Subject: GA-DIGEST V1 #1646
From: [email-masked] (GA-DIGEST)
To: [email-masked]

GA-DIGEST           Tuesday, March 25 2003           Volume 01 : Number 1646

----------------------------------------------------------------------

Date: Tue, 25 Mar 2003 07:43:35 -0600
From: "Jim Fleming" <[email-masked]>
Subject: [ga] Fw: "while respecting the legitimate rights of IPR holders..." ??

- ----- Original Message ----- 
From: "Jim Fleming" <[email-masked]>
To: <[email-masked]>
Sent: Tuesday, March 25, 2003 7:40 AM
Subject: "while respecting the legitimate rights of IPR holders..." ??

> http://www.ietf.org/internet-drafts/draft-ietf-ipr-technology-rights-03.txt
> S. Bradner
> "The policies are also intended to benefit the Internet community
> and the public at large, while respecting the legitimate rights of IPR holders."
> =====
> 
> The I* society (small s...aka The Big Lie Society) does not appear to respect anyone's rights.
> The I* society simply takes what it wants, does not reference other people's work (prior art, etc.),
> and attempts to do ethnic cleansing on networks to only allow economic advantage to flow to their insiders...
> Via censorship and control of the media and the view presented to governments, the I* society attempts
> to shape history to match their reality...which is not the truth...
> 
> Educated and enlightened people learn the truth and pass it on from one generation to the next...
> ...the I* society has yet to figure out a way to control what is in all people's meatspace brains...
> Truth-seeking people have to protect themselves and route around the dictatorial regimes of the I* society...
> The InterNAT is one of the first steps in setting up that protection...
> ===================================
> ===================================
> ===================================
> 
> 
> ----- Original Message ----- 
> From: <[email-masked]>
> To: <IETF-Announce:>
> Cc: <[email-masked]>
> Sent: Tuesday, March 25, 2003 7:12 AM
> Subject: I-D ACTION:draft-ietf-ipr-technology-rights-03.txt
> 
> 
> > A New Internet-Draft is available from the on-line Internet-Drafts directories.
> > This draft is a work item of the Intellectual Property Rights Working Group of the IETF.
> > 
> > Title : Intellectual Property Rights in IETF Technology
> > Author(s) : S. Bradner
> > Filename : draft-ietf-ipr-technology-rights-03.txt
> > Pages : 14
> > Date : 2003-3-24
> > 
> > The IETF policies about intellectual property rights (IPR), such as
> > patent rights, relative to technologies developed in the IETF are
> > designed to ensure that IETF working groups and participants have as
> > much information about any IPR constraints on a technical proposal as
> > possible.  The policies are also intended to benefit the Internet
> > community and the public at large, while respecting the legitimate
> > rights of IPR holders.  This memo details the IETF policies
> > concerning IPR related to technology worked on within the IETF. It
> > also describes the objectives that the policies are designed to meet.
> > This memo updates RFC 2026 and, with RFC XXXY, replaces Section 10 of
> > RFC 2026. [note to RFC editor - replace XXXY with number of IETF SUB]
> > 
> > A URL for this Internet-Draft is:
> > http://www.ietf.org/internet-drafts/draft-ietf-ipr-technology-rights-03.txt
> > 
> > To remove yourself from the IETF Announcement list, send a message to 
> > ietf-announce-request with the word unsubscribe in the body of the message.
> > 
> > Internet-Drafts are also available by anonymous FTP. Login with the username
> > "anonymous" and a password of your e-mail address. After logging in,
> > type "cd internet-drafts" and then
> > "get draft-ietf-ipr-technology-rights-03.txt".
> > 
> > A list of Internet-Drafts directories can be found in
> > http://www.ietf.org/shadow.html 
> > or ftp://ftp.ietf.org/ietf/1shadow-sites.txt
> > 
> > 
> > Internet-Drafts can also be obtained by e-mail.
> > 
> > Send a message to:
> > [email-masked].
> > In the body type:
> > "FILE /internet-drafts/draft-ietf-ipr-technology-rights-03.txt".
> > 
> > NOTE: The mail server at ietf.org can return the document in
> > MIME-encoded form by using the "mpack" utility.  To use this
> > feature, insert the command "ENCODING mime" before the "FILE"
> > command.  To decode the response(s), you will need "munpack" or
> > a MIME-compliant mail reader.  Different MIME-compliant mail readers
> > exhibit different behavior, especially when dealing with
> > "multipart" MIME messages (i.e. documents which have been split
> > up into multiple messages), so check your local documentation on
> > how to manipulate these messages.
> > 
> > 
> > Below is the data which will enable a MIME compliant mail reader
> > implementation to automatically retrieve the ASCII version of the
> > Internet-Draft.
> > 
> 
> _______________________________________________
> Ipr-wg mailing list
> [email-masked]
> https://www1.ietf.org/mailman/listinfo/ipr-wg

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------------------------------

Date: Tue, 25 Mar 2003 22:04:58 +0800
From: Ramesh Kumar Nadarajah <[email-masked]>
Subject: [ga] Re: "Does it make a difference that the ccTLD community..." ???

