Re: [atlarge-discuss] Democratic process (was Re: [atlarge-discuss] encouragement)

["NameCritic" <chris1@telnor.net>]

hello everyone. I haven't been around for awhile, but I decided to rejoin
the effort.

I have a question, as I am just catching up on the discussion regarding the
use of the domain name icannatlarge.org and what seems to be some worry
about a trademark infringement?

Am I understanding the conversation correctly?

I'm no lawyer, although those on the list that know me will tell you I have
a good understanding of the UDRP, Domain Name Disputes in general, and what
constitutes a trademark violation.

Truth is anyone can make a claim that the use of their name within a domain
name is a violation. Claiming it and proving it are two completely different
things. ICANNatLarge.org would be no more a violation than ICANNSucks.com.
ICANN suing over this name would give them more bad press than they need
therefore even a threat would be futile at best. As I understand it they
have not threatened, but given permission. That would also make any later
attempt an act of futility.

Should someone, anyone, panelist or not, seek legal advice on any issue that
could affect them adversely? As everyone seems to agree, of course they
should. But I would suspect that any lawyer who advises that this domain
name would end up on the wrong side of a legal dispute isn't familiar with
domain name disputes even though he may be familiar with trademark law.

I know, some of you lawyers out there will say that knowing trademark law
automatically means that you understand the nature of domain name disputes.
It doesn't. The days of trademark law being way over-extended, well beyond
it's boundaries, during domain name disputes isn't over, but won't last that
much longer.

Anyway, as I said, I definitely am short on information having just rejoined
these discussions and may have missed a lot, rendering my point moot. Be
your own judge of that and update me.

btw, hello Joanna, Bruce, Jeffrey, and everyone else still around that I
know, even those that didn't miss my absence at all.

I think I'll go search up some really cool domain names that have ICANN in
the name. I have one. I went to that registry, can't remember the name of
it, where you can create your own tld and domain name to go with it on the
fly about 8 months ago and filed PinkyAndTheBrain.ICANNBoD to commemorate
their "I'm gonna take over the world" mentality.

I'm sure they have improved in leaps and bounds by now and are completely
transparent and democratic as they said they would be. To find out any
different would shake the foundations of my belief in justice and humanity
in general.

Chris McElroy aka NameCritic

"If computers get too powerful, we can organize them into a committee --
that will do them in."
Bradley's Bromide


----- Original Message -----
From: <espresso@e-scape.net>
To: <atlarge-discuss@lists.fitug.de>
Sent: Monday, September 23, 2002 11:59 AM
Subject: [atlarge-discuss] Democratic process (was Re: [atlarge-discuss]
encouragement)


Hello, all,

Perhaps my comments will be seen by some as unnecessary or undesirable. If
so, I apologize. However, I am far too busy to continue conducting multiple
off-list discussions of matters which, to me at least, seem clearly to
belong here where all members can see them.

In one off-list message, I was taken to task for suggesting that Joanna had
been injudicious in wanting to partly-cancel balloting already in progress,
thereby partly disenfranchising those who had already cast their votes. It
was implied that
- that the legal advice was sound and fully justified by the circumstances;
- that Joanna was empowered to do as she saw fit to protect herself even at
the cost of the democratic process within this group;
- that I as a member of this group have no right to question or offer
comments on the decisions of a panelist.

Much as I sympathize with the fear of litigation, I disagree with all three
of those propostions.

1. As has been pointed out, the use of "ICANN" as part of a domain name or
organization name does not in itself constitute trademark infringement, let
alone entail terrible penalties. This area of law is perhaps more likely to
give rise to suits (even frivolous ones) in the United States than elsewhere
but
- we as a group have our "headquarters" outside the U.S.A. since effectively
we exist only as a discussion group based in Germany, where frivolous suits
are not encouraged by the courts
- we as a group have ICANN's blessing (however temporarily that may be) to
use their name in our own
- we as a group have no legal existence at the moment and it is clear that
our Panel and its individual members have absolutely no control over us,
individually or collectively, so they cannot in law be held responsible for
the behaviour of others within the group (I.e., it is *not* the same
situation as for elected directors of an entity with legal status as a
"moral person", where directors are liable for the conduct of the
organization as a whole.)
- the whole area of trademark and copyright law is in a state of flux and
this hypothetical lawsuit falls within a grey area of jurisprudence, and
it's probably academic anyway since I would hope we'd collectively decide to
comply with the first "cease and desist" letter from ICANN's lawyers
indicating they'd reversed their position of tacit and explicit acceptance.

2. I was asked:
>>As a panelist, what would you do?  Defer your risk of individual
>>liability (and by extension that of all the panelists) to a
>>decision by the membership?
and I replied:

>Absolutely! There is surely no difficulty in the Panel collectively issuing
a motion to have the balloting cancelled and a new vote held which does not
include the contentious item, including an explanation of why they feel this
must be done, and asking the membership to ratify that decision by an e-mail
ballot. I can't see more than a handful of lunatics amongst our 1000+
members refusing to see reason. Once the resolution is ratified, there is no
problem at all about sending a new ballot on the name issue.
>
>Given that ICANN itself thus far supports our use of their name in our
domain name, I don't see that the few extra days and attention to due
process would open Joanna or the other Panelists to extra jeopardy. In fact,
this whole issue would have been dealt with already and the new balloting
under way by now if the Panel had taken that route.
>
>My position is simple: if we do not conduct our own affairs properly and
democratically, there is no legitimate reason for us to exist. We will have
no credibility with the organizations we are hoping to influence and no
chance of attracting anyone but the most inexperienced and naive Internet
users to participate in the effort.
>

3. As for the question of whether an ordinary member of the group like
myself has the right to comment on and/or disagree with the actions of
somebody holding an elective position, it should be self-evident that
freedom of expression and the responsibility of the elected to the elected
are the cornerstones of democracy. Without them, what you have is a
pseudo-democratic totalitarianism only inches away from full-blown fascism.

 I doubt any of us needed to join this group to see that sort of thing in
operation, and I have absolutely no desire to belong to --let alone work on
behalf of-- an organization which chooses to operate that way.

May I suggest that the Panel put forward for ratification an immediate
resolution to:

A. adopt _Robert's Rules of Order_ or any other established manual of
procedure (Bourinot, Hansard, or whatever else you like) as the basis on
which this organization-to-be will conduct its affairs henceforth;

B. EITHER count all ballots in the vote on a name *without* dropping
"icannatlarge.org" and publish the tabulated results (followed, if need be,
by a resolution to set aside that ballot and vote again);
   OR cancel that vote and destroy all ballots and tabulations without
further ado, and send out a new ballot without the "icannatlarge.org" option
so as to obtain an unskewed result;

C. specify the procedure whereby the Panel or the membership can put forward
future resolutions and conduct balloting in accordance with accepted
democratic norms.

It's only my opinion, of course, but I believe that without immediate
progress to clarify how we are to conduct our affairs properly, this group
is doomed to futility and the kind of ad hoc decision-making from the "top"
which negates our claim to be seeking democratization of Internet
governance.

Sincerely,

Judyth



##########################################################
Judyth Mermelstein     "cogito ergo lego ergo cogito..."
Montreal, QC           <espresso@e-scape.net>
##########################################################
"A word to the wise is sufficient. For others, use more."
##########################################################



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