On 18-Jan-99 Amadeu Abril i Abril wrote:
<snipped>
>(3) other related subjects,
> including the relationship between the rights of trademark owners and
> the rights of domain name registrants.
>From where does the DNSO draw the legal authority to make such a determination
of the relationship between domains and trademarks?
There is no legal authority.
The facts are this :
1) If clauses like this are included, LAWSUITS regarding these provisions are
INEVITABLE.
2) If clauses like this are NOT included, nothing happens, except the DNSO
loses some corporate support (probably meaning funding).
So we violate the rights of domain name holders in the name of money?
It is blood money, pure and simple.
I guarantee you that any actions along these lines will result in lawsuits that
may completely and totally invalidate the work that has gone into this process.
Not including it only forces the Trademark lobby to go back to trying
(unsuccessfully) to convince legislatures to enact more laws for them.
We here the DNSO talking about how it won't be influenced by the interests of
small minorities of stakeholders, but this conflicts with their current course
of action. Trademark holders make up such a small subset of the stakeholder
community, but because they hold the purse strings the DNSO wants to get its
hands on (and the political influence to try and guarantee them acceptance
without true consensus) they are placing TM interests ahead of all else.
This is UNACCEPTABLE in any form, and anyone who gives these actions the
SLIGHTEST legitimacy by recognizing it is committing a gross violation of the
rights of all domain name holders.
> The objectives of the DNSO shall be carried out via means that are
> open, transparent, and non-discriminatory. The DNSO will strive to
> treat all parties fairly.
Nice claim, but it doesn't hold up in fact. You are already discriminating
against non-trademark holding domain name holders by putting these small
minority interests above everyone elses.
How many domain name holders have registered trademarks? A fraction of a
percent? OK, Maybe 2% TOPS and that is being generous. The remaining domain
name holders get grouped into a "General Membership." These two groups will
have equal voting under these rules.
Can't you see the unfairness here?
The interests of 2% of the domain name holders are of EQUAL weight to the
interests of 98% of the domain name holders.
It doesn't matter if my percentages are off 1 or 2 percent, the differences
will be just as large, and the unfair and unequal representative of interests
will be just as bad.
> The DNSO will foster and respect diversity
> of opinions. The DNSO will work towards rough consensus on all
> issues. The DNSO will conduct all of its business in an open manner.
Please Add "Except for in the drafting of it's bylaws"
> The DNSO is an organization with the Internet at its center. It will
> develop appropriate procedures for its deliberations. To the
> greatest extent possible the DNSO will conduct its business online.
> It shall be possible to fully participate in all decision processes
> of the DNSO without physical meeting.
But not possible to participate in the drafting without attending a physical
meeting. What hypocrisy.
> Any legally defined entity or individual person is eligible to be a
> member of the DNSO. Membership at this level is a "General
> Membership". [2]
There goes the general membership clause I mention above...lets see where it
goes.....
> Every general member of the DNSO must also be a member of one or more
> of the DNSO Constituencies, described in ARTICLE III, Section 2. As
> described in ARTICLE XI, general membership in the DNSO requires that
> the member fill out an application, pay yearly DNSO general
> membership fees, and be able to provide proof of identity. A DNSO
> member who is a member of a Constituency will also be required to pay
> any fees associated with being a member of that Constituency, and may
> have to meet additional requirements.
>
> As described in ARTICLE XI, Section 3, members of certain
> Constituencies may be assessed ICANN support fees, in addition to
> DNSO and Constituency membership fees. [3]
>
>
> Section 2. Membership in Constituencies [4][5]
>
> The DNSO shall be composed initially of five [six] Defined
> Constituencies ("Defined Constituencies"), plus an At-Large
> Constituency, for a total of six [seven] initial Constituencies.
> Constituencies may be removed or created, and the defining criteria
> for membership in a Defined Constituency may be changed through
> amendment to these bylaws, as described in ARTICLE XIII.
>
> The original set of Defined Constituencies, with qualifications for
> participation in each, are as follows [In alphabetical order at ICC
> suggestion]:
>
> 1. At-Large: a special Constituency comprised of all DNSO
> members who are not members of any other Constituency. No member
> of any other Constituency may be a member of the At-Large
> Constituency, and the At-Large Constituency shall not be subject
> to any Constituency membership fee.
>
> 2. Businesses and other organizations: a DNSO member who is any
> other business or organizations (defined as any legally
> constituted organization with a legitimate interest in Domain
> Name issues),[6]
>
> 3. Infrastructure and connectivity providers: a DNSO member who
> is a network operator or service provider (defined as a legal
> person operating a name server for clients and offering Internet
> connectivity to third parties),
>
> 4. Registrars: a DNSO member who is a registrar of
> generic/global or country-code TLDs (defined as an entity with a
> direct contractual relationship with a registry as defined
> below),
>
> 5. Registries: a DNSO member who is a DNS Top Level Domain
> ("TLD") registry (defined as an entity with write authority to a
> zone referenced by a TLD),
>
> 6. Trademark and Anti-counterfeiting interests: a DNSO member who
> is an organization representing trademark interests, defined as
> entities whose primary interest is the protection of trademarks
> or the effort to stop trademark counterfeiting and infringement),
> or owners of trademarks [7],
Here we go. That small subset of interests gets put on an EVEN keel with the
vastly larger non-trademark holder stakeholder groups.