Sorry, do not see relevance of a complete list of ccTLDs. If you are 
disputing the existence of a ccTLD community, I suppose it comes down to 
a question of definitions.

I am referring to the extract from Article 38 of the statute of the 
international court of justice as quoted by Prof Froomkin:

"b. international custom, as evidence of a general practice accepted as
law;"

If there is general practice by the members of the GAC, ICANN and the 
ccTLDs which are active in the ICANN-related dialogue (whether or not 
they form a community), can it be construed as international custom? And 
assuming RFC 1591 is the document that records the principle behind that 
general practice, if it can be considered a general practice. Could it 
be merely a question of time before a behaviour becomes acknowledged as 
general practice?

- - ramesh -

Jim Fleming wrote:

>"Does it make a difference that the ccTLD community..." ???
>
>====
>
>Can you first provide a **complete list** of the TLDs in the so-called "ccTLD community" ?
>
>2-Letter TLDs do not imply ccTLD, they may imply Valuable TLDs, but not so-called ccTLDs.
>
>If the U.S. Government decides to remove .FR and .DE from their root servers, there is little anyone can do about it...and, that
>does not remove .FR and .DE from the name space...because modern DNS software does not use ANY root servers...people would be fools
>to be tied to a single point of control and failure...
>
>As for the Top 2,048 TLDs...Americans can self-select (via free market selections) which TLDs they prefer...they have the bandwidth
>and the new services are tied to having a lot of bandwidth and the rest of the world will not be at that table...the laws of physics
>can not be changed...bits only move so fast from one place to another...take for example the RIO situation...you could have 400+
>people in meatspace going to the wrong RIO to meet...and they have no bandwidth to be reconnected via the InterNAT...they are being
>positioned further and further from the big island with .NET as the center...some of the so-called ccTLDs will of course disappear
>into the ocean...literally...
>
>
>----- Original Message -----
>From: Ramesh Kumar Nadarajah
>To: Michael Froomkin - U.Miami School of Law
>Cc: [email-masked] ; Rodrigo Orenday Serrato ; [email-masked] ; [email-masked] ; [email-masked] ; [email-masked]
>Sent: Tuesday, March 25, 2003 6:30 AM
>Subject: Re: [ga] New TLD White Paper released
>
>
>
>Question for the professionals: Does it make a difference that the ccTLD community, ICANN and the GAC operate based on the principle
>stated in RFC 1591 which  says:
>"These designated authorities (i.e. the ccTLD manager) are trustees for
>the delegated domain, and have a duty to serve the community.
>
>The designated manager is the trustee of the top-level domain for
>both the nation, in the case of a country code, and the global
>Internet community."
>If they are trustees, the beneficiaries appear to be the nation (state?) for a ccTLD. Equitable ownership?
>
>Regards,
>
>- ramesh -
>
>
>Michael Froomkin - U.Miami School of Law wrote:
>
>I am afraid you are confusing national law and international law (and
>international public law with international private law). What you have
>written is (sort of, in a very basic and oversimplified fashion) the rule
>for national law. But national law does not (much) extend beyond the
>state's borders.
>
>Public International law is quite different.  Simplifying, the sources of
>international are broadly considered to be those found in Article 38 of
>the statute of the international court of justice (cf.
>http://www.un.org/Overview/Statute/chapter2.html), to wit:
>
><blockquote>
>
>a. international conventions, whether general or particular, establishing
>rules expressly recognized by the contesting states;
>
>b. international custom, as evidence of a general practice accepted as
>law;
>
>c. the general principles of law recognized by civilized nations;
>
>d. subject to the provisions of Article 59, judicial decisions and the
>teachings of the most highly qualified publicists of the various nations,
>as subsidiary means for the determination of rules of law.
>
></blockquote>
>
>I cannot prove to you a negative, but I have searched high and low -- I am
>writing an article about this very issue -- and it is my contention to you
>that not a single one of these four sources exists to support the
>proposition that a state "owns" the ccTLD whose TLD is identical to the
>ISO country code associated with that state as a matter of public
>international law. [It cannot be international private law as there is
>neither treaty nor contract to support this claim.] Note, in this context,
>that the ISO is itself a private body.  If the matter is so obvious,
>surely someone could come up with a citation prior to the GAC's
>declaration that this rule was already a fact?
>
>Of course, a state that does not already control its cognate ccTLD could
>apply its national rules to take the ccTLD from its domiciliary [since the
>delegee of the ccTLD must be resident]. In the absence of some principle
>of public international law lodging the ownership of the ccTLD in the
>state a priori, the state must do this act in conformity with its own
>rules: in some places that means it can expropriate at will, in others it
>could threaten to torture the delegee, but in still others it may have to
>follow due process and/or offer compensation.
>
>The significance of the debate we are having is that, were it the case
>that there were an existing rule of public international law which stated
>that ownership of the ccTLD was (always?) (inalienable?) vested in the
>state, even a civilized state would not need to observe domestic due
>process, and would never need to provide compensation, but could simply
>take the ccTLD directly.
>
>There are indeed rights here, but they are rights that sound in
>international private law: the rights of the ccTLD delegate to the quiet
>enjoyment of his agreement with IANA during good behavior without
>interference from outsiders to the relationship.
>
>I hope this has helped you understand why you have used false premises to
>reason to an incorrect conclusion.
>
>
>  
>

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------------------------------

Date: Tue, 25 Mar 2003 09:01:53 -0500 (EST)
From: "Michael Froomkin - U.Miami School of Law" <[email-masked]>
Subject: [ga] Re: "Does it make a difference that the ccTLD community..." ???

