Re: [ga] Text of Joe Sims 'willing to advocate' e-mail:

["William S. Lovell" <wsl@cerebalaw.com>]

Andy Gardner wrote:

At 7:39 pm -0500 5/17/01, Bruce James wrote:
>Text of Joe Sims 'willing to advocate' e-mail:
>
>
>
><http://www.icannwatch.com/article.php?sid=156&mode=thread&order=0>http://www.icannwatch.com/article.php?sid=156&mode=thread&order=0
>

Now, I'm getting confused.

Does Joe Sims work for ICANN, or Verisign?
 

Really two issues are involved here: (1) the propriety of the Joe Sims
email; and (2) the huddled
Board and its attorney(s), including Joe Sims, deciding long term issues
that are highly important
to all of us with with no evident character that would reflect the
process of "bottom up" government.

Disregarding all that I've heard Joe Sims, I see nothing wrong whatever with his email.  Attorneys
help negotiate all the time, and it's part of their job to "float balloons" to the other side, get a reaction,
and then, if in the judgment of that attorney some proposal floated back from the other side would
be in the interest of that attorney's own client, that attorney will then try to talk his client into accepting
the proposal.  That is not "working for the other side" or anything like that -- it is a normal negotiating process.  This is particularly the case when the attorney who floats the balloon is careful to emphasize,
as the email indicates Joe Sims did, that what he's floating over there did not come from his client but
rather represents his own personal view of the matter.

If  there is anything wrong with the email, it lies in the implicit presumption that whatever then comes
out of the process will be the final deal, without any input from anyone associated with ICANN
(e.g., read the SOs, the GA, the Internet-concerned public generally, etc.) other than its Board and
attorneys.  But that's issue (2), not issue (1), and on the (2) issue there seems to be no sensitivity here
to the desires, needs, etc., of the "third party beneficiary."  The agreement purports to be for the
benefit of the Internet, i.e., all of us, and how one can negotiate a contract on behalf of a third
party beneficiary without ever consulting with that third party beneficiary is quite beyond me. That
is especially disconcerting when it seems that Joe Sims set up the priorities: I can imagine that a lot
of people would think otherwise, e.g., that points 5, 6, etc., should not only have been at the head of
the line, but determinative. That's what happens when "power brokers" have lost sight of the ultimate purpose of the contract being negotiated, and seek only the "best deal" for their immediate client (in
this case, the Board members and ICANN officers with whom they schmooz), from the perspective
of that attorney looking down from that throne. When it happens, it is a betrayal of a trust, on the part
of all of those who huddle about that throne.

The process up to now should be trashed, and the whole thing started over (or forgotten). Whatever
such deals may arise in the future should rest on input from the SOs, the GA, etc., etc., etc. That's
what the Bylaws and the agreement with the Federal Government require. The California law under
which the Articles of Incorporation were filed require a "public benefit," not specifically any "bottom
up," but when the "public purpose" for which ICANN was formed itself includes a "bottom up"
procedure, the California law would then include that factor, and not to abide by that procedure
would violate California law as well.

(Um, this is not a legal opinion to anyone -- it is my own personal ruminations.)

Bill Lovell

>  
> --
> Andrew P. Gardner
> barcelona.com stolen, stmoritz.com stays. What's uniform about the
> UDRP?
> We could ask ICANN to send WIPO a clue, but do they have any to spare?
> Get active: http://www.domain-owners.org
> http://www.tldlobby.com
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