Re: [iana@ISI.EDU: SO note]

[Kent Crispin <kent@songbird.com>]

On Mon, Dec 21, 1998 at 11:56:48PM -0500, Michael Sondow wrote:
> We can't just do whatever ICANN tells us, if it's wrong for the DNSO's 
> constituents.

No question about that -- I agree 100%.  However, that begs the
following question: what is right for DNSO's constitutients, given
that ICANN has given us this news?

> These new bylaws - because that's what they are, since they 
> contravene ICANN's own bylaws as well as the White Paper - turn the SOs into 
> fall-guys for ICANN. The SOs are supposed to create policy, but they have 
> no decision-making power, which rests with the ICANN Board, and at the same 
> time will be sued for the decisions made by ICANN, over which they have no 
> control. The SOs are supposed to provide funding for ICANN, but ICANN won't 
> help them when they do get sued for the decisions ICANN makes. Everything 
> for ICANN, and nothing for the DNSO. We cannot go along with this.

ICANN has 4 areas of concern: the root servers, PSO issues, ASO
issues, and DNSO issues.  Most people, myself included, believe that 
far and away the most potential for legal action, at least in the 
short term, comes from the DNSO.  The number one priority of the 
white paper, and the number one priority of ICANN, is stability of 
the net.  

Therefore, ICANN is building legal firewalls between these 4 areas,
so that legal threats to one won't impact another.  While my
preferred model would be the SOs as essentially committees or
divisions of ICANN, I can understand the desire to build these legal
firewalls.

Bear in mind that these firewalls are more for the protection of the 
other areas than they are for the DNSO.  

> Kent Crispin a écrit:
> 
> > We could try to convince ICANN to do things differently, but I
> > suspect that would be a lost cause -- they obviously consulted with
> > their attorneys before making this decision, and have made plans
> > based on the structural and legal implications of the SOs being
> > separate organizations. 
> 
> Then the DNSO must consult with ITS lawyers, not in order to incorporate 
> but to find out if incorporating under these new arrangements is 
> advantageous or disadvantageous for the DNSO. Nobody is going to just 
> sign on to a legal arrangement in which they accept liability for 
> another corporation's decisions.

That is precisely the point -- no one is going to belong to the ASO, 
for example, if the ASO is likely to be liable for ICANN's decisions 
vis a vis the DNSO.  These legal firewalls block liability in all 
directions.  They shield the DNSO from lawsuits against ICANN at the 
same time that they protect ICANN against lawsuits against the DNSO.

> The DNSO is going to lose its 
> membership if we do this, and the ORSC or another will get them.
> 
> > And pressing that case would take a lot
> > of time...I don't want to foreclose the possiblity of approaching
> > ICANN, but I don't want to hold my breath waiting for them to change
> > their minds, either.
> > 
> > So I suggest we proceed as if we need to incorporate.  At least, we
> > should get all our ducks in order to cover that eventuality.
> 
> We have to decide, with the help of lawyers, if the DNSO can accept
> these conditions. If not, we cannot follow the ICANN's self-serving
> pronouncements. If the DNSO is to become a corporation, it's got to
> know what it's getting itself into. That's just common sense, isn't it?

I agree.  David Maher is a lawyer, and has been very much in favor of
the DNSO being part of ICANN.  Amadeu is also a lawyer. 
Unfortunately, the holidays are upon us, and they are probably
otherwise occupied.  But I am sure we will hear their opinion soon.

> > One of the characteristics of the INTA draft is that it has a rather
> > heavyweight corporate structure.  The PSO, on the other hand, is
> > discussing a *very* lightweight corporate structure.
> > 
> > Personally, I much prefer the lightweight approach.  Speaking off the
> > top of my non-lawyer head, I think we could charge certain members of
> > the names council with being the corporate officers/BoD, under the
> > complete control of the names council.  I believe then we need to add
> > clauses concerning the selection of these officers.  We would also
> > need to create a bit of financial mechanism, because now the dnso
> > corp needs to manage its own funds.
> 
> Manage its own funds, and support ICANN, while we are being sued for 
> ICANN's decisions, without asistance from them. Yeah, sure. Who's going 
> to agree to that, Kent?

If that were all there was to it, nobody.  But there is more to it. 
Besides, if we were part of ICANN we would be sued for ICANN's
decisions anyway :-)

> > But this raises a very delicate question, which we might as well get
> > to right now: if we must incorporate, where shall we do it?
> > 
> > Here are some choices:
> > 
> > California Public Benefit corp, just like ICANN
> > Delaware corp
> > Swiss non-profit association
> > ??
> 
> If the DNSO incorporates, it should investigate Luxembourg, the Caribbean
> Islands, and the Channel Islands.

Yum.  The Caribbean.  Sounds good to me.

> > I understand the sensitivity of non-US members to the idea of
> > incorporating in the US.  On the other hand, I think the quickest
> > possible incorporation would be to duplicate ICANN's bylaws and
> > articles, make the necessary changes, and go with them.  This would
> > put ICANN and DNSO in the same legal jurisdiction, which might be an
> > advantage or disadvantage.
> 
> Are you joking? Duplicate the ICANN's bylaws? Do you have a tendency to
> suicide?

You missed an important clause in what I said:  "make the necessary 
changes".  That is, use the boilerplate; replace the meat with what 
we have in our application.

> What, are we the slaves of the ICANN Board, or of Joe Sims? What
> are you talking about, copy their bylaws after all the work that's been done
> by people from all over the world at the DNSO meetings, and then incorporate
> in the same jurisdiction so that ICANN can manipulate us at will? What are
> you trying to do? Ruin the DNSO? No one's going to sign their name and their
> company's name to that. This is madness.

In my trade it is known as hacking -- you take a working piece of 
code, somewhat similar to what you want, take out the parts you 
don't want, put in the new stuff you do want -- it turns out that a 
lot of code is effectively boilerplate, and can be reused without 
much change.

> > Comments please?  We will need to move fairly quickly...
> 
> Sure, let's just cut our wrists. There's nothing faster than that.

I was hoping for something a little more positive in tone.

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