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

[espresso@e-scape.net]

Hello, all,

My comments are interspersed below.

At 16:55 -0400 2002/09/24, Joanna Lane wrote:
...
>Judyth wrote:
>> > 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.
>
>You are mistaken. Nobody would have been disenfranchised by the Watchdog's
>proposed solution. This was a way to remove an impediment to progress by
>invalidating a choice of name about which we had received legal advice that
>indicated a serious problem may exist. The members were to be advised of an
>extension to the voting period, thereby allowing sufficient time for those
>who had already voted to revote. Multiple ballots are in any case accepted,
>with the last vote being the one counted, so the only change to published
>procedures was to be the extension of the closing date. This decision by the
>Watchdogs was not without precedent. The procedure was established by
>ICANN's DNSO Watchdogs a while ago, approved and executed by the Names
>Council in a comparable situation. In that case it was an election using
>instant run-off votes in which one candidate (Jonathan Weinberg if memory
>serves me correctly) withdrew after voting had already commenced. Rather
>than cancel the vote altogether, or risk a result in which the withdrawn
>candidate was elected, the solution I suggested here was deemed the least
>impediment to progress and therefore in the best interests of the membership
>as a whole. However, in this case, the Panel did not give the Watchdogs any
>formal response to approve or disapprove their recommended course of action,
>which is why we now have some confusion as to what is happening.
>

Forgive the procedural nit-picking, Joanna, but I'm by no means persuaded ICANN is the model we should choose to follow and, absent a decision one way or the other by the Panel (let alone the membership) I do stick by my guns that the voting should have proceded without changes to the ballot, pending a Panel resolution to cancel the result and schedule a new vote.

>> >>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.
>
>I couldn't agree more, and as Chair, my job is to remove impediments to
>progress. On the road to choosing the organization's name, I was trying to
>steer this group towards the expressway and away from the ICANN toll bridge.
>The reverse gives ICANN the upper hand and removes this groups autonomy.
>That may have been an error of judgment on my part, I don't know, but I
>start to scratch my head when I see arguments about how it's not really a
>problem because
>
>1) we're only a discussion list based in Germany,
>2) we're not incorporated in the US,
>3) we're not raising money using the ICANN name,
>4) Jefsey owns the name ICANNATLARGE.ORG

All of these are good, practical reasons why you would not be held personally liable for the putative infringement of the ICANN acronym. Personally, I'm against using the acronym in our name -- amongst other things, it's effectively meaningless to a majority of Internet users and seems to indicate all we will do is complain about ICANN.

I'm sure you *thought* you were doing right by the group in taking the decision out of its hands for the sake of a quick result without the I-word option but I'm equally sure it was an error to do so. Expediency, personal or collective, is not a good reason to dispense with democratic processes.

>Anyway, well done standing your ground. No doubt there are many attorneys
>out there willing to defend you for free. And you don't have to enforce the
>Panel decision to have the registrant of the winning name transfer it to >the organization, and you can decide to incorporate outside US jurisdiction >to deliberately evade any legitimate claims being made against you for
>trademark infringement, and you can start to raise money using the ICANN's
>name hoping that people will realize you're not part of ICANN at all, or
>better still, ask ICANN to raise the money for you. That should bring you a
>lot of credibility with the organizations you are hoping to influence and
>attract the most experienced users to participate in the effort.

Whoa, Nellie! that goes a bit far!

Whether anyone would defend me for free or not (and Lord knows I can't afford a lawsuit either) is quite beside the point. Holding elective office in *any* organization entails certain responsibilities and potential risks. If I recall correctly, your original message on the subject said you were not willing to run this particular risk (which several well-informed people have said is much less than you feared) and were prepared to resign over it.
Personally I don't want you to resign over this nonsense but I do think you should consider the ramifications of unilateral actions of this kind. If anyone wants to sue me for that, so be it.

Secondly, I do not believe it is up to you to enforce a Panel decision -- it's up to the Panel as a whole, not you personally -- and suspect you couldn't actually force an unwilling person to transfer a domain name to the organization but all the owners of the names on the ballot *volunteered* to do so, so I doubt enforcement will be a major problem.

Thirdly, as for incorporating elsewhere "to deliberately evade any legitimate claims being made against you for trademark infringement" -- well, the United States of America is *not* the only country in the world. You might like to note that this group includes members from numerous other countries and that we're well aware we discussed incorporating in Europe long before this trademark nonsense came up. Registering or incorporating somewhere else is neither illegal nor immoral, nor is obeying the laws of the country you're in rather than the laws of some other nation, however convinced it may be that its laws must prevail over everyone else's.

Here in Canada, for example, Apple Auto Glass is a perfectly legal corporation and its use of the word "Apple" does not in any way infringe on the trademark of those American Apple guys who make my Macs. By the way, Canada's relations with the U.S. are generally pretty good and there haven't been a flood of lawsuits "just because" -- the only one that springs to mind is McDonald's trying to sue the McDonald family of Somewhere-or-other, Ontario for having run a restaurant of the same name for 80 years. To our way of thinking, that sort of thing is absurd, and we don't necessarily cave in as soon as somebody tries to bully us because they have more lawyers or more Republicans than we do.

Finally, as to the money-raising issue, I'm really not sure where your 
>...you can start to raise money using the ICANN's name hoping 
>that people will realize you're not part of ICANN at all, or
>better still, ask ICANN to raise the money for you
comes from. As far as I can tell, the only one who really pushed for immediate fundraising was Jeff and he said nothing about doing so under false pretenses. Eric asked politely about our Finance committee and we all know we don't actually have one yet. Nor do we have the legal existence and bank account required before anyone starts fundraising, assuming we have anyone interested in working on that side of things so early in the game. Anyway, I'd bet nobody who ever heard about ICANN would donate a dime to them, and I'd be astonished if anyone will give *us* a dime until we can tell them exactly who we are and what we're doing ... which they'd be hard-pressed to determine from the conversations of the past couple of weeks.

>Now, I'll get back to validating the ballots against the membership list.

Better you than me, especially if they include a whole bunch of duplicates.
I'm not bothering to revote myself and will be somewhat interested to see the results.

Regards,

Judyth



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