RE: [ga] Net-block issues

["Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>]

Since ICANN dictated the contract, I question whether the ordinary
contract theories really apply.  It's not the ordinary "bargain" between
buyer and seller when NEITHER party has the authority to vary the terms of
service even if BOTH want to!

So, yes, the terms do matter, and they are not the same, and we shouldn't
forget it.

On Tue, 21 Aug 2001, Peter de Blanc wrote:

> Whether you call it "ICANN meddling" or not, the ultimate authority here
> (in UDRP) comes by contract. Registries have "terms and conditions" of
> service. The registrars pass those terms and conditions along to the
> users of the service. The users (domain name holders) contractually
> agree to be bound by those terms, in order to get a domain name. terms
> may be financial (they pay $ 25.00) or non-financial (they agree to
> UDRP).
> 
> All of this comes by contract. Anyone is free to enter into, or not
> enter into a contract, or, for that matter, to attempt to negotiate the
> terms.
> 
> All terms, including UDRP, could be re-negotiated in the future,
> provided enough of the stakeholders wish to.
> 
> Peter de Blanc
> 
> 
> -----Original Message-----
> From: owner-ga@dnso.org [mailto:owner-ga@dnso.org] On Behalf Of Sandy
> Harris
> Sent: Tuesday, August 21, 2001 12:53 AM
> To: wsl@cerebalaw.com
> Cc: 'ga@dnso.org'
> Subject: Re: [ga] Net-block issues
> 
> 
> "William S. Lovell" wrote:
> 
> > > On the other hand, an ISP or a registry should not be acting against
> 
> > > its customers for anything other than direct abuse OF the network. 
> > > There are laws against libel, trademark misuse, stalking, 
> > > harassment, some types of pornography, 'hate literature', slander, 
> > > software 'piracy', ...
> > >
> > > All these forms of abuse ON the net are better dealt with by police 
> > > and courts than by system admins. Courts have legal authority to act
> 
> > > on these issues, experience and expertise, protections for the 
> > > accused, standards of evidence, ... Neither ISPs nor registries have
> 
> > > any of those.
> > >
> > > There may be some exceptions for extremely blatant violators, where 
> > > an ISP or registry might reasonably help stop abuse, but when there 
> > > is any doubt at all, they should give their customers the benefit of
> 
> > > that doubt.
> > >
> > > So, while I feel that having registries disconnect spammers is not a
> 
> > > good idea (mainly because I don't trust ICANN to come up with good 
> > > guidelines and NSI are themselves spammers), I do think you can make
> 
> > > a far better case for that than for having them try to enforce 
> > > trademark restrictions.
> > 
> > All of the above hangs together perfectly.  It also leads to the key 
> > question, though.  Copying the phrase "Courts have legal authority to 
> > act on these issues, experience and expertise, protections for the 
> > accused, standards of evidence, ... Neither ISPs nor registries have 
> > any of those," a complete statement would be made if one added ICANN 
> > along with ISPs and registries, and with specific emphasis on 
> > trademarks.  ICANN, with its UDRP and other policy meddling, suffers 
> > from the same lack of legal authority, experience and expertise, 
> > protections for the 'accused,' standards of evidence, and soforth.
> > 
> > Bill Lovell
> 
> I agree completely.
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A. Michael Froomkin   |    Professor of Law    |   froomkin@law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
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