The SOs, as defined in the ICANN bylaws, are not companies. They're
integral structures within ICANN. The companies and other entities that
may send representatives to the SOs are incorporated and can quite well
protect their people.
> Perhaps individuals and smaller
> companies would be willing to participate and assume the risk of making
> policy decisions subject to their own personal liability, but I suspect
> that many of my legal brethren would counsel their clients and/or company
> employees to avoid unincoporated, policy-making SOs like the plague.
> There's no reason to disenfranchise the risk averse. But this may be an
> academic issue, because of the next question you present...
>
> >Don't you imagine that the ICANN board will be very
> >interested in maintaining as much legal insulation as it possibly can
> >for ICANN and all its members? Wouldn't it be the case that almost
> >all suits against ICANN would name the DNSOcorp as well?
>
> Yes. I cannot imagine that ICANN will let an SO be hung out to dry on
> liablity issues. What they will likely do (based solely on my reading of
> the tea leaves and what seems logical) is bring an unincorporated
> association under the umbrella of ICANN's corporate form, (and perhaps purchase its own liability insurance), or
> agree to defend and indemnity the SO for any liability.
The SOs are already under the umbrella of the ICANN's corporate form.
Why do you and the other lawyers obfuscating and blowing up this
non-issue discuss the SOs as if they were separate from or outside
ICANN? Is it because the ICANN bylaws call them supporting
"organizations"? Alright, call them counsels, or committees, or whatever
you please. But please don't continue discussing them in the framework
of an untrue characterization.
You really must cease this dishonesty.
If you want to wreck ICANN by subverting its bylaws, you are not going
to succeed. And if you want more and more liable entities so that you
can have more work later in defending them, please go elsewhere; the
Internet doesn't need to repeat the mistakes of government
bureaucracies.
The SOs are defined, and their existence created, by specific bylaws of
ICANN, and as so defined they are structures of ICANN. What possible
reason can you have for saying things like " bring an unincorporated
association under the umbrella of ICANN's corporate form", or "require
the SO to incorporate", when they are already incorporated as integral
parts of ICANN? If you want to place them outside ICANN, then say so and
try to change the ICANN bylaws to reflect this. But please do not go on
pretending that they are already outside ICANN and need to be brought
within. That is simply not so.
> As to the fact that any lawsuit will be against both ICANN and the DNSO,
> you're correct. But this doesn't insulate the DNSO from its own liability
> if it remains an unincorporated association.
This is just more of the same nonsense. No lawsuit need be against "both
ICANN and the DNSO", since the DNSO is ICANN, or at least a part of it.
The SOs, again, are not defined as associations, incorporated or
unincorporated. They are defined as structures comprising ICANN.
The lawyers who tricked the pretendents to the PSO and ASO into
accepting their misleading and dishonest characterization of those
SOs apparently were dealing with naive people who could
be manipulated easily. I don't think you're going to find the same with
the DNSO. At least, I hope not.
> >My feeling is that the "legal protection" argument is weak.
>
> Not weak, but something that can be controlled through an indemnity
> agreement, insurance, incorporation, or a combination of the above. Legal
> protections always seem like wasted steps until they're needed.
You want to get some fees for researching and negotiating legal
protections? Go and apply for a job with the ICANN Board.
> >A better argument, I think, is the "convenience to ICANN" argument:
> >if the DNSO is a corp, then the recognition of the DNSO would
> >presumably be a contract between the two corporations. It would be
> >simpler to enter into such a contract; and it would be easier to get
> >out of such a contract. [Maybe. I am puzzled by the legal
> >implications of the fact that the DNSO selects 3 board members, and
> >I'm not sure how that fits into a contractual relationship.]
It doesn't fit in. There isn't any contractual relationship between a
Board of Directors and a structure within the organization that has
elected the Board, only the bylaws that define how the Board and the
structure are related. That's all there needs to be. The PSO can't have
both Board members and a contract. They can't be part of ICANN and
separate from ICANN at the same time. And neither can the DNSO. You
people want to get a grip on yourselves.
> Yes. And another (better) argument in favor of a more formal approach
> (whether it's incorportion or just coming up with a tight, well-defined
> set of bylaws) is that it gives ICANN an established entity, with defined
> rules of governance, to tap as the DNSO. (But I've sounded this note so
> often I'm becoming a broken record.) If we're asking ICANN to tap a new,
> unknown association as the DNSO (requiring a large act of faith on the
> part of ICANN), we ought to at least give the Board a fully formed
> entity, with established rules of governance, to review and recognize.
