix of Malaysia, to the second and more 
> important part of your message.

Well, it's all relative :-)

> You wrote:
> >
> >On Thu, Mar 15, 2001 at 02:43:12PM +0100, Roberto Gaetano wrote:
> > >   Now, were I the Chairman of the ICANN Board, I would have immediately
> > >   replied to Mr. Sclavos that, even if his proposal is interesting, what
> > >   ICANN will decide for the future of .org is none of his business.
> >
> >With all due respect, there may be a reason why Vint is chairman, and
> >you are not.  If one is trying to win concessions in a contract,
> >sometimes telling your negotiating partner to "stuff it" might not be the
> >best way to proceed.
> 
> I do agree with you on the first part, but going further with the 
> reasonment, I would assume that one person with the experience of Vint
> would have found a polite way to make the remark, would he have been
> willing to make clear (to Verisign and to the Internet community) that
> the future of .org is only determined by ICANN, and is not part of the
> negotiation. 
> 
> Having not seen that, I may suspect that this *is* indeed part of the
> deal. 

But in my estimation that suspicion simply doesn't meet the "common
sense" criteria.  Vint is chairman, indeed, but he isn't the entire
board, and he simply can't guarantee how the board will vote.  Neither
can the staff.  Mr Sclavos would be an idiot to believe that either Vint
or the ICANN staff could guarantee such a thing, and common sense tells
me that Mr Sclavos is not an idiot.  Therefore, nobody on either side of
the negotiation can do much more than take the contracts at face value. 

> > >   The fact that I did not see so far neither a formal letter, nor even a
> > >   statement in Melbourne on the subject, makes me think that ICANN
> > >   agrees with this approach.
> >
> >Of course.  It's a no-brainer, and is exactly what people on this list
> >and elsewhere are clamoring for.
> >
> 
> You mean that of course Verisign decides the future of .org?
> I think we have a misunderstanding here. I must have not been sufficiently 
> clear.

Could be, I don't recall from the context above.  However, when you
think about it, what people are clamoring for is indeed that Verisign 
determine the future of .org, because what they are clamoring for is 
for .org to remain in vsgns hands.

> > >   Joe Sims, in fact, presented this as an advantage of the solution "B"
> > >   (the new contract). And this makes me even more suspicious.
> >
> >Are you misreading what the above letter says?  Clearly, Mr Sclavos is
> >concerned that ICANN will throw a bunch of people out of .org, and he
> >has been reassured that won't happen.  This is precisely what people
> >have been clamoring for.  Why on earth does that make you suspicious?
> >
> 
> The fact that ICANN will throw people out of .org is so absurd, from my 
> point of view, that I was not even taking this into consideration, and I 
> tend to believe that neither did Mr. Sclavos.
> What I am fearing is that Verisign is willing to grant the $$$ only subject 
> to conditions on the future charter of the registry and/or the 
> organizational type of the (future competing) Registry.
> 
> Verisign uses a language in the letter that assumes that this is a deal, and 
> states that this has been discussed.
> Or do you think that one of the reasons Mr. Sclavos is CEO of Verisign and 
> we don't is that he writes one thing and implies another? ;>)

I think Mr Sclavos dictated that letter to a secretary mainly as a 
polite message to the chair of the board of a company with whom his 
company has been dealing with.  The letter is not a contract, and indeed 
it is quite possible that Mr Sclavos dictated it in a hurry.
[...]
> 
> You rightfully said "[it] had been perverted". I lament that too. But this 
> cannot be fixed anymore.
> It would be utterly unfair to apply a more restrictive charter after the 
> Registry has been "perverted" for some time: we have to live with that.

No, I don't agree that it would be unfair to apply a more restrictive 
charter.  That depends entirely on the content of the charter, not on 
the act of applying a charter.

> > > I believe that that the only
> > > sensible thing to do is to let it continue as is. If we really think
> > > that a specific TLD has to be reserved to non-commercial
> > > organizations, we just have to create one for the specific purpose,
> > > instead of redesigning .org.
> >
> >That's fine, and if that's what the Internet community wants, that is
> >indeed what they will get.  As I read the contract, there is nothing at
> >all that determines what the registration policies for the new registry
> >would be.
> 
> Correct.
> I was talking, though, about the statements on the letter about ICANN's 
> intentions, that have not been corrected by ICANN so far.

It's a letter, not a contract.  

> >Moreover, there is absolutely no doubt in my mind that the ICANN staff
> >was trying to get what they considered the best possible deal for the
> >internet community out of those discussions, and let the community
> >decide whether they were good enough.
> >
> >[...]
> >
> > >   The fact that the Registry that will inherit .org must be a non-profit
> > >   is spelled out in 5.1.4.
> > >
> > >   IANAL, but I believe that if ICANN wants to change this, Verisign may
> > >   refuse to pay the $5M.
> >
> >I believe that the phrase "ICANN, at its sole discretion...", trumps that.
> >
> 
> Not really.
> The phrase, conveniently cut in your quote, continues, and reads "ICANN in 
> it sole discretion to establish an endowment to be used to fund future 
> operating costs of the non-profit entity designated by ICANN as successor 
> operator of the .org registry.".
> My understanding is that the $$$ are conditional to the fact that the new 
> operator is non-profit.

That is not the way I read it at all.  It seems fairly clear to me that
using the funds to establish the endowment is at ICANN's sole discretion
-- if ICANN decides to use the funds for something else, that is within the
meaning of "at its sole discretion".  My best interpretation of this
clause, in fact, is that ICANN can do whatever it wants with the money.  

Moreover, as has been pointed out, the non-profit status of the 
registry operator is completely independent of the policies of the tld. 

-- 
Kent Crispin                               "Be good, and you will be
kent@songbird.com                           lonesome." -- Mark Twain
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