Let me clear up a confusion: the "custom" at issue is state practice, not
what private firms do.

Neither ICANN, GAC nor ccTLDs are recognized international state actors.
GAC is an advisory body to a private firm, so even though governments send
representatives it has no status in public international law.

On Tue, 25 Mar 2003, Ramesh Kumar Nadarajah wrote:

> 
> Sorry, do not see relevance of a complete list of ccTLDs. If you are 
> disputing the existence of a ccTLD community, I suppose it comes down to 
> a question of definitions.
> 
> I am referring to the extract from Article 38 of the statute of the 
> international court of justice as quoted by Prof Froomkin:
> 
> "b. international custom, as evidence of a general practice accepted as
> law;"
> 
> If there is general practice by the members of the GAC, ICANN and the 
> ccTLDs which are active in the ICANN-related dialogue (whether or not 
> they form a community), can it be construed as international custom? And 
> assuming RFC 1591 is the document that records the principle behind that 
> general practice, if it can be considered a general practice. Could it 
> be merely a question of time before a behaviour becomes acknowledged as 
> general practice?
> 
> - ramesh -
> 
> Jim Fleming wrote:
> 
> >"Does it make a difference that the ccTLD community..." ???
> >
> >====
> >
> >Can you first provide a **complete list** of the TLDs in the so-called "ccTLD community" ?
> >
> >2-Letter TLDs do not imply ccTLD, they may imply Valuable TLDs, but not so-called ccTLDs.
> >
> >If the U.S. Government decides to remove .FR and .DE from their root servers, there is little anyone can do about it...and, that
> >does not remove .FR and .DE from the name space...because modern DNS software does not use ANY root servers...people would be fools
> >to be tied to a single point of control and failure...
> >
> >As for the Top 2,048 TLDs...Americans can self-select (via free market selections) which TLDs they prefer...they have the bandwidth
> >and the new services are tied to having a lot of bandwidth and the rest of the world will not be at that table...the laws of physics
> >can not be changed...bits only move so fast from one place to another...take for example the RIO situation...you could have 400+
> >people in meatspace going to the wrong RIO to meet...and they have no bandwidth to be reconnected via the InterNAT...they are being
> >positioned further and further from the big island with .NET as the center...some of the so-called ccTLDs will of course disappear
> >into the ocean...literally...
> >
> >
> >----- Original Message -----
> >From: Ramesh Kumar Nadarajah
> >To: Michael Froomkin - U.Miami School of Law
> >Cc: [email-masked] ; Rodrigo Orenday Serrato ; [email-masked] ; [email-masked] ; [email-masked] ; [email-masked]
> >Sent: Tuesday, March 25, 2003 6:30 AM
> >Subject: Re: [ga] New TLD White Paper released
> >
> >
> >
> >Question for the professionals: Does it make a difference that the ccTLD community, ICANN and the GAC operate based on the principle
> >stated in RFC 1591 which  says:
> >"These designated authorities (i.e. the ccTLD manager) are trustees for
> >the delegated domain, and have a duty to serve the community.
> >
> >The designated manager is the trustee of the top-level domain for
> >both the nation, in the case of a country code, and the global
> >Internet community."
> >If they are trustees, the beneficiaries appear to be the nation (state?) for a ccTLD. Equitable ownership?
> >
> >Regards,
> >
> >- ramesh -
> >
> >
> >Michael Froomkin - U.Miami School of Law wrote:
> >
> >I am afraid you are confusing national law and international law (and
> >international public law with international private law). What you have
> >written is (sort of, in a very basic and oversimplified fashion) the rule
> >for national law. But national law does not (much) extend beyond the
> >state's borders.
> >
> >Public International law is quite different.  Simplifying, the sources of
> >international are broadly considered to be those found in Article 38 of
> >the statute of the international court of justice (cf.
> >http://www.un.org/Overview/Statute/chapter2.html), to wit:
> >
> ><blockquote>
> >
> >a. international conventions, whether general or particular, establishing
> >rules expressly recognized by the contesting states;
> >
> >b. international custom, as evidence of a general practice accepted as
> >law;
> >
> >c. the general principles of law recognized by civilized nations;
> >
> >d. subject to the provisions of Article 59, judicial decisions and the
> >teachings of the most highly qualified publicists of the various nations,
> >as subsidiary means for the determination of rules of law.
> >
> ></blockquote>
> >
> >I cannot prove to you a negative, but I have searched high and low -- I am
> >writing an article about this very issue -- and it is my contention to you
> >that not a single one of these four sources exists to support the
> >proposition that a state "owns" the ccTLD whose TLD is identical to the
> >ISO country code associated with that state as a matter of public
> >international law. [It cannot be international private law as there is
> >neither treaty nor contract to support this claim.] Note, in this context,
> >that the ISO is itself a private body.  If the matter is so obvious,
> >surely someone could come up with a citation prior to the GAC's
> >declaration that this rule was already a fact?
> >
> >Of course, a state that does not already control its cognate ccTLD could
> >apply its national rules to take the ccTLD from its domiciliary [since the
> >delegee of the ccTLD must be resident]. In the absence of some principle
> >of public international law lodging the ownership of the ccTLD in the
> >state a priori, the state must do this act in conformity with its own
> >rules: in some places that means it can expropriate at will, in others it
> >could threaten to torture the delegee, but in still others it may have to
> >follow due process and/or offer compensation.
> >
> >The significance of the debate we are having is that, were it the case
> >that there were an existing rule of public international law which stated
> >that ownership of the ccTLD was (always?) (inalienable?) vested in the
> >state, even a civilized state would not need to observe domestic due
> >process, and would never need to provide compensation, but could simply
> >take the ccTLD directly.
> >
> >There are indeed rights here, but they are rights that sound in
> >international private law: the rights of the ccTLD delegate to the quiet
> >enjoyment of his agreement with IANA during good behavior without
> >interference from outsiders to the relationship.
> >
> >I hope this has helped you understand why you have used false premises to
> >reason to an incorrect conclusion.
> >
> >
> >  
> >
> 
> 
> 
> 

