[discuss] Some more legal tangles for ICANN

Michele Neylon - Blacknight michele at blacknight.com
Mon Jun 30 15:50:07 UTC 2014


The "ownership" of the database might be claimed by the ccTLD manager, but I'm not 100% convinced that it is either a matter of law or that it would be upheld should push come to shove .. 
And yes, I know full well that you and most of the ccTLD managers would disagree with me on this :)



Mr Michele Neylon
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-----Original Message-----
From: discuss-bounces at 1net.org [mailto:discuss-bounces at 1net.org] On Behalf Of Nigel Roberts
Sent: Monday, June 30, 2014 2:16 PM
To: discuss at 1net.org
Subject: Re: [discuss] Some more legal tangles for ICANN

Here's another, interesting fact. The database right to the contents of the ccTLD belongs to the ccTLD manager. That's a matter of statute law in most of Europe, and probably analogously elsewhere.

Now this will very probably be physically located outside US jurisdiction.

So let us assume

.IR is an asset of MOIS/the Islamic Republic .IR has a US situs.

therefore (assuming the lawyers find the right target to obtain a mandatory order against -- which might not be ICANN) it can be ordered to be transferred to a successful Claimant (Plaintiff) as an asset of the Defendant.

I think this is relatively uncontroversial. Others may disagree.

But, for a practical matter of enforcement, the registration database is a different sort of asset, and this is outside the jurisdiction.

Thus, an order may be obtained giving control of .IR, but without the tools necessary to run it (or even to keep it running, if the zonefile is also not to be found anywhere within (legal) reach).

Which means all the plaintiffs may obtain would be the ability to turn it off altogether.

Which, for their purposes, may suffice.


On 06/30/2014 02:05 PM, Nigel Roberts wrote:
> Except it doesn't.
> That's Verisign.
> On 06/30/2014 02:04 PM, Suzanne Woolf wrote:
>> Right, and I think that's beside Norbert's point (which I agree with).
>> To address the detail: ICANN, separate from its operation of the 
>> L-root server, administers the contents of the root zone and its 
>> associated contact data. The root servers (all of them) just get that 
>> data from a separate contractor (Verisign) as an operational detail.
>> To the larger point: the interesting questions are about the nature 
>> of the asset, if any; claims to it, its value, who controls it, etc.
>> Depending on exactly what I was told the asset was, I could think of 
>> all kinds of ways to transfer it, very few of which would involve the 
>> root servers in any direct way, and many of which wouldn't 
>> necessarily even involve ICANN. I'm sure others are way ahead of me.
>> Suzanne
>> On Jun 30, 2014, at 8:23 AM, Nigel Roberts <nigel at roberts.co.uk> wrote:
>>> ICANN can only change root zone data in ONE root server - the one it 
>>> operates.
>>> It has no authority over the master root server, nor any of the others.
>>> On 06/30/2014 11:19 AM, Norbert Bollow wrote:
>>>> Nigel Roberts <nigel at roberts.co.uk> wrote:
>>>>> Always assuming of course they know where to find it, of course.
>>>>> Here's a clue: wherever it is -- and I've not that sure, although 
>>>>> I could guess
>>>>> - it's surely not in Marina del Rey, or wherever ICANN's 
>>>>> California office is these days!
>>>> I don't think that this kind of argument would be seen as holding 
>>>> water from the perspective of any judge.
>>>> Any judge can ask someone with a bit of knowledge of how the 
>>>> Internet works about what it takes to transfer the ".ir TLD asset" 
>>>> to the plaintiffs. This could plausibly result in a court order 
>>>> which would give the plaintiffs in the action against Iran the 
>>>> power to direct ICANN to change to root zone file in relation to 
>>>> .ir as they see fit, similar to the owner to any .com 2LD has the 
>>>> power to get corresponding updates made in the .com zone.
>>>> Greetings,
>>>> Norbert
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