Re: [icann-eu] Does the ICANN legally exist (this is not a joke)?

[Jefsey Morfin <jefsey@wanadoo.fr>]

Dear Jeff,
You have crossposted a response I partly disagree with and Alexander's
previous position I totally disagree with to the copied people who were not
copied of my initial post you discuss.

You therefore oblige me to straighten the things as it may create a real
confusion.

1. I ask a complex legal/tax question to Louis Touton and then on several
     MLs because of a leak because I think their Members are educated
     enough to find and document a competent specialist to address it.

     This question is to know if the laws of their country allow a local
     corporation to validly contract and pay the ICANN which is a "dead
     hand" corporation (without any holder), and if yes if restrictions apply.

2. In a post-scriptum I documented a simple response to that situation
     (I experimented as obvious to questionned uninformed stakeholders),
     which is to consider the root as the directory of ICANN Members.

     Reminded by Mike Roberts of the "Mebership analysis" document,
     I explained that this very precise document is the reason why I used
     the plain word "Member" (according to its "V.1" points which defaults
     "Statutory Member" to "Member") as the foreign laws would also use
     it in the same meaning. I also explained that this document was not
     not even considering the international essence of the ICANN and,
     since it summarizes the reflexion carried on Membership in
     establishing the ICANN, this subject could not be considered as yet
     even discussed. I added that IMHO this lack of analysis is the origin
     of all the difficulties currently faced by the ICANN.

3. In that post-scriptum I developped a natural "cooperative" alternative
     to the current "corporate" model of the ICANN.

     IMHO this model is writen in every page of the White Paper, in the
     bylaws, in what the ICANN tried and achieved since its begining and
     respond to what cc/gTLDs, individual Domain Name owners, GAC,
     Staff and @large are looking for, while fully respecting the contractual
     rights of the USG and warrantying best the political and technical
     stability of the Network. This model is partly hidden by the current
     over importance of the ".com" TLD (that the ICANN wants to reduce).

     This model is a bottom-up model where internet communities are
     identified through their ISO 3166 TLD. These internet communities
     are represented at Governmental level through the GAC and are
     is supported/informed by their NIC (cf. Best Practice document)
     which they may audit and their government should approve.

     Under this model which calls _no_ change of the present ICANN
     organization and considers the ICANN as the "common house" of
     the Internet Community:

     -  the supervision of the governements (cf. Mike Roberts letter as
        endorsed by the GAC) is assumed through the GAC

     -  the local communities are represented at the NIC level and at
        the BoD level by elected @large Directors (I _do_ favor direct
        election of BoD @large Directors for a better political stability
        of the entire network, once it is a credible constituency of the
        stakeholders [also the interest of the NICs]).

     -  the ICANN is a technical body where NICs may cooperate
        and share concerns among themseleves, with other stakeholders
        and users. It is therefore natural they are its [statutory] Members
        and that every SO representation at the BoD includes a NIC.
        This way the NICs vote and control the ICANN budget without
        taking any overwhelming importance.

     This is absolutely _not_ handing the control of the ICANN to
     ccTLDs !!!  But it makes the relations between the ICANN and
     NICs a ccTLD's right and no more a ccTLD constraint. It should
     therefore be expected a spirit of co-responsibility in the root
     management, stability and development, in multilingual Domain
     Names, in new TLDs applications, in reducing the Digital Divide..

     This model do accepts the main gTLDs as ICANN/GA Members.
     But the NICs are concerned by many other issues than the DN
     issues. Also, the "million" of new TLDs, announced as possible
     by a Director at the GAC open session, should probably not be
     potentially included in the ICANN/GA.


The professionnal responses I get up to now are :

-  reminder about the "Membership analysis" by Mike Roberts.
    I responded as per above..

-  indications of ML Members having passed and explained the
    legal/tax... question to highly specialized lawyers. I do not
    expect much qualified responses before a few days. I did
    not received any comment on the US aspects from Louis
    Touton who was the first questionned two days before any
    other (I wanted him to have more time but a leak to the press
    forced me to post earlier than intended).

-  your comments protecting the gTLDs rights (mainly because
    of a typo which did not mention  them - in the Cooperative
    Model - as belonging to the ICANN/GA..

-  Peter de Blanc's comment (below) you copied to me. As I said
    it is based upon an ncomplete and inexact presentation.

-  @large oriented responses positive but not really documented
    or negative (as Alexander's below) then expressing detailed
    layman [dis]interest+[in]competgence in legal/tax etc... matters.

I also obtained postive layman/uniformed stakeholder positions,
but it should be polled in a professionnal way after a better
education and on a larger number. However the interesting point
is the word "obvious" used by most of them.


