Re: Fw: SO structure - private

["Ken Stubbs" <kstubbs@corenic.org>]

hello all:

personally i believe that the decision to accept any SO application should
not be influenced by the legal structure of the specific SO.

if the specific purpose of a SO is to make recommendations to ICANN for
specific actions,policies, etc. ultimately to be established and enacted by
ICANN. and:

ICANN specifically takes unto itself ultimate responsibility for evaluation
of the recommendation ,making,modifying, ratifying,rejecting  or enacting
these recommendations then;

why should ICANN require and why is it necessary that the SO to insulate
itself legally from any decision that ICANN has control over making ?

to me this just imposes an additional cost burden on the SO's which
ultimately will be passed on down the road somewhere.

someone please help me out on this ...

ken stubbs

-----Original Message-----
From: Antony Van Couvering <avc@interport.net>
To: Michael Sondow <msondow@iciiu.org>
Cc: discuss <discuss@dnso.org>; participants@dnso.org
<participants@dnso.org>; transition@dnso.org <transition@dnso.org>
Date: Friday, December 04, 1998 3:35 AM
Subject: RE: Fw: SO structure - private


>I'd like to note for the record that yes indeed we all decided to
>concentrate on the non-incorporated option, but that was because there was
a
>strong case made that this was all that ICANN would accept.
>
>If that in fact is not the case, as it now appears, that sheds an entirely
>different light on the question.
>
>Antony
>
>> -----Original Message-----
>> From: owner-transition@itu.int [mailto:owner-transition@itu.int]On
>> Behalf Of Michael Sondow
>> Sent: Thursday, December 03, 1998 10:54 PM
>> To: Dr Eberhard W Lisse; Carsten Schiefner
>> Cc: discuss; participants@dnso.org; transition@dnso.org
>> Subject: Re: Fw: SO structure - private
>>
>>
>> Eberhard, Carsten and all-
>>
>> Just because the (potential) PSO and ASO may be incorporating, that
>> doesn't mean the DNSO must follow them. We can choose not to if we wish.
>> Carsten's right, there was a majority in Monterrey for not
>> incorporating. It's not just a question of legal accountability,
>> although that is an important question, but also of whether the DNSO
>> wants to set itself as a separate organization from ICANN and "pull the
>> teeth" of ICANN's authority.
>>
>> Furthermore, incorporating separately means the memberships of ICANN and
>> of the DNSO are separate. This is a very big step to take, because the
>> ICANN bylaws place the SOs within its membership structure, don't
>> forget. If the SOs are separate corporate entities, they must not only
>> have separate bylaws but a separate membership and a separate BoD. This
>> is setting up an adversarial relationship with ICANN, and weakens it
>> considerably. This may be a bad thing to do, at this point.
>>
>> Autonomy? For what purpose? ICANN will still have the authority, if the
>> USG continues its present course. And that course depends on arriving at
>> a consolidated self-governing body, not four or five different bodies.
>> The SOs were envisaged as advisory councils for ICANN, not as distinct
>> organizations. How can the authority to decide on domain name, protocol,
>> and addressing policy be made by both ICANN and the SOs? Maybe what some
>> people want is for only the SOs to make policy, separately from ICANN,
>> but then the ICANN bylaws must be rewritten. This means going back to
>> where we were in June.
>>
>> The lawyers for the PSO and ASO counselled them to incorporate,
>> apparently. But we must ask ourselves why they did this. Was it for the
>> good of ICANN and the good of the Internet, or was it perhaps because
>> the lawyers wanted to represent the SOs and get nice fat fees for
>> defending the SOs when they get sued? Were these lawyers Internet
>> people, ware of the complexities of the present situation and its
>> history? Aware that hundreds or thousands of people have been trying to
>> find a consensus approach to the NewCo? It doesn't sound like it.
>>
>> Frankly, if I were counsel to ICANN, I would tell them not to recognize
>> these SOs that are incorporating separately, if my interest was in
