At 10:38 PM 2/11/99 -0500, you wrote:
>I may fall out of my chair, but I am not laughing. Bill Lovell is correct as
>far
>as he goes: WIPO has no authority to create administrative law. But the
>problem is
>ICANN, not WIPO per se. If ICANN, in its monopoly position, decides to adopt
>WIPO's recommendations then it can exploit its monopoly position to force end
>users to "contract" to those terms. I encourage all of you on the right
side of
>this issue to begin discussion of legal responses to such an evil alliance.
>ICANN
>clearly intends to exploit its bottleneck power over DNS to make itself into a
>global regulator. This may very well be the undoing of ICANN. But all
>indications
>are that it does intend to do so.
>
I'm not laughing, either, but with apologies to Milton I must suppress a giggle
over the phrase "all of you on the right side of this issue": who is going to
claim not to be?
But seriously, I posted a thing just a bit ago which said that the problem
with WIPO has an echo in ICANN, expressed more or less in the query,
"which of you in The Netherlands, Scotland, etc., etc., want a bunch of
faceless nobodys in La La land taking your domain name away from you?"
The legal analysis is quite simple: look at the documents which set up
ICANN -- and defining the nature of the Dept. of Commerce, for that
matter -- and see where it says that either agency has the authority
to amend the Lanham Act. Can't find it? And no, you won't, either. In
the U. S. we have a separation of powers which says that legislatures
legislate, the judicial branch adjudicates, and the executive branch in
particular executes the policy that has been given to it: it has no power
to create any policy that wreaks havoc with existing legislation, and
while many executive branches can make rules and regulations --
the Code of Federal Regulations is full of them -- they have to do so
through the usual rule making procedure, publication in the Federal
Register, etc., etc., and even then only if the authority for such rule
making has been explicitly given to them. Look in the documents
noted above and see where it says ICANN has rule making authority
of the type that would appear in the Federal Register. Not there?
If so, tell ICANN to stuff it. If you find anything, subscribe to the
Federal Register and see what's been published. When you see
anything there which would seek public comment (as any such
proposed regulation must), why, then, you can have a field day!
Now THAT is "democracy in action," and the various alphabet
soups that propose to set up this and that set of rules might well
adopt that procedure as a model.
Bill Lovell
