Re: [ga] ICANN role in enforcing court orders in domain name disputes

[Dan Steinberg <synthesis@videotron.ca>]

ummmmmmmm, I am not ICANN's counsel so I do not speak for them.

But it seems to me that we have to be careful about exactly what we are
talking about. There is a big difference between someone acting 'in
authority' because they have to or because they want to...and someone
acting 'to influence'...

Speaking in very general terms, there is a broad range of possibilities
for organizations to act in the world. (now, is that a generalization or
what?).  What this means (and we have seen examples earlier this week)
is that it is possible to get cases where an entity is not obliged to
act, nor are they specifically precluded from acting.

Just because someone 'can' do something doesn't always mean that they
have to. Similarly, just because someone is not 'obliged' to do
something doesn't preclude them from doing it sometimes on a
case-by-case basis providing they 'can' in the first place.

Now thats what is supposed to happen. Of course, actual mileage may vary
and you may feel that an entity is either going too far or going not far
enough.   

Speaking completely hypothetically, if you feel someone has done
something in an abuse of authority or power, the most drastic step is
for someone with 'standing' to go to court seeking immediate relief. 
Down a notch on the urgency meter, the next one is seeking damages and
preventing them from doing it a gain. Down another notch is getting them
to 'dont do it again!' Down further on the urgency scale is 'well...next
time you are up for renewal of your position, lets replace you'...

Going back to the almost-specific from the general, what is referred to
as 'taking matters into its own hands' is something called exercising
judgement. When you have policy guidance or procedures, then it becomes
a somewhat clerical or admin function.

Getting even closer, I have to remind that the UDRP is a procedure that
is binding on registrants via contract (you cant have a domain unless
you agree to either submit to UDRP or go to court). So any UDRP decision
is in itself not binding on any court, not like ACPA would be on the
applicable US courts.

This does get a bit complicated sometimes, and its hard enough to figure
out what 'has' to be done with out worrying about what 'might' be ok or
might be too much.


But (finally) getting down to specifics... the wording of 3b seems to
say...that the 'registrar' will.... "cancel, transfer or otherwise make
changes to domain name registrations under
    the following circumstances: b. our receipt of an order from a court
or arbitral tribunal, in each case of competent jurisdiction, requiring
such action;"

That paragraph governs the actions of the registrar and not ICANN.

Given that apparently 3b does not oblige ICANN to intervene, we must ask
does it mean that ICANN cannot or should not intervene? or does it fall
under general discretionary authority?  that is where all the general
statements come in.

Re-reading my post, I fear I have failed to shed light on the subject
and risk confusing even more.


Thomas Roessler wrote:
> 
> On 2002-04-10 15:47:44 -0400, James Love wrote:
> 
> >Is there some policy guidance as to when ICANN should jump in and
> >take matters into its own hands to enforce one nation's court
> >orders in a cross border dispute over jurisdiction?  (There is no
> >court order asking ICANN to do anything).
> 
> I seem to understand that paragraph 3(b) of the UDRP is believed to
> be applicable.  Maybe Dan Steinberg, who represents the GA on the
> UDRP task force, can shed some more light onto this.
> 
> --
> Thomas Roessler                          http://log.does-not-exist.org/
> --
> This message was passed to you via the ga@dnso.org list.
> Send mail to majordomo@dnso.org to unsubscribe
> ("unsubscribe ga" in the body of the message).
> Archives at http://www.dnso.org/archives.html
--
This message was passed to you via the ga@dnso.org list.
Send mail to majordomo@dnso.org to unsubscribe
("unsubscribe ga" in the body of the message).
Archives at http://www.dnso.org/archives.html