> [7. Unspecified Human rights/free speech/public
> Interest/Consumer Protection groups: ...TBD...[INTA suggestion]]
Their attempt to throw a bone out maybe?
>
> Except for the special case of the At-Large Constituency, a member of
> the DNSO may be a member in more than one Constituency if it
> meets the qualifications for each of the Constituencies in question,
> and pays the membership fees for each such Constituency. Also, a
> Defined Constituency may have a membership requirement that is
> conditioned on membership in another Constituency or Constituencies.
Lets examine this.
Trademark holders can easily qualify for how many of these
constituencies?
1) Business and Organization
2) Infrastructure and connectivity Providers (the rules here are flimsy and
easily met by most of the larger ones)
3) Trademark interests
A typical non-trademark domain name holder qualifies for :
1)At Large OR
2) Business
But NOT both. Hmm, either way you cut it they get to be a part of ONE, and
trademark holders get to be apart of two, and probably 3.
More entrenching of their dominance.
> Disputes concerning qualifications for membership in a Constituency
> or in the DNSO itself shall be referred to a Membership Committee, as
> described below in ARTICLE IV, Section 6(B).
We'll hit this one later.
<snipped>
>
> ARTICLE IV. NAMES COUNCIL
>
>
> Section 1. Purpose and Powers
>
> The Names Council shall act as the executive body of the DNSO. It
> shall also fulfill the role of "Names Council" as described in the
> ICANN Bylaws.
>
> The Names Council shall determine policies regarding TLDs, including
> operation, assignment and management of the domain name system and
> other related subjects, and, in accordance with Article VI, Section
> 3(a)(ii) of ICANN's Bylaws, the Names Council shall make
> recommendations on such subjects to the ICANN Board.
>
> The Names Council shall select three ICANN board member nominees as
> described in ARTICLE IV, Section 10, below.
>
> The Names Council shall function as the executive authority of the
> DNSO. The Corporate officers, if any, shall
> operate at the direction of the Names Council. [8]
>
>
> Section 2. Representative Composition [9]
>
> The Names Council shall consist of 21 [XX] members, elected from time
> to time by the members of the DNSO, following the procedures set
> forth below. In addition, he President of the DNSO shall sit as a
> non-voting ex officio member of the Names Council. The
> Constituencies shall each have the right to be represented by the
> following numbers of members of the Names Council:
>
> 1. At-Large - 3 [XX]
>
> 2. Business and other organizations - 3 [XX]
>
> 3. Infrastructure and connectivity providers - 3 [XX]
>
> 4. Registrars - 3 [XX]
>
> 5. Registries - 6 [XX]
>
> 6. Trademark and Anti-counterfeiting Interests - 3 [XX]
>
> [7. Unspecified Public advocacy and Consumer Protection groups - [XX] ]
OK, lets examine this.
Trademark holders have a direct vote in the election of.....6 and possibly 9
(provided trademark holders dont also try and qualify in the vague Public
Advocacy group).
Domain Name Holders get....3 (not 6, since they have to CHOSE which group they
get to be a part of, and not get to be in both)
>
> Section 3. Geographical Diversity [10]
>
> In order to assure geographical diversity among members of the Names
> Council, the members of the Names Council representing each
> Constituency must each be from different geographical regions, unless
> there are more such representatives than there are regions. In this
> latter case no region shall have more than one more representative
> than any other region. The geographical regions shall be those set
> forth in Article V, Section 6 of the Corporation's bylaws.
>
> [In particular, because the Registry Constituency is represented by 6
> members of the Names Council, and there are only 5 regions, among the
> Names Council members representing the Registry Constituency there
> will be one region represented by two individuals.] [11]
>
>
> Section 4. Election
>
> Within six weeks of acceptance by ICANN of this organization as the
> DNSO described in the ICANN bylaws, the Initial Members and Initial
> Constituencies of the DNSO will elect members of the Names Council,
> as described in ARTICLE V.
>
> Members of each Constituency shall nominate individuals to represent
> that Constituency. Nominations within each Constituency may be made
> by any member of the Constituency, provided, however, that each
> member of a Constituency may make no more than one nomination for a
> Names Council member representing that Constituency. An entity that
> is a member of more than one Constituency may make one nomination for
> each Constituency of which it is a member. Every nominee shall be
> identified as representing a particular geographical region.
More entrenchment....
> Elections for Names Council members shall be held once each year for
> vacant seats. The term of office for each member of the Names
> Council is three years, staggered so that each year one third of the
> Names Council members shall be elected.
>
> Each general member of the DNSO may cast one vote for one nominee for
> membership in the Names Council from each of the Constituencies.
>
> The winning nominees from within each Constituency shall be
> determined as follows:
>
> Within the group of nominees for each Constituency, the nominees
> shall be grouped according to their geographical identification, and
> shall be ranked according to the votes received. Winners will be
> selected by the following criteria: Nominees identified with regions
> with the least number of current representatives for the Constituency
> will be considered as a group. Within this group, the nominee with
> the most votes is selected, and is then considered a member of the
> group of current representatives. This procedure is repeated until
> there are no vacancies. Any ties shall be broken by random
> processes.
