On Thu, 1 Aug 2002, Dave Crocker wrote: > Date: Thu, 01 Aug 2002 11:34:57 -0700 > From: Dave Crocker <dhc2@dcrocker.net> > To: Michael Froomkin - U.Miami School of Law <froomkin@law.miami.edu> > Cc: ietf <ietf@ietf.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@tribalwise.com>