On Thu, 1 Aug 2002, Dave Crocker wrote:
Date: Thu, 01 Aug 2002 11:34:57 -0700
From: Dave Crocker <dhc2(_at_)dcrocker(_dot_)net>
To: Michael Froomkin - U.Miami School of Law
<froomkin(_at_)law(_dot_)miami(_dot_)edu>
Cc: ietf <ietf(_at_)ietf(_dot_)org>
Subject: Re: delegation mechanism, Re: Trees have one root
At 02:03 PM 8/1/2002 -0400, Michael Froomkin - U.Miami School of Law wrote:
This statement quoted below, in which it is alleged that Karl Auerbach got
only what he'd previously been offered, is flatly contradicted by the text
of the judicial decision. It is, quite simply, utterly false.
Rather than reiterating court text that is irrelevant to my point, let's
note the key strictures:
THERE IS NO ALTERNATIVE TO READING THE TEXT OF THE COURT DECISION. I
believe that Michael Froomkin's characterization of it is entirely
correct, that ICANN should be publicly apologizing to Karl. No doubt you
are of a different opinion. This is not going to be settled by a bunch
of posts which say "Nyah, Nyah, I'm right and you're wrong." Peple MUST
read the court case. I also think they should note that all those
saying ICANN lost totally are telling them to read the whole decision of
the court, a neutral third party, and all those saying that ICANN
actually won, are telling people not to bother themselves reading what
the court said but to just consider a particular spin on one or two
small facets of the court decision, facets that are meaningless without
the full context.
* Karl may not copy confidential materials nor may he remove them
from ICANN.
The final decision is worded in such a way as to imply that if Karl
wants copies of confidential material, ICANN should make them for him
rather than him copying them himself. Perhaps the court thought he might
not want carry a Xerox machine in one his back. The decision clearly
indicates that he is trusted to disclose confidential material to his
agents and advisors which indicates that the court does not agree with
the way you and others have tried to characterize Karl as a raving
maniac.
* Karl must give 10 days notice before making information public.
This latter point is nicely telling, because it suggests that the court
also has some concern about Karl's likely "independence" of action.
No, this point is particularly insignificant. It is the usual
combination of splitting of differences and the universal conspiracy of
lawyers. After all, if the court hadn't thrown some sop to ICANN,
ICANN's lawyers might have had some trouble collecting their fees from
ICANN on the theory they didn't do them any good. By providing something
(even if a measily 3 day extenstion), the judge, also a lawyer, "for
professional reasons" gives the ICANN lawyers something to point at they
can claim they gained their client as justification for their fees
should the matter of paying ICANN's lawyers ever get to court.
The 7 day notice that Karl had offered, when under California
notice he was under no obligation to offer any notice at all, indicates
how far he was willing to go to try to satisfy the illegal demands of
ICANN management. Despite blowing away all of ICANNs agrument, the court
still came through with a decision inbetween that asked for by the two
parties, even if almost identical to what Karl asked for, thus
"splitting the difference". I've read Federal Communications Commission
decsions where, for example, AT&T petitioned for a 90 day delay in
something, the FCC totally blew away all of AT&T's arguments and ruled
against every point they made, but still ended up granting a 1 day
delay. That's just the way things work and one of the reasons people
sometimes take the most extreme position they can conceive of, on the
grounds that they will never get all of what they ask for anyway.
d/
Becasue you don't like someone and/or don't like their opinions is not a
good reason to presume they will violate their duty as the director of a
corporation and is not a good reason to act illegally towards them.
ICANN can run around spinning this like crazy and trumpet the
measly 3 extra days notice they got as a tremendous victory. That's one
of the things getting a sop lets you do.
Morally and in the eyes of public opinion, ICANN has stabbed
itself and the longer it refuses to admit it was wrong, the deader ICANN
becomes.
Donald
Dave Crocker <mailto:dave(_at_)tribalwise(_dot_)com>