>
> If this election process leaves unfilled seats because of
> insufficient geographical representation those seats will remain
> empty until the the Constituency can field a slate of nominees with
> adequate geographical representation, and the Names Council can call
> an election.
I will examine this later, but I have this feeling in the pit of my stomach
that this works to the minority interest also, since they are more likely to be
able to guarantee diversity of their memberships....
> The term of office for members of the Names Council shall be three
> years. However, for the first election the first third of the
> nominees selected through the above process shall receive a three
> year term, the second third shall receive a two year term, and the
> remainder shall receive a one year term. In the event of a
> resignation or other event that disturbs the even distribution of
> terms a similar fair process of adjusting the terms of newly elected
> members shall be used to regain an even distribution. If for any
> reason fewer than the seats allocated to a Constituency are filled,
> the seats remain unfilled until the next election. [12]
>
> In the event of a Names Council member's death, resignation,
> ineligibility or inability to perform the duties of a member of the
> Names Council, a majority of the Names Council then in office shall
> have the power to designate a successor to serve for the remainder of
> the term of such Names Council member. Only a person eligible to
> serve as a Names Council member shall be eligible for such
> designation.
>
>
> Section 5. Transparent and Open Processes
>
> The processes of the Names Council, as well as the Constituencies and
> the general membership, shall be governed by the same principles of
> open and transparent non-discriminatory processes as those of ICANN.
Well, there goes the hope of a OPEN DNSO. They are following ICANN's lead....
> It is the intent of the DNSO that, at least initially, there will be
> significant review by the Constituencies over the decisions of the
> Names Council; over time, the Constituencies may agree to reduce the
> extent of review. Therefore, in all cases the Names Council shall
> seek input and review of its recommendations and Board nominations
> from each of the Constituencies. [13]
>
>
> Section 6. Dispute Resolution
>
> A. Fair Hearing Panels
>
> The Names Council will appoint, as necessary, Fair Hearing Panels to
> collect information concerning grievances, complaints, and conflicts
> that may arise, to make recommendations to the Names Council for
> possible remedial or other action. The Names Council shall establish
> the procedures and standards for Fair Hearing Panels, perhaps through
> designation of a committee to study the issue.
So, the interests that dominate the Names Council will decide how fair hearing
panels are operated and adhered to. Rather than hard code the principle of
FAIRNESS. Of course, it is in their interest to not have a strong fair hearing
panel rule.
> B. Membership Committee
>
> Disputes concerning membership in the DNSO or membership in a
> Constituency will be heard by the Membership Committee, composed of
> one member selected from each Constituency, and elected by the
> members of that Constituency, and a chairperson appointed by the Names
> Council. The Membership Committee shall also be responsible for
> establishing objective rules for verification of identity of
> entities applying for membership, for designing and implementing an
> application form, and other matters pertaining to membership.
OK, so....
Trademark interests will have a say in...2 or 3 seats on the membership
committee. Domain name holders.....1
Not a good basis for fair and openness, and the membership committee could end
up being a very powerful committee, controlling the definition memberships.
Whose side do you think will be heard the most?
> C. Reference to ICANN Board
>
> If the Names Council determines that a dispute is particularly
> serious, the Names Council may refer the dispute to the ICANN Board
> for resolution.
>
>
> Section 7. Meetings
>
> The Names Council shall elect a from their number a Chairperson of
> the Names Council, to call and preside over meetings of the Names
> Council.
>
> The members of the Names Council shall meet from time to time, either
> physically, or through telephone, video, or online means. The
> time, manner, and place of meetings shall be selected by the Chair of
> the Names Council. The place of each physical meeting shall change
> to accommodate the international composition of the Names Council.
> Special or emergency meetings may be held at such times and places
> (1) as the Names Council may decide, (2) at the call of the
> Chairperson, or (3) on the written requests of the majority of the
> members of the Names Council.
>
>
> Section 8. Decision Processes
>
> No formal decision of the Names Council shall require physical
> meeting; the Names Council shall develop procedures so that all
> decisions will allow for online, telephone, or video participation
> and voting. The Names Council will also ensure that online procedures
> are available for all decisions made through votes of the general
> membership of the DNSO.
>
> To the extent possible decisions of the Names Council shall be made
> on a rough consensus basis, after consultation with the
> membership of the DNSO. Such decisions shall be recorded as
> "consensus decisions". Consensus will be assessed by the Chair of
> the Names Council. If two Names Council members formally object to
> the measure in question, the Chair shall determine that a consensus
> has not been achieved, and shall call for a formal vote. [14]
And since domain name holders only have one seat, and they must share that one,
the dominance is even more clear. They won't even have the power to require a
formal on the record vote.
This means less accountability.
That also works in the interests of the TM lobby against domain name holders.
> In such cases where consensus cannot be achieved and a formal vote is
> deemed necessary, the matter shall be publicized before the DNSO for
> 15 days, and then a formal, public, recorded online vote of the Names
> Council shall be taken. The measure shall be deemed to have been
> passed if two thirds of the votes cast are in the affirmative.
> However, in any policy decision the count shall be reported in full
> to ICANN, so that ICANN may independently judge the extent of support
> for the proposition.