- -- 
		Please visit http://www.icannwatch.org
A. Michael Froomkin   |    Professor of Law    |   [email-masked]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
                        -->It's warm here.<--

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------------------------------

Date: Tue, 25 Mar 2003 22:15:36 +0800
From: Ramesh Kumar Nadarajah <[email-masked]>
Subject: [ga] Re: "Does it make a difference that the ccTLD community..." ???

- --------------080002050707030402020601
Content-Type: text/plain; charset=us-ascii; format=flowed
Content-Transfer-Encoding: 7bit

Thank you. That clarifies matters.
But if over the next decade or so:
1. redelegations are demanded by national governments on the basis that 
the existing ccTLD manager is not serving the Local Internet Community; and
2. governments begin enacting legislation that they have control over 
their portion of cyberspace (however defined and whether enforceable or not)
in your opinion, would that amount to "international custom"?

Thank you again for the clarifications.

- - ramesh -

Michael Froomkin - U.Miami School of Law wrote:

>Let me clear up a confusion: the "custom" at issue is state practice, not
>what private firms do.
>
>Neither ICANN, GAC nor ccTLDs are recognized international state actors.
>GAC is an advisory body to a private firm, so even though governments send
>representatives it has no status in public international law.
>
>On Tue, 25 Mar 2003, Ramesh Kumar Nadarajah wrote:
>
>  
>
>>Sorry, do not see relevance of a complete list of ccTLDs. If you are 
>>disputing the existence of a ccTLD community, I suppose it comes down to 
>>a question of definitions.
>>
>>I am referring to the extract from Article 38 of the statute of the 
>>international court of justice as quoted by Prof Froomkin:
>>
>>"b. international custom, as evidence of a general practice accepted as
>>law;"
>>
>>If there is general practice by the members of the GAC, ICANN and the 
>>ccTLDs which are active in the ICANN-related dialogue (whether or not 
>>they form a community), can it be construed as international custom? And 
>>assuming RFC 1591 is the document that records the principle behind that 
>>general practice, if it can be considered a general practice. Could it 
>>be merely a question of time before a behaviour becomes acknowledged as 
>>general practice?
>>
>>- ramesh -
>>
>>Jim Fleming wrote:
>>
>>    
>>
>>>"Does it make a difference that the ccTLD community..." ???
>>>
>>>====
>>>
>>>Can you first provide a **complete list** of the TLDs in the so-called "ccTLD community" ?
>>>
>>>2-Letter TLDs do not imply ccTLD, they may imply Valuable TLDs, but not so-called ccTLDs.
>>>
>>>If the U.S. Government decides to remove .FR and .DE from their root servers, there is little anyone can do about it...and, that
>>>does not remove .FR and .DE from the name space...because modern DNS software does not use ANY root servers...people would be fools
>>>to be tied to a single point of control and failure...
>>>
>>>As for the Top 2,048 TLDs...Americans can self-select (via free market selections) which TLDs they prefer...they have the bandwidth
>>>and the new services are tied to having a lot of bandwidth and the rest of the world will not be at that table...the laws of physics
>>>can not be changed...bits only move so fast from one place to another...take for example the RIO situation...you could have 400+
>>>people in meatspace going to the wrong RIO to meet...and they have no bandwidth to be reconnected via the InterNAT...they are being
>>>positioned further and further from the big island with .NET as the center...some of the so-called ccTLDs will of course disappear
>>>into the ocean...literally...
>>>
>>>
>>>----- Original Message -----
>>>From: Ramesh Kumar Nadarajah
>>>To: Michael Froomkin - U.Miami School of Law
>>>Cc: [email-masked] ; Rodrigo Orenday Serrato ; [email-masked] ; [email-masked] ; [email-masked] ; [email-masked]
>>>Sent: Tuesday, March 25, 2003 6:30 AM
>>>Subject: Re: [ga] New TLD White Paper released
>>>
>>>
>>>
>>>Question for the professionals: Does it make a difference that the ccTLD community, ICANN and the GAC operate based on the principle
>>>stated in RFC 1591 which  says:
>>>"These designated authorities (i.e. the ccTLD manager) are trustees for
>>>the delegated domain, and have a duty to serve the community.
>>>
>>>The designated manager is the trustee of the top-level domain for
>>>both the nation, in the case of a country code, and the global
>>>Internet community."
