RE: [ga] serious participation in ICANN processes

[Jefsey Morfin <jefsey@wanadoo.fr>]

Ladies and Gentlemen,
I am sorry to say that this discussion is of absolute no interest.
Either iCANN has international pretence and is and behaves as such,
or is a private interest californian corporation and is of no interest to us.

Is anyone serious considering if a NY juge could veto the Gulf war,
interfere with the Anti-Nuclear Treaty or order a stop to the Afghanistan
conflict because the UN are located in Mahattan ?

I am truely puzzled by the subjects of this GA ML. We currently
have a major change in the very nature of the Internet and of its
control. This will probably lead to a fossilized Internet with a direct
control of the SLDs and huge attempts to privacy in various countries
(China, USA, Italy, UK, may be France, ..) the whole thing taking
advantage/helping the ICANN/Staff private take over. This take
over ultimately leading to anti-trust action which may result in a
full governmental sterilization of the net.

And we discuss the way to add 100 votes together, the bags of
@large enveloppes, the californian law, the US administrative
procedures, the unpolitness of Mr. Crocker ... I wonder if this is
appropriate?

Jefsey



On 01:24 04/04/01, Roeland Meyer said:
>See Karl's answer below;
>
> > From: 'Kent Crispin' [mailto:kent@songbird.com]
> > Sent: Tuesday, April 03, 2001 3:17 PM
> >
> > On Tue, Apr 03, 2001 at 04:23:43PM -0400, Sotiropoulos wrote:
> > > Kent, I've copied a message I had prepared in response to
> > this same argument
> > > of yours on the WG-Review on Jan. 31st
> > >
> > (http://www.dnso.org/wgroups/wg-review/Arc02/msg02292.html),
> > for the benefit
> > > of all on the GA List.  It went like this:
> > >
> > > "Ok Kent, I've read it a few times over and also gone to the CNPBCL
> > > Code.
> >
> > [...]
> >
> > Since, however, the @Large is able to vote in Directors of the Board,
> > does it not follow that such members are actually acting according to
> > the CNPBCL definition of "members" (i.e.  "5056.  (a)
> > "Member" means any
> > person who, pursuant to a specific provision of a
> > corporation's articles
> > or bylaws, has the right to vote for the election of a director or
> > directors...) ??? I'd appreciate a response."
> >
> > No, it doesn't mean that.
> >
> > To reiterate: 1) Contrary to the statement that started this thread, a
> > CNPBCL is not required to have members; 2) The ICANN bylaws
> > make it very
> > clear that the "Members" defined in the bylaws do not qualify
> > as members
> > under the CNPBCL code.  Karl Auerbach has a mischievous interpretation
> > of those laws, which you have picked up and will defend to the death,
> > but the people who crafted those bylaws knew what they were doing.
> >
> > I have been told that Karl bases his creative reading on a fundamental
> > misunderstanding (deliberate or not) of the legal view of
> > whose benefit
> > the bylaws are written for -- the bylaws are written for the
> > benefit of
> > the corporation; they are not written for the benefit of outside
> > parties.  If the corporation writes bylaws that state that
> > "we are going
> > to allow people to help us select directors, but that they
> > are not to be
> > considered members as defined in the CNPBL", then that's how
> > things are.
> >
> > So, bottom line, ICANN does not have members (as defined by the
> > CNPBCL), and it is under no legal obligation to have them.  There
> > really is no question about this.
>
>Yes there is ... and I'd rather take the word of a member of the California
>State BAR over yours. I note that you have made no IANAL disclaimers, are
>you pretending to be a lawyer?
>
>Thanks to Karl Auerbach for the following (posted with permission);
>
> > -----Original Message-----
> > From: Karl Auerbach [mailto:karl@cavebear.com]
> > Sent: Tuesday, April 03, 2001 1:26 PM
> >
> > The person who posted gave only part of the story and as such
> > comes to an
> > incomplete conclusion.
> >
> > Sure the California statutes do allow non-membership corporations.
> >
> > But membership may arise from either a positive explicit
> > declaration in
> > the Corporation's organic documents (Articles of Incorporation or the
> > By-Laws) *OR* by the indirect consequences of procedures written into
> > those same documents.
> >
> > And one of those procedures through which a corporation comes to have
> > members is by having elections for directors pursuant to
> > provision in the
> > Articles or Bylaws. (Section 5056 of the California
> > Corporations Code.)
> >
> >   5056. (a) "Member" means any person who, pursuant to a specific
> >   provision of a corporation's articles or bylaws, has the
> >   right to vote for the election of a director or directors...
> >   "Member" also means any person who is designated in the articles
> >   or bylaws as a member and, pursuant to a specific provision of
> >   a corporation's articles or bylaws, has the right to vote on
> >   changes to the articles or bylaws.
> >
> > And under that section those who get the power to vote thereby become
> > members.
> >
> > (One can argue about the effectiveness of ICANN's use of an
> > resolution to try to avoid the "pursuant to a specific provision"
> > part of the statute.)
> >
> > A corporation can't override the statute and say that that
> > that implict declaration of membership (i.e. the election of directors)
> > doesn't cause membership to arise.
> >
> > See: http://www.cavebear.com/icann-board/platform.htm#full-members
> >
> > The provision that Crispin quoted is merely a catchall that
> > serves to say that if nothing in the Articles or Bylaws either
> > explicitly or implicitly causes a membership to arise, then
> > the corporation is still legal.
> >
> > There is no iconsistency between section 5310 and 5056. The
> > presence of a section 5056 election means that a corporation
> > has not effectively provided "in its articles that it shall
> > have no members."
> >
> > A draftsman can create a set of corporate documents, such as
> > ICANN's, in which there is both a declaration of no-membership
> > and provisions that do create membership.  But that is just
> > slopply lawyering.
> >
> > Notice that the first sentence of section 5310(a) merely allows a
> > corporations to *state* in its articles or bylaws that it
> > shall have no members.  But such a provision is, in and of itself,
> > nothing more than a bald statement.  The second sentence of 5310(a)
> > is the real meat - according to that sentence it is only the
> > *absence* of any membership-causing provision, such as 5056, anywhere
> > in the articles or bylaws that causes there to be no membership.
> >
> >               --karl--
>--
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