>
>
> Section 9. Reimbursement
>
> The members of the Names Council shall not receive compensation for
> their service on the Names Council; however, they may be reimbursed
> for the reasonable direct expenses of participation in the Names
> Council.
>
>
> Section 10. Selection of DNSO Representatives for the ICANN Board
>
> Pursuant to Article V, Section 4 of the ICANN By-laws, the DNSO is
> accorded three (3) seats on the ICANN Board. Selection of the DNSO
> representatives for the ICANN Board shall rest with the Names
> Council, through the procedure described herein.
>
> The Names Council shall appoint a nominating committee to research,
> investigate, and interview potential candidates for the DNSO seats on
> the ICANN Board. Members of the nominating committee shall be
> selected from the membership of the DNSO. Upon completing a list of
> candidates, said list shall be forwarded by the nominating committee
> to the Names Council.
>
> The Names Council shall ensure that all candidates have a significant
> understanding of the relationship between the Internet and business
> practice, intellectual property, freedom of expression, and consumer
> protection. Approval of a candidate for the ICANN Board shall
> require a 2/3 majority vote by the Names Council.
>
Now the Trademark lobby dominated Names Council will have a HUGE say in the 3
members of the ICANN board.
>
> ARTICLE V. INITIAL MEMBERSHIP AND INITIAL NAMES COUNCIL
>
>
> Section 1. Initial DNSO and Constituency Membership
>
> The Initial membership of the DNSO shall be drawn from those entities
> who sign the DNSO application to ICANN. These entities must specify
> a single Constituency to which they wish to belong, and supply the
> appropriate initial membership fee in a timely manner. The Initial
> membership of each Constituency shall be composed of those Initial
> members that indicated their desire to be a member of that particular
> Constituency. After the Initial Names Council is formed, an Initial
> Member may, with the approval of the Initial Names Council, elect to
> become a member of other Constituencies, in accord with the
> definitions in ARTICLE III, Section 2.
>
>
> Section 2. Initial Names Council
>
> The Initial Names Council is a distinct entity from the Names
> Council, and shall only be active until the Names Council is formed,
> as provided in this Article. The Initial Names Council shall consist
> of one member from each of the Initial Constituencies, selected by
> majority vote of the initial membership of the respective
> Constituency.
>
> Members of the Initial Names Council shall serve a six week term or
> until the first election of the DNSO, whichever occurs first, unless
> such term is extended for an additional period by majority vote of
> the current membership. Members of the Initial Names Council
> [shall/shall not] be eligible for additional service on the Names
> Council at the end of the member's term on the Initial Names Council.
>
> The powers and responsibilities of the Initial Names Council shall be
> limited to establishing the DNSO and ratifying its bylaws,
> establishing bank accounts and other necessary financial structure,
> verifying the identity of new members and collecting their dues,
> aiding in the organization of the Constituencies, and holding the
> first election for the full Names Council.
>
> The Initial Names Council will establish an online voting system
> that will be available for the election of the first election of the
> Names Council, and thereafter.
>
> Members of the Initial Names Council of the DNSO shall not be
> eligible to serve as DNSO representatives for the initial ICANN
> Board, and they shall not select the three DNSO representatives to
> the initial ICANN Board.
>
> The first 3 DNSO representatives to the initial ICANN Board will be
> selected by the first full Names Council, as described in ARTICLE IV,
> Section 10.
>
>
>
> ARTICLE VI. OFFICERS [15]
>
>
> Section 1. Election
>
> The officers of the DNSO shall be a President, a Secretary and a
> Treasurer, each of whom shall be elected from DNSO members at the
> Annual election by a majority vote to serve until the next Annual
> election, or until a successor shall have assumed the duties of the
> office. No one shall be eligible to serve successive terms as
> President.
>
>
> Section 2. President
>
> The President shall preside at all meetings of the DNSO, and shall be
> directly responsible to the Names Council. The President shall serve
> as an ex officio member of the Names Council, but shall have no vote
> in the Names Council. The President shall submit at each Annual
> Meeting of the DNSO a report of the activities of the DNSO during the
> proceeding year.
>
>
> Section 3. Secretary
>
> The Secretary shall be responsible for the minutes of all meetings of
> the DNSO and the Names Council, and shall be the custodian of the
> seal and records of the DNSO. The Secretary shall perform such other
> duties as may be delegated by the Names Council.
>
>
> Section 4. Treasurer
>
> The Treasurer shall have the custody of all monies and securities of
> the DNSO and shall place same in appropriate financial vehicles and
> repositories in accordance with guidelines established, at least on
> an annual basis, by the Names Council. The Treasurer shall keep
> proper books of account and sign checks and give such surety bonds as
> the Names Council may require. The Treasurer shall make reports on
> the financial condition of the DNSO at each Annual Meeting of the
> DNSO and, whenever called upon to do so, at other meetings of the
> DNSO, the Names Council, and the ICANN Board. The Treasurer shall
> prepare a yearly budget for the Names Council. The Treasurer shall
> also perform such other duties as may delegated by the Names Council.
> All duties performed by the Treasurer shall be subject to the
> supervision and direction of the Names Council.