The assumptions that this argument are based on are untrue. The SOs are
established by ICANN, not by themselves. Their rules of governance are
the ICANN bylaws, not their own. The people who have formed the DNSO
realize this, which is why they're writing an application and not
bylaws. ICANN isn't being asked to "tap into an unknown association" for
the simple and obvious fact that the DNSO isn't an association; it's a
structure of ICANN. You want to change this? Then change the bylaws,
wreck ICANN as it's been constituted, and put us back to square one.
> >Three arguments against come to mind: first, we are creating a huge
> >amount of unnecessary mechanism; second, by being a part if ICANN we
> >automatically meet all the transparency etc requirements, but there
> >are always possibilities of conflicting interpretation when there are
> >separate corporations; and third, there are a bunch of additional
> >issues involved in creation of a corporation -- eg, where should it
> >be incorporated? [probably not the US...].
>
> Let me address these in turn. First, I don't see incorporation as a huge
> deal. The hard part is drafting Bylaws that everyone can deal with (no
> small task), but the filing formalities are minimal, the cost nominal,
> and the corporate formalities that a new DNSO corp would need to follow
> throughout the year are easy to follow.
Sure, it's easy to make trouble. Anything can incorporate. Then you can
sit around and look at all those nice formal, legal-looking papers that
make you feel secure and important, as if you'd accomplished something
useful because you've got a bunch of signed and stamped pages. But all
you accomplish is to set up organisms conflicting with ICANN and with
each other.
Einar Steffurud is suggesting incorporating the ORSC as a DNSO. They've
already registered DNSO.COM and DNSO.NET. So what? I can register
DNSO.NY.US. Will that mean that I have a voice in ICANN's membership or
Board, or that ICANN should negotiate with me for DNS in New York?
Why don't you all grow up?
> Second, ICANN transparency sets a minimal standard; the DNSO should be at
> least as transparent, and could even set a better example.
The DNSO, like the other SOs, can only be as transparent as ICANN is,
since they're part of ICANN.
If you want the DNSO to be able to make DNS decisions without ICANN,
then write up new bylaws and see if you can get the DOC to accept them
and throw out the ICANN.
> As for the
> conflict issues, as I noted in a previous post, these may not be a
> concern in the present case, as the roles are clearly defined. ICANN is
> on top, and any conflicts are resolved in its favor.
Any conflicts are resolved within ICANN, not between ICANN and the DNSO,
since the DNSO is part of ICANN. Stop looking to make work for lawyers.
> Finally, there isn't really much to incorporating a non-profit other than
> what I've set out above. It's not rocket-science, and people have been
> known (so I hear) to do it successfully even without the assistance of a
> lawyer.
But it's better to have one, right? And then, once they've incorporated,
and people start accusing them of invading their freedom of enterprise,
why of course they'll have to go to the lawyer who incorporated them for
advice on what to do about it. If the lawyers can get enough people and
groups to incorporate, and these are infringing the same freedoms, you
might even be able to convince them that an umbrella legal entity could
handle their problems (which were created by you in the first place),
and then you can start another WIPO. Pretty soon you're on your way to
the "world Internet government", to which, in addition to your legal
fees, you can add salaries as politicians. Good work, lawyers!
> Also, for a non-profit, I don't see much advantage to the choice
> of state of incorporation, though I'll defer to any corporate lawyers on
> the list.
Sure, let's hear from some corporate lawyers. Or, if there aren't any
around, let's go out and find some. There aren't enough lawyers involved
in this, only five or six on the ICANN Membershiop Advisory Committee,
and one who appointed the ICANN Board. We need more corporate lawyers.
How about some more public sector intellectual property lawyers, to
counterbalance all the trademark lawyers who have tricked the DNSO into
holding a meeting just for them in January, to which we'll all have to
go in order to stop them from manipulating the DNSO and taking it over?
And then we'll need some contract lawyers (at least one for each SO, and
maybe one for each contract), and some insurance lawyers, and some
investment counsellors for the ICANN membership's health insurance fund,
and ...
> I agree with you comment that these issues need further exploration, and
> I make these comments in that spirit.
Absolutely! More and more discussion of extraneous bullshit that
requires lawyers to deal with.