[At-Large] [lac-discuss-en] GigaOM article : Louis Vuitton asks for SOPA-like seizure of hundreds of websites

Karl Auerbach karl at cavebear.com
Tue May 15 01:37:13 UTC 2012

On 05/14/2012 05:38 PM, Carlton Samuels wrote:
> Karl:
> So you're not so happy that in the RT's construct, standing to contest is
> not granted to other than those groups or classes now  enumerated.
> I should think the RT's  major concern is vested in the term
>   'enforceable'.  Maybe what we need to do is contest a broader/fuller
> meaning of the term 'enforceable' and petition for unnamned classes to be
> added and given standing, no?

Yes.  The reason that I find third party beneficiary terms in ICANN's 
contracts to be something to be much needed is that the actual parties 
to ICANN's contracts often do not act to enforce those terms thus 
leaving third parties dangling and without recourse.

It really is not hard to put a provision into all ICANN contracts that 
says, in essence, "This contract is intended to benefit all members of 
the community of internet users and as such it is fully intended that 
any individual person who is a member of that community has the third 
party beneficial right to enforce any or all provisions of this contract."

(I'm sure that a bit more felicitous language could be brewed up.)

Third party beneficiary rights are real contract rights that can be 
enforced in a court of law by people who aren't parties to the contract 

The third party beneficiary beneficiary doctrine probably varies from 
place to place; and it may (and often does) require that it be expressly 
granted by the contract to some defined group (in our case that group 
might be everybody - which could be too broad.)

But it does seem to me that we who use the domain name system ought to 
be able to have knobs and levers that we can twist and pull to require 
that those who have contracts under ICANN actually abide by the terms of 
those contracts even if ICANN or the other parties sleep on their 
contract rights.

ICANN, however, has a strong dislike of third party beneficiary rights - 
that comes from their overprotective law firm, Jones Day - but it is 
something that they could do if the spirit moved 'em - but it needs to 
be done *while* the contracts are written as it can't automatically be 
added later.


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