>
> All financial and other records in the custody of the Treasurer shall
> be open to the Names Council and the ICANN Board at all times for
> inspection or audit. On ceasing to hold office, the Treasurer shall
> surrender all records, files, books of account, monies, securities
> and other property of the DNSO to a successor or to such other person
> as shall be designated by the Names Council.
Hmm, no provision for a constituency to call for a review of the records
without approval from the Names Council....More protection against domain name
holders?
>
> Section 5. Succession
>
> In the event of the death, resignation, removal from office or
> inability of any Officer, to perform the duties of the office, the
> Names Council shall appoint a successor to serve until the next Annual
> election of the DNSO or until a successor shall have been elected and
> shall have assumed the duties of the office.
>
>
>
> ARTICLE VII. COMMITTEES
>
> Given the importance of having a global consensus on the policies and
> procedures developed by DNSO, as well as expertise relating to the
> objectives of the DNSO, the Names Council may create committees for
> such terms and with such powers and duties, as it shall deem
> appropriate. The nomination of members to each committee and their
> election by the Names Council shall be conducted in the same manner
> as members of the Names Council are nominated under Article IV,
> except that committee members shall be voted on by the Names Council
> rather than by DNSO members.
>
> Once formed, each committee shall nominate and vote for a Chairperson
> from within the committee. The nominee with the most votes shall be
> elected Chairperson for a term of one year. A Chairperson shall be
> eligible for re-election for another one-year term, but shall not
> again be eligible for election as Chairperson for a period of one
> year thereafter unless nominated for an additional term by a
> unanimous vote of the committee. The members of each committee shall
> be appointed for a term of one year, and shall be eligible for
> re-appointment for two successive subsequent terms of one year each.
> All committees shall be responsible to the Names Council for the
> performance of their duties, unless the Names Council shall otherwise
> direct. The duties of the committees shall be those indicated by
> their titles or as may be otherwise assigned to them by the Names
> Council.
>
> Regular meetings of each committee may be held without the giving of
> notice if a day of the week, a time, and a place will have been
> established by the committee for such meetings. Meetings may be held
> in person, through mailing lists or other online means, or by
> telephone, radio, television or similar means of communication. The
> committee may itself, or through the direction of the Names Council,
> establish quorum rules for transaction of business.
>
> The act of a majority of the members so present at a meeting at which
> a quorum is present will be the act of such committee. Each
> committee will maintain a record, which need not be in the form of
> complete minutes, of the action taken by it at each meeting, which
> record shall include the date, time, and place of the meeting, the
> names of the committee members present and absent, the action
> considered, and the number of votes cast for and against the adoption
> of the action considered.
>
> All action by each committee shall be reported to the Names Council
> at its meeting next succeeding such action for a vote.
>
>
>
> ARTICLE VIII. MEETINGS AND ELECTIONS
>
> The DNSO and all its components support the Internet; they are
> distributed around the world; and therefore, to the extent possible,
> all business of the DNSO, the Names Council, the Constituencies, and
> any Committees shall be conducted online, or otherwise without the
> requirement of physical meetings. The occurrence of required physical
> meetings shall be held to the minimum required by law, if the DNSO
> is incorporated.
>
>
> Section 1. Annual Meeting and Election
>
> The Annual Meeting of the DNSO shall be held at a time and place
> determined by the Names Council. Concurrent with the Annual Meeting
> will be an Annual Election of officers and Names Council members.
>
> Section 2. Special Meetings and Elections
>
> Special meetings of the DNSO shall be held at such times and places
> as the Names Council shall determine. Special Meetings shall also be
> called by the Names Council upon the request in writing of not less
> than xx percent of the DNSO Members, who shall specify in their
> request the business which they desire to be considered at the
> proposed meeting. In all such cases, if at all possible, the
> meetings will be conducted through online meeting procedures.
>
> Similarly, special Elections of the DNSO shall be held at such times
> as the Names Council shall determine. Special Elections shall also
> be called by the Names Council upon the request in writing of not
> less than xx percent of the DNSO Members, who shall specify in their
> request the proposition to be voted on. In all such cases, if at all
> possible, the vote will be conducted through online voting
> procedures.
>
>
> Section 3. Notice
>
> Written notice of any physical meeting of the DNSO shall be given
> personally, by first class mail or via the Internet not less than 30
> days before the date of each meeting and shall state the place, date
> and hour of the meeting and, if for a Special Meeting, shall also
> state the purpose or purposes for which the meeting is being called.
> [changed from 10 days to 30]
>
> Meetings shall take place via telephone or similar communications
> equipment, or via online mailing lists or similar facilities, or at
> such other place as determined by the President, Names Council
> Chairperson or Committee Chairperson and specified in the notice of
> the meeting. A meeting using telephone or similar communications
> equipment by means of which all members participating in such meeting
> can hear each other shall constitute presence in person at such
> meeting.
>
> Waiver by a member in writing of notice of a meeting, signed by the
> member, shall be equivalent to the giving of such notice. Attendance
> by a member, whether in person or by proxy, at a meeting shall
> constitute a waiver of notice of such meeting of which the member has
> had no notice, unless except when the member attends the meeting for
> the express purpose of objecting, at the beginning of the meeting, to
> the transaction of any business because the meeting is not lawfully
> called or convened.
