Hello Judyth:
Well said. Thank you.
Regards,
Micheal Sherrill
---------- Original Message ----------------------------------
From: espresso@e-scape.net
Date: Mon, 23 Sep 2002 14:59:10 -0400
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
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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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