>>>If they are trustees, the beneficiaries appear to be the nation (state?) for a ccTLD. Equitable ownership?
>>>
>>>Regards,
>>>
>>>- ramesh -
>>>
>>>
>>>Michael Froomkin - U.Miami School of Law wrote:
>>>
>>>I am afraid you are confusing national law and international law (and
>>>international public law with international private law). What you have
>>>written is (sort of, in a very basic and oversimplified fashion) the rule
>>>for national law. But national law does not (much) extend beyond the
>>>state's borders.
>>>
>>>Public International law is quite different.  Simplifying, the sources of
>>>international are broadly considered to be those found in Article 38 of
>>>the statute of the international court of justice (cf.
>>>http://www.un.org/Overview/Statute/chapter2.html), to wit:
>>>
>>><blockquote>
>>>
>>>a. international conventions, whether general or particular, establishing
>>>rules expressly recognized by the contesting states;
>>>
>>>b. international custom, as evidence of a general practice accepted as
>>>law;
>>>
>>>c. the general principles of law recognized by civilized nations;
>>>
>>>d. subject to the provisions of Article 59, judicial decisions and the
>>>teachings of the most highly qualified publicists of the various nations,
>>>as subsidiary means for the determination of rules of law.
>>>
>>></blockquote>
>>>
>>>I cannot prove to you a negative, but I have searched high and low -- I am
>>>writing an article about this very issue -- and it is my contention to you
>>>that not a single one of these four sources exists to support the
>>>proposition that a state "owns" the ccTLD whose TLD is identical to the
>>>ISO country code associated with that state as a matter of public
>>>international law. [It cannot be international private law as there is
>>>neither treaty nor contract to support this claim.] Note, in this context,
>>>that the ISO is itself a private body.  If the matter is so obvious,
>>>surely someone could come up with a citation prior to the GAC's
>>>declaration that this rule was already a fact?
>>>
>>>Of course, a state that does not already control its cognate ccTLD could
>>>apply its national rules to take the ccTLD from its domiciliary [since the
>>>delegee of the ccTLD must be resident]. In the absence of some principle
>>>of public international law lodging the ownership of the ccTLD in the
>>>state a priori, the state must do this act in conformity with its own
>>>rules: in some places that means it can expropriate at will, in others it
>>>could threaten to torture the delegee, but in still others it may have to
>>>follow due process and/or offer compensation.
>>>
>>>The significance of the debate we are having is that, were it the case
>>>that there were an existing rule of public international law which stated
>>>that ownership of the ccTLD was (always?) (inalienable?) vested in the
>>>state, even a civilized state would not need to observe domestic due
>>>process, and would never need to provide compensation, but could simply
>>>take the ccTLD directly.
>>>
>>>There are indeed rights here, but they are rights that sound in
>>>international private law: the rights of the ccTLD delegate to the quiet
>>>enjoyment of his agreement with IANA during good behavior without
>>>interference from outsiders to the relationship.
>>>
>>>I hope this has helped you understand why you have used false premises to
>>>reason to an incorrect conclusion.
>>>
>>>
>>> 
>>>
>>>      
>>>
>>
>>
>>    
>>
>
>  
>

- --------------080002050707030402020601
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Content-Transfer-Encoding: 7bit

<!DOCTYPE html PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN">
<html>
<head>
  <meta http-equiv="Content-Type" content="text/html;charset=ISO-8859-1">
  <title></title>
</head>
<body>
<br>
Thank you. That clarifies matters.<br>
But if over the next decade or so:<br>
1. redelegations are demanded by national governments on the basis that the
existing ccTLD manager is not serving the Local Internet Community; and <br>
2. governments begin enacting legislation that they have control over their
portion of cyberspace (however defined and whether enforceable or not)<br>
in your opinion, would that amount to "international custom"?<br>
<br>
Thank you again for the clarifications.<br>
<br>
- - ramesh -<br>
<br>
Michael Froomkin - U.Miami School of Law wrote:<br>
<blockquote type="cite"
 cite="[email-masked]">
  <pre wrap="">Let me clear up a confusion: the "custom" at issue is state practice, not
what private firms do.