>
>
> Section 4. On-Line Participation
>
> To ensure international and diverse participation, the proceedings of
> the DNSO and the Names Council, as well as all Committees of the
> DNSO, shall to the fullest extent possible, be conducted on-line.
>
>
> Section 5. Quorum
>
> A majority of the members of the DNSO, represented in person [or by
> proxy], shall constitute a quorum at all meetings, and the act of a
> majority of the members present at any such meetings at which there
> is a quorum will be the act thereof, unless the vote of a greater
> number is required by law, the Certificate of Incorporation or the
> By-Laws, in which case the vote of such greater number shall be
> requisite to constitute the act thereof. [16]
>
> If a vote is held by electronic mail, all members shall be deemed
> present. If, after an electronic mail election, the number of voters
> is less than the quorum, after 5 days notice to all members of the
> DNSO posted by electronic mail, the same vote may be conducted again
> with a quorum set to the number of participants in the first
> election. [17]
>
>
> Section 6. Voting
>
> [Members may vote in person or by written proxy dated not more than xx
> days before the meeting named therein. Proxies shall be filed with
> the Secretary before being voted. Except as otherwise limited
> therein, proxies shall entitle the member named therein to vote at
> any meeting or adjournment of such meeting but shall not be valid
> after the final adjournment of such meeting. A proxy purporting to
> be executed by a member shall be deemed valid unless challenged at or
> prior to its exercise, and the burden of proving invalidity shall
> rest on the challenger.]
>
> Voting mechanisms will be developed by the Initial Names Council. It
> is expected that the voting mechanism will be via email ballots.
>
>
> Section 7. Action by Written Consent
>
> Any action required or permitted to be taken at a meeting may be
> taken without a meeting if consent in writing, setting forth the
> action so taken, is signed by all necessary members.
>
>
> Section 8. Adjournment of Meetings
>
> At any meeting, if less than a quorum is present, a majority of the
> members present, either personally or by proxy, shall have the power
> to adjourn the meeting without notice other than announcement at the
> meeting until a quorum shall be present.
>
>
> Section 9. Rules of Order
>
> All meetings of the DNSO, Names Council and Committees shall be
> conducted in accordance with the most recently revised edition of
> Robert's Rules of Order, unless such conduct would be in conflict
> with these By-laws or any applicable provision of law in which case
> these By-laws or such applicable provision of law shall govern.
>
> Meetings conducted through online means, perhaps over email lists,
> shall develop appropriate Rules of Order. [18]
>
>
>
> ARTICLE IX. REMOVAL, SUSPENSION AND EXPULSION
>
>
> Section 1. Removal of Officers and Committee Chairpersons
>
> Any Officer or Committee Chairperson may be removed from office by a
> vote of two-thirds of the entire Names Council for failure or refusal
> to perform the duties of the office properly, or for conduct bringing
> the DNSO into disrepute. Absence of an Officer of Committee
> Chairperson from three consecutive meetings may be deemed by the
> Names Council to be failure to perform the duties of the office
> properly.
>
> Section 2. Suspension or Expulsion of a Member or Disqualification
>
> A. A member may be suspended for a period or expelled for cause such
> as violation of any of the By-laws of the DNSO or for conduct
> prejudicial to the best interests of the DNSO.
>
> B. A member may be temporarily or permanently disqualified from
> serving as a member for cause, such as violation of any of the
> By-laws of the DNSO or for conduct prejudicial to the best interests
> of the DNSO.
>
> C. Suspension, expulsion or disqualification of a member shall be by
> a two-thirds vote of the entire Names Council, provided that a
> statement of the charges shall have been mailed to the member under
> charges at the last recorded address at least fifteen (15) days
> before final action is to be taken thereon, accompanied by a notice
> of the time when and place where the Names Council is to take action.
> The member shall be given an opportunity to be present at the time
> and place mentioned in such notice and to present a defense,
> including the right of representation by counsel and the right of
> cross-examination.
>
>
>
> ARTICLE X. CONFLICT OF INTEREST
>
> Any contract or other transaction between the DNSO and any firm,
> corporation or association of which one or more of the DNSO members?
> are members, shareholders, directors, officers or employees, or in
> which they are interested, shall be valid, provided (i) the fact of
> such interest is previously disclosed or known to the DNSO, and (ii)
> the DNSO shall nevertheless authorize, approve and ratify such
> contract or transaction at a meeting of the DNSO by a vote of a
> majority of the members present, such interested member or members to
> be counted in determining whether a quorum is present, but not to be
> counted in calculating the majority of such quorum necessary to carry
> such vote. The awarding of contracts shall take place in a fair and
> non-discriminatory process.
>
>
>
> ARTICLE XI. FUNDING AND FEES
>
>
> Section 1. Funding
>
> The DNSO shall fund all costs of DNSO and Names Council membership
> and other meetings and communications, and all administrative and
> other costs associated with membership, from DNSO general membership
> fees and Constituency membership fees, as established from time to
> time. DNSO membership fees shall be a low fixed rate, initially 50
> US dollars per year.
>
> There shall be no Constituency fee for membership in the At-Large
> Constituency.
