These are the ICIIU's comments on the most recent DNSO.org application draft
written by Kent Crispin and the DNSO.org drafting team.
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Message-ID: <36A41BE0.87D1A140@iciiu.org>
Date: Tue, 19 Jan 1999 00:45:04 -0500
From: Michael Sondow <msondow@iciiu.org>
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To: Amadeu Abril i Abril <Amadeu@nominalia.com>
CC: transition@dnso.org
Subject: Re: [Fwd: merge5.txt]
References: <36A37FDB.ED815106@nominalia.com>
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ICIIU comments on merge5.txt.
> - A very precise set of bylaws designed to meet the
> requirements of corporate law.
>
> - A charter for a unique Internet-based international
> organization, with no legal precedent.
I have been studying the New York State laws of incorporation for both
for-profit and not-for-profit corporations, which I assume to be not very
different from those of other states. I've been doing this in part because
the ICIIU may incorporate, and in part because I wanted to see for myself
just what constraints on organizational framework derive from corporation
law.
So far as I have been able to tell, the law of corporations, at least
insofar as not-for-profit corporations are concerned, does not oblige a
corporation to adopt a particular form of organizational structure. A board
of directors, for example, is not a requirement of the law. I called the
Office of Corporations at the N.Y. Department of State about this, and was
told that this is so: a corporation can be formed by a single
"incorporator", and no BoD need ever be formed, although in the case of
membership organizations there must be elections and a recall procedure for
any leadership that is created.
In brief, the top-down structure proposed in the INTA bylaws is not a
product of corporate law but of the INTA, and a not-for-profit corporation
can choose to organize itself in many other ways. This lie, that there must
be vertical authority from the top down, as in the INTA proposal and these
bylaws, will be exposed for what it is.
> ================================================================
>
> PROVISIONAL - DRAFT DOCUMENT
>
> DRAFT
>
> January 17, 1998
>
> PROPOSAL FOR
>
> DOMAIN NAME SUPPORTING ORGANIZATION
> Section 2. Membership in Constituencies [4][5]
> 2. Businesses and other organizations: a DNSO member who is any
> other business or organizations (defined as any legally
> constituted organization with a legitimate interest in Domain
> Name issues),[6]
> 6. Trademark and Anti-counterfeiting interests: a DNSO member who
> is an organization representing trademark interests, defined as
> entities whose primary interest is the protection of trademarks
> or the effort to stop trademark counterfeiting and infringement),
> or owners of trademarks [7],
As stated previously, I strongly object to having two separate
constituencies for businesses and trademarks, since these are in effect the
same people and organizations.
> ARTICLE IV. NAMES COUNCIL
>
> Section 1. Purpose and Powers
>
> The Names Council shall act as the executive body of the DNSO. It
> shall also fulfill the role of "Names Council" as described in the
> ICANN Bylaws.
>
> The Names Council shall determine policies regarding TLDs, including
> operation, assignment and management of the domain name system and
> other related subjects, and, in accordance with Article VI, Section
> 3(a)(ii) of ICANN's Bylaws, the Names Council shall make
> recommendations on such subjects to the ICANN Board.
In agreement with the NSI comments, the Names Council should be restricted
to acting as an intermediary between the membership and ICANN, and all
policies emanating from the DNSO should come from the membership and not
originate with the Names Council. If the Names Council can originate policy
and transmit it without subjecting it to a consensus of the membership, what
is the purpose of having a membership except for voting once a year for the
Names Council? As designed above, the membership is just a rubber stamp, and
the DNSO is not a real membership organization.
Furthermore, ICANN's bylaws specifically state that the DNSO will recommend
DNS policy to ICANN, whereas the above text says "shall determine policies".
This is clearly wrong. The person who wrote this has dictatorial tendencies.
> The Names Council shall select three ICANN board member nominees as
> described in ARTICLE IV, Section 10, below.
Sorry, but it's the membership that will select the three ICANN Board
members, not the Names Council. You have really gone too far here in giving
in to the INTA. This will not stand up. No one but the DNSO.org drafting
team, and maybe no one but Kent, is going to accept this. You are digging
the DNSO.org's grave with language like this. The ORSC is going to win a lot
of support from this. You are playing right into their hands.
> The Names Council shall function as the executive authority of the
> DNSO. The Corporate officers, if any, shall
> operate at the direction of the Names Council. [8]
This is an outrage. "Executive authority", indeed! You have accepted the
INTA's authoritarian schema lock, stock and barrel. This is not going to
pass. I will not sign it, probably full half or more of the participants
will not sign such a thing, and none of the ORSC , the BWG, or any of their
many supporters will sign it. You will be so stigmatised by this that you
will have to look for work with your friends in the INTA.
There is absolutely nothing in corporate law that requires such a top-down,
authoritarian structure. To say so is a lie. If you can accept this, or even
suggest it, it is because you don't give two hoots for democracy, consensus,
fairness, or the Internet.
