Re[2]: [wg-c] GTLD Straw poll

["William X. Walsh" <william@dso.net>]

Kent, your response below is so transparent, it needs no refutation,
it refutes itself.

But for those that are not familiar with you and your position, lets
cover them anyway.

Tuesday, August 17, 1999, 11:21:04 PM, Kent Crispin <kent@songbird.com> wrote:

> 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... 

Hmm, looks to me like we are seeing co-operation of a reasonable
contract.  ALL of your concerns above are addressable.

If contracts were such a bad instrument of enforcing restrictions in
business relationships, then the corporate world is in big trouble.

Jurisdiction is not an issue, and you know this.  I suggest you talk
to a good contract attorney, Kent. None of your points above are
salient.

As to NSI's contract, well that "contract" (note: its not really a
contract) is a poorly written instrument without many specifics.  The
times have changed from when it was originally written, and we have
learned a lot from that mistake.

> 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.

Contraints must be justified.  You haven't shown why contractual
obligations are not sufficient.  You support what is really a
Draconian measure that places unnecessary restrictions without basis.

The abuses can be prevented by making the contract strong enough.
ICANN is paying Sims enough that strong contracts properly executed
should not be a concern.  Also we have enough experienced corporate
attorneys on this list to volunteer appropriate language.

I for one have upmost confidence in their ability.  Don't you?

>> 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.

This is absolutely the best case of splitting hairs I have seen yet on
this workgroup list.  Nice to see you continuing your tradition.

The best way to prevent a monopoly is to have competition, with
minimal regulation only to cover essential areas requiring protection.

This is the way that EVERY industry, including those that are
considered highly regulatory, is conducted.

Even the pharmaceutical industry, which is MUCH more vital and much
more important than these petty domain name squabbles, have more
looser restrictions than what you propose.  And talk about MONOPOLY!
A company coming up with a new vital drug has a total and complete
monopoly over that drug.

But adequate safeguards are in place, the minimum required to address
valid concerns, without Draconian measures.

If it works for such a huge industry, where the stakes are literally
life and death, and the opportunities for exploit FAR greater (we are
talking BILLIONS of dollars) I see no reason the simple approach of
minimal regulation can't work to address almost all of the concerns
that the various stakeholders would have in this process.

--
William X. Walsh - DSo Internet Services
Email: william@dso.net  Fax:(209) 671-7934
Editor of http://www.dnspolicy.com/

(IDNO MEMBER)
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