>
> Membership fees for Constituencies other than the At-Large
> Constituency shall be adjusted to meet the yearly budget of the DNSO,
> as described in Section 2, below. Because the budget will not be
> defined when the DNSO is created, the initial Constituency membership
> fee in all Defined Constituencies (except the At-Large) shall be 500
> US dollars per year.
>
> Membership fees are cumulative. A DNSO member must pay the DNSO
> membership fee plus the sum of all the Constituency Membership Fees
> for Constituencies of which it is a member.
>
>
> Section 2. Assessment and Collection of Membership Fees
>
> The DNSO shall fund its activities directly related to administrative
> costs of managing the membership primarily from DNSO membership fees.
> All other expenses will be funded through Constituency membership
> fees.
>
> The Names Council will calculate the income required from
> Constituency fees by summing the budgeted amount for all expenses,
> including the amount of any surplus or deficit from the preceding
> year, adding a fixed percentage of [xx]% for a reserve, and deducting
> the amount of budgeted income from DNSO membership fees.
>
> [That is:
> Budgeted expenses for next year -
> Carryover from previous year (surplus or deficit) -
> Projected DNSO membership fees +
> Required Reserve
> ----------------------------------
> Income required from Constituency Fees
> ]
>
> Liability for this amount will be divided among the Defined
> Constituencies in direct proportion to the number of representatives
> the Constituency has on the Names Council (not counting the
> representatives of the At-Large). This liability will be divided up
> among the members of the Constituency in accord with rules determined
> by those members and approved by the Names Council.
>
>
> [Example: Suppose the "Income required from Constituency Fees"
> was $750,000. There are 21 total members of the NC; 3 of them
> from the At-Large, 18 of them from Defined Constituencies, and 6
> from the Registry Constituency. Therefore, the Registry
> Constituency would be liable for 6/18 (33%) of the total
> Constituency Membership Fees, or $250,000. If there were 250
> registries, and they decided to split the fees evenly, the cost
> per registry would be $1000. Of course, they could also decide
> to assess the fees according to size of registry, or something
> like that.]
>
>
> New members' dues liability shall commence on the first of the month
> next following receipt of its application for membership, and its
> dues shall be pro-rated from that date to the end of the calendar
> year. No member shall have the right to vote, make motions, nominate
> candidates, or otherwise participate in the activities of the DNSO
> until it has paid its dues in full. The annual dues of all members
> for each calendar year shall be due and payable on xx/xx of that
> year. Notice to this effect shall be sent to each member whose dues
> remain unpaid at the end of thirty days thereafter.
>
> Any member whose annual dues remain unpaid 30 days after xx/xx shall
> be deemed to be delinquent and the rights of such members as members
> shall cease forthwith. Written notice to that effect shall be sent
> promptly to such member, and any member whose dues remain unpaid on
> xx/xx shall be dropped automatically from membership and promptly
> notified thereof. Members who have been so dropped may re-apply for
> membership on payment of any delinquency, and such application will
> be handled as a new membership application.
Notice there is no cap on the fee.
This is open for huge fiscal abuse, and higher fees will drive most
stakeholders to not join one of the more powerful constituencies. But then,
the less domain name holders in the business constituency, the better for the
Trademark holders.
Another artificial means of keeping control?
Just a little more below and I draw my initial comments to a close.
>
> Section 3. ICANN Support Fees
>
> Certain of the Constituencies may in addition pay fees for the
> support of ICANN. These fees are in addition to either general
> membership fees or Constituency membership fees. Details concerning
> these additional fees shall be developed in conjunction with ICANN.
>
> [Note: These ICANN support fees are not the fees that
> registries/registrars might have to pay to ICANN to support the
> DNS system -- those will almost certainly be collected and
> enforced through direct contract with ICANN, since DNSO has no
> way to force registries to be members of DNSO. It is not clear that
> there will actually be any fees in this class.]
>
>
> Section 4. Changing Membership Fees
>
> The basic membership fees can only be changed by resolution of the
> general membership by affirmative vote of at least 4/5 of the general
> membership voting on the resolution, with a minimum quorum of 4/5 of
> those eligible to vote. The membership may not vote to reduce
> membership fees without a substantiated showing that expenses of the
> DNSO can be met by the reduced fees.
>
>
> Section 5. Budget
>
> The Treasurer shall not later than November 1 of each year prepare
> for the Names Council a budget for the following year. The Names
> Council shall consider this submitted budget, and publish a final version
> no later than January 1.
>
>
>
> ARTICLE XII. INDEMNIFICATION
>
> The DNSO shall indemnify the Names Council, Officers, and Committee
> Chairpersons for acts within their respective authorities to the full
> extent permitted by the law of the jurisdiction of incorporation, and
> the DNSO shall indemnify to the same extent members of committees,
> other volunteers authorized to act on behalf of the DNSO and any
> employees of the DNSO. Any question as to whether a person is
> eligible for indemnification in a specific matter shall be determined
> either by a special Committee of at least three members of the Names
> Council who are not parties to the matter and who are appointed by
> the Names Council, or in a written opinion by an independent legal
> counsel who shall be designated by the Names Council.
