At 10:29 AM 12/4/98 -0500, Ken Stubbs wrote:
>hello all:
>
>personally i believe that the decision to accept any SO application should
>not be influenced by the legal structure of the specific SO.
>
>if the specific purpose of a SO is to make recommendations to ICANN for
>specific actions,policies, etc. ultimately to be established and enacted by
>ICANN. and:
>
>ICANN specifically takes unto itself ultimate responsibility for evaluation
>of the recommendation ,making,modifying, ratifying,rejecting or enacting
>these recommendations then;
>
>why should ICANN require and why is it necessary that the SO to insulate
>itself legally from any decision that ICANN has control over making ?
>
>to me this just imposes an additional cost burden on the SO's which
>ultimately will be passed on down the road somewhere.
>
>someone please help me out on this ...
>
>ken stubbs
>
>-----Original Message-----
>From: Antony Van Couvering <avc@interport.net>
>To: Michael Sondow <msondow@iciiu.org>
>Cc: discuss <discuss@dnso.org>; participants@dnso.org
><participants@dnso.org>; transition@dnso.org <transition@dnso.org>
>Date: Friday, December 04, 1998 3:35 AM
>Subject: RE: Fw: SO structure - private
>
>
>>I'd like to note for the record that yes indeed we all decided to
>>concentrate on the non-incorporated option, but that was because there was
>a
>>strong case made that this was all that ICANN would accept.
>>
>>If that in fact is not the case, as it now appears, that sheds an entirely
>>different light on the question.
>>
>>Antony
>>
>>> -----Original Message-----
>>> From: owner-transition@itu.int [mailto:owner-transition@itu.int]On
>>> Behalf Of Michael Sondow
>>> Sent: Thursday, December 03, 1998 10:54 PM
>>> To: Dr Eberhard W Lisse; Carsten Schiefner
>>> Cc: discuss; participants@dnso.org; transition@dnso.org
>>> Subject: Re: Fw: SO structure - private
>>>
>>>
>>> Eberhard, Carsten and all-
>>>
>>> Just because the (potential) PSO and ASO may be incorporating, that
>>> doesn't mean the DNSO must follow them. We can choose not to if we wish.
>>> Carsten's right, there was a majority in Monterrey for not
>>> incorporating. It's not just a question of legal accountability,
>>> although that is an important question, but also of whether the DNSO
>>> wants to set itself as a separate organization from ICANN and "pull the
>>> teeth" of ICANN's authority.
>>>
>>> Furthermore, incorporating separately means the memberships of ICANN and
>>> of the DNSO are separate. This is a very big step to take, because the
>>> ICANN bylaws place the SOs within its membership structure, don't
>>> forget. If the SOs are separate corporate entities, they must not only
>>> have separate bylaws but a separate membership and a separate BoD. This
>>> is setting up an adversarial relationship with ICANN, and weakens it
>>> considerably. This may be a bad thing to do, at this point.
>>>
>>> Autonomy? For what purpose? ICANN will still have the authority, if the
>>> USG continues its present course. And that course depends on arriving at
>>> a consolidated self-governing body, not four or five different bodies.
>>> The SOs were envisaged as advisory councils for ICANN, not as distinct
>>> organizations. How can the authority to decide on domain name, protocol,
>>> and addressing policy be made by both ICANN and the SOs? Maybe what some
>>> people want is for only the SOs to make policy, separately from ICANN,
>>> but then the ICANN bylaws must be rewritten. This means going back to
>>> where we were in June.
>>>
>>> The lawyers for the PSO and ASO counselled them to incorporate,
>>> apparently. But we must ask ourselves why they did this. Was it for the
>>> good of ICANN and the good of the Internet, or was it perhaps because
>>> the lawyers wanted to represent the SOs and get nice fat fees for
>>> defending the SOs when they get sued? Were these lawyers Internet
>>> people, ware of the complexities of the present situation and its
>>> history? Aware that hundreds or thousands of people have been trying to
>>> find a consensus approach to the NewCo? It doesn't sound like it.