> Section 2. Representative Composition [9]
>
> The Names Council shall consist of 21 [XX] members, elected from time
> to time by the members of the DNSO, following the procedures set
> forth below. In addition, he President of the DNSO shall sit as a
> non-voting ex officio member of the Names Council.
As NSI has pointed out, there is absolutely no need for a President or any
other superfluous officer of the DNSO. A democratic Names Council can
easily, with the active participation of the membership, do all the work of
the DNSO.
> An entity that
> is a member of more than one Constituency may make one nomination for
> each Constituency of which it is a member.
I don't see the justification for this. It's a formula for excessive control
by one contingent and capture.
> Section 5. Transparent and Open Processes
>
> The processes of the Names Council, as well as the Constituencies and
> the general membership, shall be governed by the same principles of
> open and transparent non-discriminatory processes as those of ICANN.
It should be written in that all Names Council meetings will be advertised
in advance, and that they will be open, at least to the membership of the
DNSO. No closed meetings of the Names Council!
> It is the intent of the DNSO that, at least initially, there will be
> significant review by the Constituencies over the decisions of the
> Names Council; over time, the Constituencies may agree to reduce the
> extent of review. Therefore, in all cases the Names Council shall
> seek input and review of its recommendations and Board nominations
> from each of the Constituencies. [13]
If it's left up to the Names Council, it won't happen. It must be stipulated
that the Names Council can make no decisions without the agreement of the
membership.
> Section 6. Dispute Resolution
>
> A. Fair Hearing Panels
>
> The Names Council will appoint, as necessary, Fair Hearing Panels to
> collect information concerning grievances, complaints, and conflicts
> that may arise, to make recommendations to the Names Council for
> possible remedial or other action. The Names Council shall establish
> the procedures and standards for Fair Hearing Panels, perhaps through
> designation of a committee to study the issue.
The membership, not the Names Council, must select the Fair Hearing Panels.
If the Names Council does it, they'll choose people they can control and who
won't point their finger at them. The main need for Fair Hearing Panels is
as a check on the Names Council; you abrogate their usefulness by allowing
the NC to choose and control them.
> The Names Council shall appoint a nominating committee to research,
> investigate
I strongly suggest that you remove the word "investigate" from this text.
You apparently have no shame, but perhaps you will at least have some
reticence to insult the sensibilities of Latin Americans and others who have
suffered persecution by the sorts of dictatorial regimes that you are
attempting to create here. No one in any organization that I am a member of
is going to be investigated.
> The Names Council shall ensure that all candidates have a significant
> understanding of the relationship between the Internet and business
> practice, intellectual property, freedom of expression, and consumer
> protection.
That's all? No knowledge of the Internet or the DNS? So, you turn the DNSO
into a representative of the trademarks interests? Isn't it just a little
more important that the candidates understand how the Internet and the DNS
functions?
And, what's meant here by "understanding"? That they agree with the position
of the INTA?
> ARTICLE V. INITIAL MEMBERSHIP AND INITIAL NAMES COUNCIL
>
> Section 1. Initial DNSO and Constituency Membership
>
> The Initial membership of the DNSO shall be drawn from those entities
> who sign the DNSO application to ICANN.
No. The initial membership of the DNSO will be those persons and entities
who join the DNSO once it is accepted by ICANN, not the people who sign your
draft. You are trying to blackmail people into signing it.
> All financial and other records in the custody of the Treasurer shall
> be open to the Names Council and the ICANN Board at all times for
> inspection or audit.
The books of the DNSO will be open to the membership or the ICIIU will sue
you.
> Given the importance of having a global consensus on the policies and
> procedures developed by DNSO, as well as expertise relating to the
> objectives of the DNSO, the Names Council may create committees for
> such terms and with such powers and duties, as it shall deem
> appropriate. The nomination of members to each committee and their
> election by the Names Council shall be conducted in the same manner
> as members of the Names Council are nominated under Article IV,
> except that committee members shall be voted on by the Names Council
> rather than by DNSO members.
No committees unaccountable to the membership!
ARTICLE VIII. MEETINGS AND ELECTIONS
The DNSO and all its components support the Internet; they are
distributed around the world; and therefore, to the extent possible,
all business of the DNSO, the Names Council, the Constituencies, and
any Committees shall be conducted online, or otherwise without the
requirement of physical meetings.
Unless all these online meetings are conducted on open mailing lists, you
are here providing a mechanism for secret meetings.
Section 2. Suspension or Expulsion of a Member or Disqualification
A. A member may be suspended for a period or expelled for cause such
as violation of any of the By-laws of the DNSO or for conduct
prejudicial to the best interests of the DNSO.
Where is a mechanism for suspension or expulsion of a member of the NC by
the membership?
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