Re: [ifwp] Re: DNSO documents
David W. Maher (dwmaher@ibm.net)
Fri, 25 Dec 1998 00:15:47 -0600
Michael:
First: I'm flattered by the request. Second, speaking as a lawyer licensed
in U.S. jurisdictions, I recognize the concerns of ICANN for the likelihood
of litigation and its inevitable expense. Everybody should be aware that
the problem is NOT one of winning a lawsuit. If the DNSO is properly set up
and reflects a truly global consensus with fair procedures, etc., it will
have substantive defenses to any claims that might be made. This, however,
is only half the problem. The other half is that litigation is VERY
expensive, not only in the US, but in most other countries as well.
Defending a just cause will cost a great deal of money, and insurance, at
least at the beginning, may be either unavailable or itself extremely costly.
The question we face is whether to accept ICANN's current position, which
suggests that the SOs incorporate and arrange for their own liability
insurance, or, on the other hand, attempt to persuade ICANN that this
position is short sighted. I am copying Mike Roberts and Joe Sims with this
message with my own views on the subject.
I would like to suggest to ICANN that it rethink its position and find a
way to include the SOs in the corporate structure of ICANN, so that actions
of the SOs within the scope of the corporate purposes of ICANN are covered
by ICANN's liability insurance. This would have the additional benefit of
significant decrease in the bureaucracy that is now contemplated by the
proposals for a separate incorporated DNSO.
Feliz Navidad and Happy Holidays to all who are celebrating.
David Maher
At 03:20 AM 12/23/98 -0500, Michael Sondow wrote:
>I would like to see a closely reasoned analysis of this whole subject by
David
>Maher before any decisions are made. Everyone who will be asked to sign
the DNSO
>application, or bylaws, or whatever the hell it is, has a right to know just
>exactly what they are getting into.
>
>
>Roberto Gaetano a écrit:
>>
>> John,
>>
>> You wrote:
>>
>> > Section 9 of ICANN's press release makes it clear that the SO's are to be
>> > legally separate from ICANN.
>> >
>> Not that I don't trust you, but, as you mentioned later in your message,
>> YANAL (TGNDI, thanks God, neither do I).
>>
>> Can I have a clear confirmation (in words that a layman with average IQ
like
>> myself can understand) that
>>
>> It is intended that Supporting Organizations and their councils will have a
>> separate organizational identity from that of ICANN, and that ICANN's
>> relationship with the SO's, to the extent necessary apart from the bylaws,
>> will be by contract.
>>
>> means that the DNSO must be incorporated separately?
>> In other words, separate organizational identity cannot mean a separate
>> division within the ICANN Corporation?
>>
>> If the answer is that we have to incorporate, we may have one point less to
>> discuss, and can concentrate on what Bret Fausett suggested, i.e. start
>> writing Bylaws (and start thinking about where to incorporate).
>>
>> Regards
>> Roberto
>
>