Re: [wg-review] Constituencies, 1 governance and legality

[Sotiropoulos <sotiris@hermesnetwork.com>]

1/30/01 6:40:04 PM, Kent Crispin <kent@songbird.com> wrote:

>Article II, Section 1:
>
>    The Corporation shall not have members as defined in the California
>    Nonprofit Public Benefit Corporation Law ("CNPBCL"), notwithstanding
>    the use of the term "Member" in these bylaws, in a selection plan
>    adopted by Board resolution, or in any other action of the Board. 
>    Instead, the Corporation shall allow individuals (described in these
>    bylaws as "Members") to participate in the activities of the
>    Corporation as described in this Article II and in a selection plan
>    adopted by Board resolution, and only to the extent set forth in
>    this Article II and in a selection plan adopted by Board resolution. 
>
>I don't know how it could be more plain.  The corporation doesn't have
>members.  (I know that Karl Auerbach has entertaining legal theories. 
>You just have to consider that Karl is a full-time engineer who got a
>law degree, while the bylaws were written by full-time lawyers that
>everybody (except Karl) thinks are top notch.)

Well, here's one for the "top-notch lawyers".  How is it possible for an Organization that claims tax exemption and 
all other *benefits* of a Non-Profit Organization, to be able to bend the State of California's Corporation Code Law, 
simply because it says so in the By-Laws of the selfsame and declared Non-Profit Organization?  Does ICANN also 
have authority over the Laws of the State of California?  Are these top-notch lawyers aware that there is REAL 
world outside their WORDS.  How is such a thing possible, legally?  This position is a sinking ship... I can see the 
rats bailing already.  Put on a life-jacket Kent.

>> In this case they are
>> members of the Internet Community as a whole.( again this is a quote
>> from a binding legal document or as you like to say contract)  So now
>> when you talk about contracts, let us be clear the corporation is only
>> really binding it's stockholders interest in the corporation.  Therefore
>> when ICANN signs a contract they do it on my behalf as a member. (see
>> derivative actions against corporations)
>
>ICANN doesn't have members.  Article II, Section 1

Not only does ICANN have members, but they have the power to put 9 Directors on the Board (not 5).

>> Let me put it another way;  If ICANN continues to break it's contractual
>> relationship with it's own members who is going to enter a contract with
>> ICANN.
>
>ICANN doesn't have members.   Article II, Section 1
>
>> I believe what you are really trying to say is that if ICANN does not do
>> what the registries and root servers tell it to do then it will be shut
>> down by those very powerful forces. I love thinly veiled threats.
>
>I have just had an epiphany:  You are hung up on the notion of TELLING 
>PEOPLE WHAT TO DO.  You think the role of ICANN is to tell people what 
>to do, and if ICANN doesn't tell the registries what to do, the 
>registries must tell ICANN what to do.  For you, it is purely a matter 
>of who has power; who gets to "tell people what to do".
>
>That's not the way it is.  The relationship between ICANN and the
>registries *must be* a cooperative one, a relationship of mutual
>benefit.  ICANN offers a number of valuable services to the registries,
>one of which is collecting community feedback.  This is a very different
>thing from being *ruled* by the community.  ICANN operates *for* the
>benefit of the community.  It is not operated *by* the community. 
>
>> Just
>> remember by law and history the CORPORATION is its MEMBERS(in for profit
>> parlance, stockholders).
>
>ICANN doesn't have members.   Article II, Section 1
>
>> I dare these megacorp registries to take their contracts elsewhere, as a
>> matter of fact I know of some engines that could replace Network
>> Solutions tomorrow.  Keep in mind that in your corporate world ICANN is
>> a monopoly.
>
>Yep, I know that very well.  That is why I keep repeating that the true 
>oversight over ICANN is anti trust authorities.
>
>> If it follows it's mandate and allows grass root
>> representation of the "Internet Community as a Whole" it can fare very
>> well.
>> 
>> One last point your comments suggest that we should investigate the use
>> of constituencies and contracts with registries for forms of insider
>> trading and self dealing.
>
>Hmm.  Maybe something is sinking in -- I have been saying repeatedly 
>that the fundamental legal issue with ICANN is anti-trust.  Maybe you 
>are starting to understand that.  A bit of progress.

Anti-trust violation by a *Not-for-Profit Organization*, hmm?  Thanks, Kent, that pretty much explodes your windbag.  
 

Cheers!




Sotiris Sotiropoulos
          Hermes Network, Inc. 


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