Neither ICANN, GAC nor ccTLDs are recognized international state actors.
GAC is an advisory body to a private firm, so even though governments send
representatives it has no status in public international law.

On Tue, 25 Mar 2003, Ramesh Kumar Nadarajah wrote:

  </pre>
  <blockquote type="cite">
    <pre wrap="">Sorry, do not see relevance of a complete list of ccTLDs. If you are 
disputing the existence of a ccTLD community, I suppose it comes down to 
a question of definitions.

I am referring to the extract from Article 38 of the statute of the 
international court of justice as quoted by Prof Froomkin:

"b. international custom, as evidence of a general practice accepted as
law;"

If there is general practice by the members of the GAC, ICANN and the 
ccTLDs which are active in the ICANN-related dialogue (whether or not 
they form a community), can it be construed as international custom? And 
assuming RFC 1591 is the document that records the principle behind that 
general practice, if it can be considered a general practice. Could it 
be merely a question of time before a behaviour becomes acknowledged as 
general practice?

- - ramesh -

Jim Fleming wrote:

    </pre>
    <blockquote type="cite">
      <pre wrap="">"Does it make a difference that the ccTLD community..." ???

====

Can you first provide a **complete list** of the TLDs in the so-called "ccTLD community" ?

2-Letter TLDs do not imply ccTLD, they may imply Valuable TLDs, but not so-called ccTLDs.

If the U.S. Government decides to remove .FR and .DE from their root servers, there is little anyone can do about it...and, that
does not remove .FR and .DE from the name space...because modern DNS software does not use ANY root servers...people would be fools
to be tied to a single point of control and failure...

As for the Top 2,048 TLDs...Americans can self-select (via free market selections) which TLDs they prefer...they have the bandwidth
and the new services are tied to having a lot of bandwidth and the rest of the world will not be at that table...the laws of physics
can not be changed...bits only move so fast from one place to another...take for example the RIO situation...you could have 400+
people in meatspace going to the wrong RIO to meet...and they have no bandwidth to be reconnected via the InterNAT...they are being
positioned further and further from the big island with .NET as the center...some of the so-called ccTLDs will of course disappear
into the ocean...literally...

- ----- Original Message -----
From: Ramesh Kumar Nadarajah
To: Michael Froomkin - U.Miami School of Law
Cc: <a class="moz-txt-link-abbreviated" href="mailto:[email-masked]">[email-masked]</a> ; Rodrigo Orenday Serrato ; <a class="moz-txt-link-abbreviated" href="mailto:[email-masked]">[email-masked]</a> ; <a class="moz-txt-link-abbreviated" href="mailto:[email-masked]">[email-masked]</a> ; <a class="moz-txt-link-abbreviated" href="mailto:[email-masked]">[email-masked]</a> ; <a class="moz-txt-link-abbreviated" href="mailto:[email-masked]">[email-masked]</a>
Sent: Tuesday, March 25, 2003 6:30 AM
Subject: Re: [ga] New TLD White Paper released

Question for the professionals: Does it make a difference that the ccTLD community, ICANN and the GAC operate based on the principle
stated in RFC 1591 which  says:
"These designated authorities (i.e. the ccTLD manager) are trustees for
the delegated domain, and have a duty to serve the community.

The designated manager is the trustee of the top-level domain for
both the nation, in the case of a country code, and the global
Internet community."
If they are trustees, the beneficiaries appear to be the nation (state?) for a ccTLD. Equitable ownership?

Regards,

- - ramesh -

Michael Froomkin - U.Miami School of Law wrote:

I am afraid you are confusing national law and international law (and
international public law with international private law). What you have
written is (sort of, in a very basic and oversimplified fashion) the rule
for national law. But national law does not (much) extend beyond the
state's borders.

Public International law is quite different.  Simplifying, the sources of
international are broadly considered to be those found in Article 38 of
the statute of the international court of justice (cf.
<a class="moz-txt-link-freetext" href="http://www.un.org/Overview/Statute/chapter2.html">http://www.un.org/Overview/Statute/chapter2.html</a>), to wit:

&lt;blockquote&gt;

a. international conventions, whether general or particular, establishing
rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as
law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various nations,
as subsidiary means for the determination of rules of law.

&lt;/blockquote&gt;

I cannot prove to you a negative, but I have searched high and low -- I am
writing an article about this very issue -- and it is my contention to you
that not a single one of these four sources exists to support the
proposition that a state "owns" the ccTLD whose TLD is identical to the
ISO country code associated with that state as a matter of public
international law. [It cannot be international private law as there is
neither treaty nor contract to support this claim.] Note, in this context,
that the ISO is itself a private body.  If the matter is so obvious,
surely someone could come up with a citation prior to the GAC's
declaration that this rule was already a fact?

Of course, a state that does not already control its cognate ccTLD could
apply its national rules to take the ccTLD from its domiciliary [since the
delegee of the ccTLD must be resident]. In the absence of some principle
of public international law lodging the ownership of the ccTLD in the
state a priori, the state must do this act in conformity with its own
rules: in some places that means it can expropriate at will, in others it
could threaten to torture the delegee, but in still others it may have to
follow due process and/or offer compensation.

