Re: [ifwp] Re: DNSO documents

[Kent Crispin <kent@songbird.com>]

On Thu, Dec 17, 1998 at 10:24:10PM -0500, Bret Fausett wrote:
> 
> Kent Crispin wrote:
> >The bylaws are (I believe) *deliberately* vague on this point. 
> >Postel, Sims, and Co explicitly did not want to prejudge the
> >structure of the SOs. 
> 
> So then let's play this out. Assuming that dnso.org elects not to 
> incorporate and succeeds in its goal of receiving ICANN recognition as 
> the DNSO, what then? What is the legal status of the DNSO? Is it a formal 
> part of ICANN? If so, how did it attain that status? Simply by virtue of 
> the application being accepted? Does the ICANN Board pass a resolution 
> making the successful applicant a division of ICANN?

That would seem to be the most obvious solution.  But, of course, 
IANAL (that's "I am not a lawyer").

> Does the Board have an opinion on this?  

They have not articulated one at this point, to my knowledge.  Reading
between the lines a bit, I get the impression that Mike Roberts has a
slight leaning toward all the SOs being separate organizations, but
he has also very carefully stated that there is no need that the SOs be
symmetric in this regard.  

> I've stated a preference for incorporating because it gives dnso.org more 

I have a slight preference the other way, but it seems to me that 
the question needs a lot of exploration.

> control over its legal status and does not leave important legal 
> protection for its members to ICANN Board decisions that are beyond its 
> control.

What scenarios can you imagine where this would make a difference?
How likely are they? Wouldn't a member of the DNSO always have the
option of just leaving, if they thought the protections were
insufficient? Don't you imagine that the ICANN board will be very
interested in maintaining as much legal insulation as it possibly can
for ICANN and all its members?  Wouldn't it be the case that almost 
all suits against ICANN would name the DNSOcorp as well?

My feeling is that the "legal protection" argument is weak.  

A better argument, I think, is the "convenience to ICANN" argument:
if the DNSO is a corp, then the recognition of the DNSO would
presumably be a contract between the two corporations.  It would be
simpler to enter into such a contract; and it would be easier to get
out of such a contract.  [Maybe.  I am puzzled by the legal
implications of the fact that the DNSO selects 3 board members, and
I'm not sure how that fits into a contractual relationship.]

Three arguments against come to mind: first, we are creating a huge
amount of unnecessary mechanism; second, by being a part if ICANN we
automatically meet all the transparency etc requirements, but there
are always possibilities of conflicting interpretation when there are
separate corporations; and third, there are a bunch of additional
issues involved in creation of a corporation -- eg, where should it
be incorporated? [probably not the US...].

Any comments on these points?

-- 
Kent Crispin, PAB Chair				"Do good, and you'll be
kent@songbird.com				lonesome." -- Mark Twain