>
>
>
> ARTICLE XIII. AMENDMENTS
>
> These By-laws may be amended at any meeting of the DNSO by a
> two-thirds [19] vote of the members, provided, that the
> Secretary shall have mailed notice in writing to all members, stating
> the proposed amendments in full, not less than twenty days prior to
> the meeting at which such amendments to these By-laws are to be voted
> upon.
>
> ================================================================
> [1] included language from ORSC bylaws
>
> [2] general membership from ICC comments
>
> [3] depending on input from ICANN, and the issue of incorporation
>
> [4] The Constituency system serves several functions: 1) It
> reduces the risk of capture by flooding of the membership; 2)
> being a member of a constituency gives additional
> representational effectiveness, a quid pro quo for the higher
> fees of belonging to a constituency; 3) an At-Large constituency
> allows individual and small business membership while minimizing
> the risk of capture of the DNSO through flooding of individual
> members. Note that the At-Large Constituency is not intended
> purely as a parking place for individuals -- small businesses or
> other organizations that may not wish to cover the higher costs
> of belonging to one of the other Constituencies may wish to
> participate through the At-Large Constituency, as well.
Further minimizing the impact of non-trademark business domain name holders in
the process......
> Constituencies are expected to form their own organizational
> substructure, as they will need to conduct votes and make
> internal decisions. They are required to maintain the same
> standards of transparency, openness, fairness, etc, as the DNSO.]
Which means little or none.
> [5] We include a possible sixth Defined Constituency that was
> mentioned by Mike Heltzer.
>
> [6] Which may included non-profit public interest, educational, and
> other institutions.
>
> [7] Trademark owners included at ICC suggestion
Despite their lack of a justification for having their own constituency.
Let's see a JUSTIFICATION of this.
> [8] Per NSI's comments concerning incorporation, these bylaws attempt
> to cover both possibilities -- incorporation or not. It is realized,
> of course, that if the DNSO is incorporated that jurisdiction-dependent
> modifications will need to be made.
>
> [9] In accord with the ICC comments, "[XX]" has been inserted next
> to each specific number of representatives, indicating where
> changes might be made. The original DNSO numbers are retained
> for reference.
>
> [10] The discussion of geographical diversity and the following
> section on voting represents a rather involved consensus reached
> after much discussion in Monterrey. Though the result is
> complex, we believe that it actually does solve a rather
> difficult problem, and that it will be very hard to come up with
> a better solution.
>
> [11] The bracketed section would obviously be removed if the
> representation numbers change.
>
> [12] This is to give a strong incentive to Constituencies to
> guarantee geographical diversity within their nominees.
>
> [13] A possible review mechanism: Any NC policy must be posted on the
> DNSO web site for 7 days; during that time, if (say) 10% of the
> membership insists on a vote, the NC will conduct an online poll
> of DNSO members; if XX% reject the policy it is killed. The
> percentages can be tuned to adjust the relative trust in the
> Names Council.
>
> [14] The term "rough consensus" is a term of art used frequently in
> the context of online Internet decision making. It may be
> unfamiliar to many.
>
> The obvious meaning is "substantial agreement among all parties",
> which could easily be formalized as a super-majority vote (80% or
> more majority). However, in the Internet context there is also
> an implied process of constant communication and incremental
> decision making, and the applicability of "rough consensus" to a
> policy making body like the DNSO not completely clear.
>
> A pure consensus decision rule grants veto power to a single
> vote; rough consensus gives great weight to dissent, but requires
> that there be multiple or "significant" dissenting voices.
> Therefore, rough consensus rules still allow veto by a small
> minority. This means that, it can't work in a situation where
> there is a minority determined to block any action -- a very real
> possibility in the DNSO.
>
> For this reason, a body like the DNSO cannot operate totally by
> rough consensus methods -- there must be a backstop method where
> hard choices can be made. In this document there is frequent
> reference, therefore, to votes with various majority criteria --
> simple majority, two-thirds, three-quarters, four-fifths, and so
> on, depending on the nature of the decisions involved.
>
> [15] The DNSO membership will elect a president, secretary, and
> treasurer. The president will sit on the names council, but have
> no vote. There aren't many responsibilities for President. Election
> will
> be for one year terms during the same election that selects the
> next roll-over of NC members.
>
> The Officers of the DNSO will take the role of fulfilling
> corporate legal requirements, if the DNSO is incorpated. They
> have no policy-making role with respect to DNS issues or other
> matters for which ICANN contracts with the DNSO, and they take
> executive direction from the Names Council.
>
> [16] Serious concerns have been raised about proxies; we try to
> avoid mention of them, but in places leave in bracketed
> reference. It is expected that online voting techniques would
> largely eliminate the need for proxies. Online voting techniques
> have implications for the quorum rules, as well.
>
> [17] A concern about voter apathy in online elections was
> mentioned on one of the lists -- this section addresses that
> concern. In an online vote it is assumed that all members
> receive notice, and that it is no more difficult to vote than it
> is to send in a proxy.
>
> [18] These are envisioned to be similar to the rules on ORSC list.
>
> [19] Noted from the ICC comments
>
>##
----------------------------------
E-Mail: William X. Walsh <[EMAIL PROTECTED]>
Date: 18-Jan-99
Time: 16:40:48
----------------------------------
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