Re: [ifwp] CLINTON ADMINSITRATION TO ESTABLISH PUBLIC AUTHORITY (NEW IANA CORP.) TO RUN INTERNET Why I Find the White Paper Process to Have Been a Fraud - Magaziner's so called open process is ending in ultimatums and deals

["Martin B. Schwimmer" <martys@interport.net>]

Mr. Cook wrote the most interesting post of the day (and certainly the one
with the longest Subject), however I have some quibbles.  


>NSI does not have the financial depth to survive if
>it were forced to endure the bizarre solution of being required to warranty
>and maintain on behalf of its competitors the systems that it developed.

NSI exceeds the terms of its orginal contract if it has to do this for
"Competitors" and not merey "scucessors."  See
http://rs.internic.net/nsf/agreement/agreement.html which says:

        E. Final Report

        The Awardee shall submit electronically and in ten hard (10) copies
        a final report to NSF at the conclusion of the Cooperative Agreement.
        The final report shall contain a description of all work performed and
        problems encountered (and if requested a copy and documentation
        of any and all software and data generated) in such form and
sufficient
        detail as to permit replication of the work by a reasonably
        knowledgeable party or organization.

NSI signed this agreement in 1993 so it had some ideas of the risks
involved.  Check out NSI's various SEC filings on EDGAR.  It knew about the
risks and advised its shareholders of those risks.



>>
>As far as I know there has never been a situation where the holder of a
>cooperative agreement was forced by the US government to continue the
>cooperative agreement against its will. 

If NSI agreed, then it wasn't against its will.  Is it wrong for the USG to
use leverage (See below).


 Only in a case of formal "takings"
>under the doctrine of "eminent domain" (which implies an overriding
>government interest that would appear inconsistent with the announced White
>House intent to disengage from involvement) can the government compel the
>use of private property for a public purpose and in such cases compensation
>must be paid.

The Section from the Cooperative Agreement quoted above at a minimum grants
the USG a license in the "private property" the Government and the domain
name registrants paid NSI to create.  So what "takings" are you referring to?


>
>Consequently, NSI reasoned that if it simply declined NTIA's offer, it
>could probably survive.  After all, if NSI did not chose to cooperate,
>could the Department of Commerce take over its database and resister and
>bill for 140,000 new registrations per month?  Not likely. 


This was that leverage I was referring to.


 Meanwhile the
>government rested its case that since, during the cooperative agreement NSI
>had always accepted the authority of the US gov't as exercised by the NSF,
>all it needed to do was tell NSI that the gov't was now exercising its
>authority that NSI dismantle 80% of its business and that it expected
>obedience.


Which is its right under the contract.  The percentage of NSI's business is
irrelevant, it could be 100% of its business - so what.  The contract had a
term.  The Government has a right not to renew a contract.  If NSI based
the bulk of its business on a single contract with a single party that had
to be renewed in several years, then it should live and be well, but that
has zero relevance to how the US Government (that would be my
representative as a taxpayer) should treat NSI in negotiations.  I don't
want my government to be taken to the cleaners by slick operators.
>
>


>
>Everyone agrees that if NSI doesn't sign and accept the government
>"nationalization" of the 80% of NSI's business represented by .com, .org
>and .net  represented by the non negotiable "terms" that the two parties
>will wind up in court. 


To call it nationalization kind of implies that the .com TLD was NSI's to
begin with.  I recall that it was done it its capacity as a government
contractor.  Furthermore, in the various lawsuits against NSI, NSI has gone
so far as to hold itself out as a member of the executive branch when
seeking to defend itself.




 >I ask what if the FCC had gone to AT&T in the 1984 divestiture
>and said: develop an operations manual for your competitors?

See the above contract.  They had to give documentation to its successors
who might or might not be competitors.  They signed the contract (and
re-negotiated it several times for better terms).


>>At any rate,  for the Patent and Trademark Office there was the smell of
>big bucks in the air.  


It is interesting that in a post that discusses a company such as NSI which
(allegedly) incurs costs below $10 per domain name and sells it for $70
(these alleged numbers are from the "infrastructure tax" case), that it is
a government agency (where pretty much every professional working in the
PTO would make more money in the private sector) which you paint as being
driven by money.  I'm not saying that the PTO is the paradigm of government
efficiency, I just think that some of the other players in this role are
motivated by the greenback, perhaps a little bit more than the PTO.



> The administration, in it's enthusiasm for WIPO and their global
>economics model is siding with huge businesses who are eager to protect
>their vested interests against upstarts like NSI, IO Design, Iperdome and
>the Open Root Server Coalition.

SAIC is an upstart which has generals on its Board and a former White-House
"wise man" as its mouthpiece.

>
>>The IANA Negotiations
>
  The IANA -  NSI Draft 4 was
>admired.  

Except for the clauses which were viewed as the midnight-giveaway
provisions to NSI.



>When the the open process was followed, clause (d) and (e) were put in the
>document. 

I'm not sure everyone on this list will agree that those clauses were those
clauses were the result of the open process, or of closed-door
negotiations.  It was open, why was there wide condemnation of the clauses?




 When foreign governments and inveterate NSI haters screamed, any
>last shred of openness disappeared.  What the main stream press failed to
>note was that ripping out (d) and (e) also deprived other (smaller) U.S.
>entrepreneurs such as (IO Design's .web and Iperdome's .per of any standing.

I agree as to clause (e), but are there contracts currently in effect
between IOD and Iperdome that would be affected by clause (d)?


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