Re: Fw: SO structure - private

["David W. Maher" <dwmaher@ibm.net>]

FWIW, i don't see any pressing need to incorporate the DNSO. The DNSO has
clearly defined functions in the ICANN scheme of things, and ICANN clearly
has the ultimate legal control, including the power to amend its own
bylaws.  My impression of the concern the other 2 SOs have is that they are
preexisting and unincorporated associations that might have some legal
liability; for them the shield of incorporation makes sense. For the DNSO,
it will probably just be additional expense, because anything the DNSO
does, if it operates responsibly, will be within the scope of the ICANN
functions, and the DNSO will be protected by the ICANN shield. Of course,
the big IF is the "if it operates responsibly". If the DNSO is taken over
by a bunch of lunatics who go off on a frolic of their own, they will wind
up in court, and will not be able to claim the protection of operating
within the bounds set by ICANN.
  Perhaps the bottom line is - do we want to incorporate because we are
afraid of what the DNSO might do independently of ICANN?
	David Maher



At 10:29 AM 12/4/98 -0500, Ken Stubbs wrote:
>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
>>> ============================================================
>>>
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