[discuss] Some more legal tangles for ICANN

Sat Jun 28 10:26:59 UTC 2014

The District Court does, from the news reports, appear to have been 
persuaded of this particular point of law.

But as Bill correctly, and helpfully points out, a copy of the actual 
reasoned decision would be extremely helpful.

We could, for example, subject it to a proper legal analysis in order to 
determine the implication which might flow from it.  For example whether 
it is ratio or obiter (not that for our purposes, it makes much 
difference .. since it is the persuasive effect of this which is of most 
legal interest).

A top-level domain name, is simply a domain name that is at the top 
level of the DNS.

Domain names are described in RFC 920 and RFC 1591. These two documents 
makes it clear, that requirements on higher level domains, apply 
recursively throughout the DNS. A TLD is simply a special case.

A domain is an area of responsibility in the DNS.

It means control over a particular sub-tree to an infinite level (or to 
be more accurate, to whatever level the DNS software practically 
supports). Domain, demesne and bailiwick are closely related terms and 
an internet domain is a close analogue thereof.

A domain name is simply the name of a domain. The names of such internet 
domains may only consist of certain letters, numbers and hyphens.

The registration of a domain name creates a bundle of rights that belong 
to the registrant. Registration of a domain name may also reassert 
other, already existing rights, such as intellectual property rights.

Domain name registration rights are thus usually, and largely but not 
exclusively, defined by contracts between the domain registrant and the 
owner of the domain immediately above them (which in most circumstances 
is a "domain name registry". For example, in English law (which is 
somewhat related to US law) the registrant of microsoft.uk owns the 
bundle of rights created by contracts between itself and the Registry 
(Nominet) and its Registrar (if any).

All these bundle of rights in respect of MICROSOFT.UK are, are owned by 
the well known software company.

They are therefore an asset which can be attached by the liquidator or 
adminstrator, in the unlikely event that Microsoft should become insolvent.

Therefore there is no doubt in my mind that the bundle of rights created 
on registration of domain names are assets, in English law. Another word 
for this is 'intangible property'.

> PS: As for your claim of absence of any nexus between cctlds and ICANN
> reg delegation, de-delgation or re-delegation, that surprises me, but I
> have no desire to take up that discussion.
>

You may not avoid this, simply by saying you have no desire to discuss it.

In public law, the fundamental question is "whence derives the legal power".

So one needs to consider

1. If ICANN has statutory (e.g. regulatory, licencing or taxing) 
authority over third parties, where is that statute?

2. If ICANN has contractual agreements where it agrees to (for example) 
give a licence to run .IR to the Iranian Government,whether in return 
for licence payments, or otherwise, let's see it!

3. If the "IR" domain name isn't a US domain name, where is its actual 
situs, and on what legal theory is that situs to be determined. Isn't 
there a Canadian decision on this?

And Wolfgang and Chris (thank you!) are very on point here. The ccNSO 
has recently completed six years of patient work into Delegation and 
Redelegation of ccTLDS, and a Framework for Interpretation of existing 
policy that no doubt would helpfully inform any court considering such 
matters.