Re: [wg-c] GTLD Straw poll

[Kent Crispin <kent@songbird.com>]

On Tue, Aug 17, 1999 at 10:22:11PM -0700, William X. Walsh wrote:
> 
> What is it about mandatory reasonable contractual concerns that don't
> address your concerns?

"In theory there is no difference between theory in practice; in
practice there is".  

Contracts are a fine theoretical basis for doing this, but in
practice the efficacy of contracts depends on a number of external
factors -- how well the contract is written, the jurisdiction you
find yourself in, the amount of money your opponent can spend on
legal talent, how much money your opponent can spend on lobbying
lawmakers and other government officials, and so on.  For example,
NSI is under a contract to the USG.  The USG doesn't seem to be doing
very well with enforcing that contract.

On the other hand, if you write a contract strong enough to be 
cheaply and easily enforcable, people will scream bloody murder 
about how unfair the contract is -- we see good examples of this, as 
well... 

It is far better if the enforcement is not necessary -- it is far 
better if you establish structural constraints in the system that 
prevent the abuses in the first place.

[...]

> I'd like to know what about that approach is it exactly that you do
> not feel is acceptable, and why you would then advocate a much more
> Draconian approach, which really does place ICANN into the "Governance"
> mode that everyone seems to want to avoid it being in.

If the constraints are structural, rather than regulatory, then the 
"Governance" mode is avoided.  For example, if you arrange 
structurally so that the registry cannot be a monopoly profit 
center, then you remove both the incentive and the means to fight 
expensive legal battles, *and* you remove the need for a powerful 
regulatory entity.

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