>>>
>>> Frankly, if I were counsel to ICANN, I would tell them not to recognize
>>> these SOs that are incorporating separately, if my interest was in
>>> seeing the ICANN accomplish its mission of focussing all the disparate
>>> contingents and finding a way of making policy from consensus. If, on
>>> the contrary, my interest was in legally protecting the ICANN Board,
>>> sure, it's great for the SOs to be accountable separately from ICANN.
>>> But it could be bad for the Internet, and it's certainly not what
>>> everyone involved in these disputes for so long has been hoping for. It
>>> is, in a way, institutionalizing the failure of ICANN before it has a
>>> chance to get started.
>>>
>>> We should keep in mind, I think, that these self-appointed SOs are
>>> illegitimate. Their legitimacy comes from ICANN, not from incorporating.
>>> The ORSC, for instance, incorporated when they wrote their bylaws, which
>>> they sent to the NTIA, but that didn't make them ipso facto a competitor
>>> with ICANN for recognition as the NewCo. Likewise the IETF and whoever
>>> has incorporated as the ASO, the registries and such, are making a huge
>>> pretense by incorporating as the PSO and ASO. There has been no open
>>> process by which their memberships and bylaws have been decided. By what
>>> right do they incorporate as SOs? If ICANN has been created by a less
>>> than open process, these SOs are far worse, and have gone against the
>>> intention of ICANN's bylaws, which have been accepted as a workable
>>> basis for the NewCo by the USG and almost everyone else. By
>>> incorporating, these groups who now call themselves the PSO and ASO have
>>> become outlaw SOs, not because they separate themselves from ICANN but
>>> because they have yet no right to be the SOs, which were created by the
>>> ICANN bylaws and must follow the ICANN bylaws in order to be legitimate.
>>> The DNSO, on the other hand, has never done this; it was not formed to
>>> incorporate as the DNSO but in order to present a proposal to the ICANN,
>>> in keeping with the spirit of the process that is under way, and derives
>>> its openness, legitimacy, and self-respect from this position.
>>>
>>> Speaking for myself, I like to do things in a straightforward way.
>>> Either I go along with ICANN and help to influence them to realize their
>>> mission, which means creating a DNSO that's part of ICANN, that IS the
>>> ICANN, or I join an organization - the DNSO or some other - that's
>>> opposed to or competing with the ICANN. But I don't play this divisive
>>> game and ruin ICANN's chances of succeeding.
>>>
>>> Personally, I think that the people who organized this DNSO that we are
>>> involved in have had the right approach - to follow the structure set up
>>> in the ICANN's bylaws - and see if it can be made to work. To start
>>> creating separate entities without open process, causing legal conflicts
>>> and membership confrontations (who will be a member of ICANN and who a
>>> member of the DNSO, if they are separate?) at this stage is, for me, a
>>> big mistake.
>>>
>>>
>>> Dr Eberhard W Lisse a écrit:
>>> >
>>> > In message <3666DE4B.9FF53C4F@tcpip-gmbh.de>, Carsten Schiefner writes:
>>> > > Dr Eberhard W Lisse wrote:
>>> >
>>> > > > I think too, we should incorporate (in Delaware or
>>> somewhere similar).
>>> > >
>>> > > Could someone please tell me what the reason is for this change in
>>> > > mind cause AFAIR in Monterrey almost everybody has agreed _not_ to
>>> > > incorporate.
>>> >
>>> > I was always for incorporating :-)-O
>>> >
>>> > It's not an issue actually, with regards to be safe from law suits,
>>> > whether DNSO is part of ICANN or independent. The persons running it
>>> > must be protected and are in both modes if I am not mistaken. But it
>>> > will give us greater autonomy. And if the other two do it...
>>> >
>>> > el
>>>
>>> --
>>> ============================================================
>>> Concerns about "rights" and "ownership" of domains are
>>> inappropriate. It is appropriate to be concerned about
>>> "responsibilities" and "service" to the community.
>>>
>>> ----- Jon Postel, 1994.
>>> ============================================================
>>> International Congress of Independent Internet Users (ICIIU)
>>> http://www.iciiu.org iciiu@iciiu.org
>>> ============================================================
>>>
>>
>>
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