The significance of the debate we are having is that, were it the case
that there were an existing rule of public international law which stated
that ownership of the ccTLD was (always?) (inalienable?) vested in the
state, even a civilized state would not need to observe domestic due
process, and would never need to provide compensation, but could simply
take the ccTLD directly.

There are indeed rights here, but they are rights that sound in
international private law: the rights of the ccTLD delegate to the quiet
enjoyment of his agreement with IANA during good behavior without
interference from outsiders to the relationship.

I hope this has helped you understand why you have used false premises to
reason to an incorrect conclusion.

 

      </pre>
    </blockquote>
    <pre wrap="">

    </pre>
  </blockquote>
  <pre wrap=""><!---->
  </pre>
</blockquote>
<br>
</body>
</html>

- --------------080002050707030402020601--

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------------------------------

Date: Tue, 25 Mar 2003 08:22:32 -0500
From: "John Berryhill Ph.D. J.D." <[email-masked]>
Subject: Re: [ga] New TLD White Paper released

From: "Ramesh Kumar Nadarajah" <[email-masked]>

> Question for the professionals: Does it make a difference that the ccTLD
> community, ICANN and the GAC operate based on the principle stated in
> RFC 1591

No, it doesn't.  The questions of (a) what IANA voluntarily chooses to do,
and (b) what a nation is entitled to have by right, are two entirely separate
questions.

I can certainly publically state that I intend to use my home computer to
further what I deem to be the best interests of the nation of Madagascar.
That does not give the government of Madagascar an enforcible right to come
to my house in order to possess or control my computer.

Thinking that nations "should" control corresponding ccTLDs and believing
that nations "ought to" control corresponding ccTLDs, and posting
vociferously to the GA list that it would be a wonderful thing to have
nations control corresponding ccTLDs, simply do not vest nations with a
"right" to control those TLDs.  The owner of a zone file can follow whatever
whims its heart desires.

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------------------------------

Date: Tue, 25 Mar 2003 09:20:23 -0500 (EST)
From: "Michael Froomkin - U.Miami School of Law" <[email-masked]>
Subject: [ga] Re: "Does it make a difference that the ccTLD community..." ???

On Tue, 25 Mar 2003, Ramesh Kumar Nadarajah wrote:

> 
> Thank you. That clarifies matters.
> But if over the next decade or so:
> 1. redelegations are demanded by national governments on the basis that 
> the existing ccTLD manager is not serving the Local Internet Community; and

that's just local law

> 2. governments begin enacting legislation that they have control over 
> their portion of cyberspace (however defined and whether enforceable or not)
> in your opinion, would that amount to "international custom"?

It usually takes much longer than that.   Depends also how many.

