RE: [wg-b] food for thought

["Roeland M.J. Meyer" <rmeyer@mhsc.com>]

> From: Harald Tveit Alvestrand [mailto:Harald@Alvestrand.no]
> Sent: Thursday, September 23, 1999 12:53 PM
>
> At 11:51 23.09.99 -0700, Roeland M.J. Meyer wrote:

> >to. Anything else is strictly courtesy. There are procedura channels
> >extant which will bring issues into those jurisdictions. They are
> >adequate. It is strictly a matter of process and procedure.
> Well known
> >process and procedure at that.
>
> If these processes and procedures are so well known, how come
> all those
> lawyer guys think there is a problem?

For a registry in the US, it is not a problem (read Lanham Act and WIPO
treaty signatory). Where it becomes a problem is where a registry is
located in a jurisdiction that makes this difficult. Not every nation is
a signatory. IMHO, this is a meta-problem that we are definitely NOT
going to be able to solve herein.

> The NSI "policy" ruled that rights registered with the US PTO
> were superior  to rights registered with the UK (or Egyptian, or
> Palestinian) PTO with  regards to registration in .com.

Firstly, I don't recall NSI taking any such stance, either officially or
not. However, as a practical matter, NSI has a corporate charter
governed by the Commonwealth of Virginia and whatever over arching
regulation are enforced by the US Federal government. In addition, the
contract for COM/NET/ORG is specifically under control of the
USNTIA/DOC. I would definitely call that a special case.That US Federal
law would supercede any and all other regulatory attempts does not
surprise me. Nor should it surprise you either. When it comes to a
conflict of jurisdictions, the local gandarmes will always win. It's an
issue of nearest credible force, with the emphasis on "force".

> Following your principle of "locality" means that all registries and
> registrars for a single domain must be located in a single
> jurisdiction, or  else there will be no coherent policy among them.

This is not necessarily true. Besides, between different registries, why
can't we have some difference of policy. We have that now, between ARIN,
APNIC, and RIPE. Nothing is falling apart becasue of it.

> For the case of domains marketed as "global", I think that's
> unworkable,  unreasonable and unacceptable.

You are aware that all police agencies, in the US, are armed? It may be
unacceptable to you, but when they come knocking on the door, you WILL
comply. When the local judge tells to to shutdown your servers, you will
comply. A Norwegian magistrate would not be able to intervene until well
after the fact.

A judge, in Oklahoma, shutdown and arrested a BBS, in California, due to
laws violated in Oklahoma. The mechanism was implemented via US Federal
postal regulations. Ergo, even the fact that the material was legal
within California, Federal regulation enforced Oklahoma law, on a
California system, via Interstate commerce law. Personally, I find this
case egregious and repugnent, the couple involved only ever saw Oklahoma
from the inside of a jail cell. However, it does highlight the
effectiveness of local law enforcement "deadly force" applied in a local
situation. California was not about to go to war with the federal
government.

The "Ruby Ridge" incident (ID) and the Koresh incident (Waco, TX) are
also cases where deadly force was applied, over minor or fabricated
offences. The government apologized for the Ruby Ridge incident, but the
mans wife and child are still dead.

The lesson is clear. For a US-based company, US law will prevail. For a
foriegn company, housed on US soil, US law will prevail, over US-based
assets. For a US company, housed on Norwegian soil, Norwegian law will
prevail over Norwegian-based assets, but US-based assets are governed by
US law. No matter how "unworkable,  unreasonable and unacceptable" that
may appear to you. It's reality ... what a concept ...