At 10:02 08/12/00, Jeff Williams wrote:
>Peter and all,
>We [INEGroup] are in agreement with you completely...
>I believe my response clearly indicates this.
>
>Peter de Blanc wrote:
> > Just to set the record straight, I am not in favor of "handing over 
> ICANN to
> > the ccTLDs and gTLDs"
> >
> > I am in favor of equal representation by various "stakeholders" as the
> > original ICANN plan and philosophy.
> > Peter de Blanc

_Full_ agreement wih Peter.

Stakeholders are both users (@large) and co-operators of the Internet (SOs).
USG's intended "privatization" of the Internet is not to transfer the 
control to
one single corporation but to the Internet Community and to foister 
compeition.
The NICs are co-"network keepers", servicing the LICs and the global Internet
Community.

I say that ICANN should stand for "International Cooperation for ..." (what
everyone one understand) rather than "Internatioal Corporation ..." (what
many resent ... including large International Coporations). There is no owner
in a cooperative: only stakeholders with rights to belong and to control, not
subcontractors with the only obligation to deliver and pay.

I underline that the Cooperative model implies that the local @large (which
should correspond to the whole LIC) are close with the NIC or represented
at the NICs' BoD. (Each country should be free to adapt to local history and
constraints). This is fully in line with the Best Practices. It strictly 
warranties
that the @large constituency will exist, is educated and informed at low cost
and cannot be hijacked by private interests.

Jefsey




To respect your text and for the reader's understanding I retain your
part addressing Alexander's response. I do not respond it as I fully
addressed it above.

> > -----Original Message-----
> > From: Jeff Williams [mailto:jwkckid1@ix.netcom.com]
> > Sent: Thursday, December 07, 2000 6:01 PM
> > To: icann-europe@fitug.de
> > Cc: vinton g. cerf - ISOC; icann board address; Karen Rose; Louis
> > Touton; Peter de Blanc
> > Subject: Re: [icann-eu] Does the ICANN legally exist (this is not a
> > joke)?
> >
> > Alexander and Jefsey,
> >
> >   Jefsey, Alexander is essentially correct here.  I tried to indicate this
> > in my previous response as well.  It does seem reasonable that if the
> > ccTLD registries are to pay a full 1/3 of the ICANN budget, as ICANN
> > is demanding, that they should have seats on the board and the DNSO NC.
> > de Blanc is on the NC currently, but that is not necessarily representative
> > of the ccTLD registries adequately.
> >
> > Alexander, existing gTLD registries can be considered represented
> > in ICANN through the Registry constituency of the DNSO, however
> > this does not give the adaquate ICANN board representation either.
> > In fact, the current ICANN board refuses to recognize most of the
> > existing gTLD registries, deciding that they are "Rogue" in nature.
> > That is a highly subjective evaluation, and as such not reasonable
> > representitive.
> >
> > Alexander Svensson wrote:
> >
> > > Jefsey Morfin wrote:
> > > > "ICANN being a no member corporation, does ICANN exist according the
> > laws
> > > > of your country and if not may a corporation of your country enter into
> > > > legally valid relations with it?"
> > >
> > > Errr... Jefsey,
> > > it seems to me that it is only important whether ICANN
> > > exists according to the laws of California (and the
> > > United States). Your state shouldn't have to approve the
> > > inner workings of an Australian Pty. Ltd., a German e.G.
> > > or an Irish teoranta for you to do business with it --
> > > as long as it is recognized by .au/.de/.ie domestic law.
> > > (I would presume there is an international agreement
> > > roughly equivalent to the Vienna CISG for goods. Lawyers?)
> > >
> > > And it seems to me that it does not violate California
> > > laws, as the CA Corporations Code explicitly provides for
> > > Non Profit Public Benefit Corporations without members
> > > http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=corp
> > >
> > 
> http://www.leginfo.ca.gov/cgi-bin/displaycode?section=corp&group=05001-06000
> > &file=5310-5313
> > >
> > > (For the record: There may of course be good reasons for
> > > ICANN to become a corporation with members, my point is
> > > that ICANN isn't illegal in California because of its
> > > lack of members.)
> > >
> > > From a quick glance at the Corporations Code it looks to
> > > me as if only persons can become members, and the
> > > membership is non-transferable. This doesn't look
> > > favourable for a 'silent takeover' by the ccTLDs without
> > > much ado;
> > >
> > > I'm sorry, but I think you are on the wrong track here,
> > > and I also disagree with handing over ICANN to the ccTLDs
> > > and gTLDs -- this does /not/ fully address the @large
> > > concerns.
> > >
> > > Best regards,
> > > /// Alexander
> >
> > Regards,
> >
> > --
> > Jeffrey A. Williams
> > Spokesman INEGroup (Over 112k members strong!)
> > CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
> > Information Network Eng. Group. INEG. INC.
> > E-Mail jwkckid1@ix.netcom.com
> > Contact Number:  972-447-1800 x1894 or 9236 fwd's to home ph#
> > Address: 5 East Kirkwood Blvd. Grapevine Texas 75208