> 
> Thank you again for the clarifications.
> 
> - ramesh -
> 
> Michael Froomkin - U.Miami School of Law wrote:
> 
> >Let me clear up a confusion: the "custom" at issue is state practice, not
> >what private firms do.
> >
> >Neither ICANN, GAC nor ccTLDs are recognized international state actors.
> >GAC is an advisory body to a private firm, so even though governments send
> >representatives it has no status in public international law.
> >
> >On Tue, 25 Mar 2003, Ramesh Kumar Nadarajah wrote:
> >
> >  
> >
> >>Sorry, do not see relevance of a complete list of ccTLDs. If you are 
> >>disputing the existence of a ccTLD community, I suppose it comes down to 
> >>a question of definitions.
> >>
> >>I am referring to the extract from Article 38 of the statute of the 
> >>international court of justice as quoted by Prof Froomkin:
> >>
> >>"b. international custom, as evidence of a general practice accepted as
> >>law;"
> >>
> >>If there is general practice by the members of the GAC, ICANN and the 
> >>ccTLDs which are active in the ICANN-related dialogue (whether or not 
> >>they form a community), can it be construed as international custom? And 
> >>assuming RFC 1591 is the document that records the principle behind that 
> >>general practice, if it can be considered a general practice. Could it 
> >>be merely a question of time before a behaviour becomes acknowledged as 
> >>general practice?
> >>
> >>- ramesh -
> >>
> >>Jim Fleming wrote:
> >>
> >>    
> >>
> >>>"Does it make a difference that the ccTLD community..." ???
> >>>
> >>>====
> >>>
> >>>Can you first provide a **complete list** of the TLDs in the so-called "ccTLD community" ?
> >>>
> >>>2-Letter TLDs do not imply ccTLD, they may imply Valuable TLDs, but not so-called ccTLDs.
> >>>
> >>>If the U.S. Government decides to remove .FR and .DE from their root servers, there is little anyone can do about it...and, that
> >>>does not remove .FR and .DE from the name space...because modern DNS software does not use ANY root servers...people would be fools
> >>>to be tied to a single point of control and failure...
> >>>
> >>>As for the Top 2,048 TLDs...Americans can self-select (via free market selections) which TLDs they prefer...they have the bandwidth
> >>>and the new services are tied to having a lot of bandwidth and the rest of the world will not be at that table...the laws of physics
> >>>can not be changed...bits only move so fast from one place to another...take for example the RIO situation...you could have 400+
> >>>people in meatspace going to the wrong RIO to meet...and they have no bandwidth to be reconnected via the InterNAT...they are being
> >>>positioned further and further from the big island with .NET as the center...some of the so-called ccTLDs will of course disappear
> >>>into the ocean...literally...
> >>>
> >>>
> >>>----- Original Message -----
> >>>From: Ramesh Kumar Nadarajah
> >>>To: Michael Froomkin - U.Miami School of Law
> >>>Cc: [email-masked] ; Rodrigo Orenday Serrato ; [email-masked] ; [email-masked] ; [email-masked] ; [email-masked]
> >>>Sent: Tuesday, March 25, 2003 6:30 AM
> >>>Subject: Re: [ga] New TLD White Paper released
> >>>
> >>>
> >>>
> >>>Question for the professionals: Does it make a difference that the ccTLD community, ICANN and the GAC operate based on the principle
> >>>stated in RFC 1591 which  says:
> >>>"These designated authorities (i.e. the ccTLD manager) are trustees for
> >>>the delegated domain, and have a duty to serve the community.
> >>>
> >>>The designated manager is the trustee of the top-level domain for
> >>>both the nation, in the case of a country code, and the global
> >>>Internet community."
> >>>If they are trustees, the beneficiaries appear to be the nation (state?) for a ccTLD. Equitable ownership?
> >>>
> >>>Regards,
> >>>
> >>>- ramesh -
> >>>
> >>>
> >>>Michael Froomkin - U.Miami School of Law wrote:
> >>>
> >>>I am afraid you are confusing national law and international law (and
> >>>international public law with international private law). What you have
> >>>written is (sort of, in a very basic and oversimplified fashion) the rule
> >>>for national law. But national law does not (much) extend beyond the
> >>>state's borders.
> >>>
> >>>Public International law is quite different.  Simplifying, the sources of
> >>>international are broadly considered to be those found in Article 38 of
> >>>the statute of the international court of justice (cf.
> >>>http://www.un.org/Overview/Statute/chapter2.html), to wit:
> >>>
> >>><blockquote>
> >>>
> >>>a. international conventions, whether general or particular, establishing
> >>>rules expressly recognized by the contesting states;
> >>>
> >>>b. international custom, as evidence of a general practice accepted as
> >>>law;
> >>>
> >>>c. the general principles of law recognized by civilized nations;
> >>>
> >>>d. subject to the provisions of Article 59, judicial decisions and the
> >>>teachings of the most highly qualified publicists of the various nations,
> >>>as subsidiary means for the determination of rules of law.
> >>>
> >>></blockquote>
> >>>
> >>>I cannot prove to you a negative, but I have searched high and low -- I am
> >>>writing an article about this very issue -- and it is my contention to you
> >>>that not a single one of these four sources exists to support the
> >>>proposition that a state "owns" the ccTLD whose TLD is identical to the
> >>>ISO country code associated with that state as a matter of public
> >>>international law. [It cannot be international private law as there is
> >>>neither treaty nor contract to support this claim.] Note, in this context,
> >>>that the ISO is itself a private body.  If the matter is so obvious,
> >>>surely someone could come up with a citation prior to the GAC's
> >>>declaration that this rule was already a fact?
> >>>
> >>>Of course, a state that does not already control its cognate ccTLD could
> >>>apply its national rules to take the ccTLD from its domiciliary [since the
> >>>delegee of the ccTLD must be resident]. In the absence of some principle
> >>>of public international law lodging the ownership of the ccTLD in the
> >>>state a priori, the state must do this act in conformity with its own
> >>>rules: in some places that means it can expropriate at will, in others it
> >>>could threaten to torture the delegee, but in still others it may have to
> >>>follow due process and/or offer compensation.
> >>>
> >>>The significance of the debate we are having is that, were it the case
> >>>that there were an existing rule of public international law which stated
> >>>that ownership of the ccTLD was (always?) (inalienable?) vested in the
> >>>state, even a civilized state would not need to observe domestic due
> >>>process, and would never need to provide compensation, but could simply
> >>>take the ccTLD directly.
> >>>
> >>>There are indeed rights here, but they are rights that sound in
> >>>international private law: the rights of the ccTLD delegate to the quiet
> >>>enjoyment of his agreement with IANA during good behavior without
> >>>interference from outsiders to the relationship.
> >>>
> >>>I hope this has helped you understand why you have used false premises to
> >>>reason to an incorrect conclusion.
> >>>
> >>>
> >>> 
> >>>
> >>>      
> >>>
> >>
> >>
> >>    
> >>
> >
> >  
> >
> 
> 

- -- 
		Please visit http://www.icannwatch.org
A. Michael Froomkin   |    Professor of Law    |   [email-masked]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
                        -->It's warm here.<--

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------------------------------

End of GA-DIGEST V1 #1646
*************************