Re: [ga] Re: iCANN's protection

[Thomas Roessler <roessler@does-not-exist.org>]

On 2001-04-17 09:12:18 -0700, Kent Crispin wrote:

> I did not say his research isn't valid, and my understanding of
> the argument really isn't the issue.  I said his paper expounds a
> legal *theory*.  People appear to be confusing legal *theory*
> with legal *fact*.  Of course, Froomkin also adduces many legal
> facts to support his theory, but the question is, does his paper
> adequately consider alternate theories.  James Boyles piece
> indicates that there are respected legal scholars that disagree
> with Froomkin's premises.

"Legal fact" is a highly interesting notion by itself...  I'd yet
have to see the legal argument which is solely based on "legal
fact".  So lets rather say that he is putting forth legal arguments,
which aren't shared by all of his colleagues (which is not a
miracle, of course, since folks in that profesison hardly agree on
anything ;-).

> I deduce that from the emotional tone of some of his writings.
> eg:

[Icannwatch polemic against MR omitted.]

> You probably agree with Froomkins writings, above, and probably
> find them witty.  But I don't see how either of his ICANNWatch
> articles from which the above quotes came could be reasonably
> construed as anything but gratuitious personal attacks directed
> at Mike Roberts.  But perhaps I'm missing something? Perhaps you
> could explain to me how these articles are actually objective
> attempts to deal with serious issues?

Don't you think that one and the same person can be polemic and
objective about the same topic (or related topics), when dealing
with them at different opportunities?  Don't you think that one
person can put up a polemic opinion piece for political debate on a
web site, and write a high-quality research paper for an academic
journal on a related topic?

Michael doing something like that is not so much different from Dave
Crocker writing this:

| ps.  For all your preference in ad hominems, Chris, I notice the you
| ignored my observation that my position on where to draw the
| membership line is not consistent with what you would expect to be
| my client's preference.  Oops.

<5.1.0.12.2.20010410093900.00a8a130@dcrocker.songbird.com>


Anyway, let's come to your note 2) in
<20010416212024.G25935@songbird.com>:

> 2) The paper deliberately and explicitly ignores the single most
> distinctive issue concerning the root zone, and hence ICANN's
> "authority" -- the fact that no law can compel use of a particular
> root zone, and that control of the root zone is at best fragile and
> problematic.

You are basically claiming that Michael's arguments would only work
if there was a legal or factual DUTY to use the usual root servers.

Of course, such a duty does not exist.  And, of course, ICANN (or,
more precisely, the USG) is not the only player on the "root zone
market" - as we all know there are these folks who are running root
servers of their own.

HOWEVER, the alternative roots (no flames please, I'm not interested
in the "politically correct" names for these) have an extremely
small customer base, and can basically be ignored for any practical
purposes.  Now, that means that the USG de facto has the control
over the DNS name space.  From this fact, Michael concludes that the
USG has a duty to apply due process for its handling of this public
ressource - instead of creating a "private" de-facto monopoly on the
root zone market, which shows precisely the kind of behaviour you'd
expect from a monopoly.


(Of course, the actual question to be answered is how this monopoly
can be fixed or brought under control.  Would competition help?  Or
couldn't it persist on that market?  What kind of control mechanisms
should be established so the single player in that market is forced
to take into account public interest?)

-- 
Thomas Roessler			    <roessler@does-not-exist.org>
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