>> seeing the ICANN accomplish its mission of focussing all the disparate
>> contingents and finding a way of making policy from consensus. If, on
>> the contrary, my interest was in legally protecting the ICANN Board,
>> sure, it's great for the SOs to be accountable separately from ICANN.
>> But it could be bad for the Internet, and it's certainly not what
>> everyone involved in these disputes for so long has been hoping for. It
>> is, in a way, institutionalizing the failure of ICANN before it has a
>> chance to get started.
>>
>> We should keep in mind, I think, that these self-appointed SOs are
>> illegitimate. Their legitimacy comes from ICANN, not from incorporating.
>> The ORSC, for instance, incorporated when they wrote their bylaws, which
>> they sent to the NTIA, but that didn't make them ipso facto a competitor
>> with ICANN for recognition as the NewCo. Likewise the IETF and whoever
>> has incorporated as the ASO, the registries and such, are making a huge
>> pretense by incorporating as the PSO and ASO. There has been no open
>> process by which their memberships and bylaws have been decided. By what
>> right do they incorporate as SOs? If ICANN has been created by a less
>> than open process, these SOs are far worse, and have gone against the
>> intention of ICANN's bylaws, which have been accepted as a workable
>> basis for the NewCo by the USG and almost everyone else. By
>> incorporating, these groups who now call themselves the PSO and ASO have
>> become outlaw SOs, not because they separate themselves from ICANN but
>> because they have yet no right to be the SOs, which were created by the
>> ICANN bylaws and must follow the ICANN bylaws in order to be legitimate.
>> The DNSO, on the other hand, has never done this; it was not formed to
>> incorporate as the DNSO but in order to present a proposal to the ICANN,
>> in keeping with the spirit of the process that is under way, and derives
>> its openness, legitimacy, and self-respect from this position.
>>
>> Speaking for myself, I like to do things in a straightforward way.
>> Either I go along with ICANN and help to influence them to realize their
>> mission, which means creating a DNSO that's part of ICANN, that IS the
>> ICANN, or I join an organization - the DNSO or some other - that's
>> opposed to or competing with the ICANN. But I don't play this divisive
>> game and ruin ICANN's chances of succeeding.
>>
>> Personally, I think that the people who organized this DNSO that we are
>> involved in have had the right approach - to follow the structure set up
>> in the ICANN's bylaws - and see if it can be made to work. To start
>> creating separate entities without open process, causing legal conflicts
>> and membership confrontations (who will be a member of ICANN and who a
>> member of the DNSO, if they are separate?) at this stage is, for me, a
>> big mistake.
>>
>>
>> Dr Eberhard W Lisse a écrit:
>> >
>> > In message <3666DE4B.9FF53C4F@tcpip-gmbh.de>, Carsten Schiefner writes:
>> > > Dr Eberhard W Lisse wrote:
>> >
>> > > > I think too, we should incorporate (in Delaware or
>> somewhere similar).
>> > >
>> > > Could someone please tell me what the reason is for this change in
>> > > mind cause AFAIR in Monterrey almost everybody has agreed _not_ to
>> > > incorporate.
>> >
>> > I was always for incorporating :-)-O
>> >
>> > It's not an issue actually, with regards to be safe from law suits,
>> > whether DNSO is part of ICANN or independent. The persons running it
>> > must be protected and are in both modes if I am not mistaken. But it
>> > will give us greater autonomy.  And if the other two do it...
>> >
>> > el
>>
>> --
>> ============================================================
>> Concerns about "rights" and "ownership" of domains are
>> inappropriate.  It is appropriate to be concerned about
>> "responsibilities" and "service" to the community.
>>
>>                                     ----- Jon Postel, 1994.
>> ============================================================
>> International Congress of Independent Internet Users (ICIIU)
>>        http://www.iciiu.org       iciiu@iciiu.org
>> ============================================================
>>
>
>