Adopted Board Resolutions | Nairobi

[Milton L Mueller]

Avri and Wolfgang:
There is room for reasonable disagreement about the VI resolution, but I am afraid you are badly misled on the .xxx case. 

> -----Original Message-----
> 
> - The ICM process makes sense to me.  without a process last time, it is
> foolish to decide without one this time.  

This is just a factual mistake. There was a very well defined process in 2004-5. Here it is in black and white: 
http://www.icann.org/en/tlds/new-stld-rfp/new-stld-application-parta-15dec03.htm 
ICM Registry conformed to it, and the Board conformed to it up until the US government intervened. If an agency makes a decision that breaks applicable law or its own rules and process, then you reverse the decision, you don't create a new process and treat the victim as if they are a completely new applicant. That isn't fair. As free expression concerns are at stake in this case, it's really bad that this is happening.

> and if they are being serious
> about the process, the court may stall the proceedings - even if ICM
> files - 

Avri, you need to preface remarks like that with "I am not a lawyer, but...." You seem not to understand the legal issues here. If there will be litigation it will be based on the fact that ICANN lost its case in the IRP and is now trying to avoid providing a remedy. And it is obvious that if ICANN awards the TLD there would be no court proceeding. So this argument just doesn't hold a drop of water. 

> because what they did wrong was move without a well defined
> process.,

Again, false premises lead to false conclusions. ICANN had a well-defined process, and they discarded it because of political pressure. 

> - the VI was the right decision.  there is no status quo, the percentage
> allowed varies by TLD.  so what status quo should they have applied?

That there is no status quo is a good point (it's a point I made in our discussions of the VI issue - interesting that you didn't buy it then but like it now). But what ICANN has done is confuse matters by creating and applying a completely new standard which constitutes a policy decision made from the top down. Although the levels of cross ownership vary, cross ownership is allowed now. The board ruling says NO cross-ownership is permissible. That's a new policy, and one that may be harmful to the interests of many new entrants and has no justification in the expert reports.

It's interesting to me that someone who constantly complains about staff and board-made policy that bypasses the bottom up process would support that. 


> The policy belongs to the GNSO and they have a job to do as quickly as
> possible.  I still think we can get it done as long as the games are
> kept to a minimum by all parties.

Hah! Too late for that. We saw what the trademark guys did to Objective 5. I guarantee that the first two months of this WG will be consumed with debate over its charter. The games have already begun. 

--MM