Re: [ga] New TLD White Paper released

[eric@hi-tek.com]

First thing you must notice is that your mentioned groups do not operate
on any principles.
It is a nice thought and the RFCs are fantastic works that are always
about a year behind the curve.
They are what we would call liberally as second sources but they are
painful in antiquity.

When skiing down a cliff, when running white water rapids, when in hand to hand combat, when doing an emergency tracheotomy one does not consult the rule books.  The Internet is a frontier.  Another example;
Washington DC could no more make laws to govern the New Mexico/Arizona territory in 1900 than it can tell dotCN what to do with it's Internet.  The transcontinental railroads here were built in violation of every law in existence regarding them at the time, but by God the golden spikes were driven, and they provided great benefit to many people.  If a law/rule/regulation/RFC impedes something for the benefit of the people then ignore it.

No I am not talking anarchy here; "Obedience of the law is the greatest freedom" (written by Abraham Lincoln and inscribed in the Springfield courthouse behind his statue)  However rules must be dictated and applied through common sense not common sense dictated by laws.

Sincerely,
Eric

Ramesh Kumar Nadarajah wrote:

 
Question for the professionals: Does it make a difference that the ccTLD community, ICANN and the GAC operate based on the principle stated in RFC 1591 which  says:

"These designated authorities (i.e. the ccTLD manager) are trustees for
the delegated domain, and have a duty to serve the community.

The designated manager is the trustee of the top-level domain for
both the nation, in the case of a country code, and the global
Internet community."

If they are trustees, the beneficiaries appear to be the nation (state?) for a ccTLD. Equitable ownership?

Regards,

- ramesh -
 

Michael Froomkin - U.Miami School of Law wrote:

I am afraid you are confusing national law and international law (and
international public law with international private law). What you have
written is (sort of, in a very basic and oversimplified fashion) the rule
for national law. But national law does not (much) extend beyond the
state's borders.

Public International law is quite different.  Simplifying, the sources of
international are broadly considered to be those found in Article 38 of
the statute of the international court of justice (cf.
http://www.un.org/Overview/Statute/chapter2.html), to wit:

<blockquote>

a. international conventions, whether general or particular, establishing
rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as
law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various nations,
as subsidiary means for the determination of rules of law.

</blockquote>

I cannot prove to you a negative, but I have searched high and low -- I am
writing an article about this very issue -- and it is my contention to you
that not a single one of these four sources exists to support the
proposition that a state "owns" the ccTLD whose TLD is identical to the
ISO country code associated with that state as a matter of public
international law. [It cannot be international private law as there is
neither treaty nor contract to support this claim.] Note, in this context,
that the ISO is itself a private body.  If the matter is so obvious,
surely someone could come up with a citation prior to the GAC's
declaration that this rule was already a fact?

Of course, a state that does not already control its cognate ccTLD could
apply its national rules to take the ccTLD from its domiciliary [since the
delegee of the ccTLD must be resident]. In the absence of some principle
of public international law lodging the ownership of the ccTLD in the
state a priori, the state must do this act in conformity with its own
rules: in some places that means it can expropriate at will, in others it
could threaten to torture the delegee, but in still others it may have to
follow due process and/or offer compensation.

The significance of the debate we are having is that, were it the case
that there were an existing rule of public international law which stated
that ownership of the ccTLD was (always?) (inalienable?) vested in the
state, even a civilized state would not need to observe domestic due
process, and would never need to provide compensation, but could simply
take the ccTLD directly.

There are indeed rights here, but they are rights that sound in
international private law: the rights of the ccTLD delegate to the quiet
enjoyment of his agreement with IANA during good behavior without
interference from outsiders to the relationship.

I hope this has helped you understand why you have used false premises to
reason to an incorrect conclusion.

On Mon, 24 Mar 2003 eric@hi-tek.com wrote:

Professor Froomkin et al,

In law it is my limited understanding that we follow the authority as such;
1. Written statute;
2. Precedence
3. Contract

And if all that is a contradictory mess - we look to the course and
conduct between the parties and the custom and practice of the trade
to determine the rules applied in an IRAC (issue, rule, application
and conclusion) manner.

Of course I am not a lawyer although I have practised and taught in
the past, it would seem that applying these principals would lead us
to the conclusion, barring well based legal argument to the contrary,
that these are matters of sovereignty. If you have any of the
foregoing that is contrary, I would be most interested. It is poor to
argue that a void of law leads to a void of rights.

Eric

"Michael Froomkin - U.Miami School of Law" wrote:

I, of course, argued that no such right exists.  For it to exist it must
have a source.  The name is a convenience created by a private standards
body and used on a private network.  How could it become a subject of
public international law?  No one has ever been able to explain this to me
except to say they think it would be a nice result.  But to be legal it
has to have a legal mechanism.  What is it?

On Mon, 24 Mar 2003, Rodrigo  Orenday Serrato wrote:

What about the right of a nation over the ccTLD that corresponds to it
(provided that the ccTLD in question in fact corresponds to a nation-state).

As Prfr. Froomkin put it in one of his papers (please note that this is not
an exact quote), sovereign nations may come to hold the position that
control over the ccTLD assigned to them is an "appurtenance" of their
sovereignty. Spain and Colombia have, for example.

I do beleive that the right of sovereign nations, and other subjects of
public international law, to control their ccTLD should be acknowledged.


Atentamente, Regards
Rodrigo Orenday Serratos


-----Mensaje original-----
De: owner-ga@dnso.org [mailto:owner-ga@dnso.org]En nombre de Eric
Dierker
Enviado el: Sábado, 22 de Marzo de 2003 06:24 PM
Para: jefsey@club-internet.fr
CC: steinle@smartvia.de; baptista@dot-god.com; ga@dnso.org
Asunto: Re: [ga] New TLD White Paper released


I can show you!  Try,  it.com.vn
I do not buy into the TLD garbage but I buy into ccTLD market.
We must back it up with secondary market contributers.
e

At 04:08 20/03/03, steinle@smartvia.de wrote:

Please show me only one case where your sole rights in a TLD was
acknowledged.

No one has right in an TLD, as no one as right into a nation.
Exept to some extend its registrants.

That ICANN has accepted an absurd economical model
where people buy their own name or lose them, does not
change anything to this.

Please eread RFC 920 and 1591.
jfc


--
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

--
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

--
                Please visit http://www.icannwatch.org
A. Michael Froomkin   |    Professor of Law    |   froomkin@law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
                        -->It's warm here.<--