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<p><font face="Times New Roman, Times, serif">Karl, it sounds like
you are describing waiver v.1.0. I thought v.2.0 (the current
version), was a lot more digestible. Clearly, the part about
heirs, etc. still exists in both. Without a test case, we don't
know if a certain waiver is going to survive a court challenge,
but they are intimidating. That's the whole point. <br>
</font></p>
<p><font face="Times New Roman, Times, serif">I have said I would
probably bow down and sign the current version of the waiver if
I felt my physical attendance at the meeting was important. It
is not a choice. And I wonder if this waiver signing will be
part of any ICANN related meeting -- e.g. RALO meetings, AGMs,
etc. As you say at the end, it is sad </font>"that, ICANN, an
organization whose legal purpose is "to lessen the burdens of
government" and that obtains its legal existence as a "public
benefit" corporation, feels that it must protect itself by the
Procrustean technique of chopping the rights off of those who wish
to attend its open and public meetings" <br>
</p>
<p>I will say, again, in my lengthy career as a writer, speaker,
policy analyst, etc. who attended and organized hundreds of
meetings, I never once signed a waiver or asked anyone else to do
so. Welcome to the post-pandemic world, I guess.<br>
</p>
<p> Marita</p>
<p><br>
</p>
<div class="moz-cite-prefix">On 2022-07-25 3:59 p.m., Karl Auerbach
via At-Large wrote:<br>
</div>
<blockquote type="cite"
cite="mid:4cbd0423-75b8-d919-e055-8152203126a8@cavebear.com">Wow,
that's some "waiver"! The California lawyer neurons in my head,
upon reading this thing, are screaming "California Civil Code
section 1670.5!!!!!" This provision can effectively remove
"unconscionable" terms from contracts (such as this ICANN
"waiver") or even void the entire agreement.
<br>
<br>
<a class="moz-txt-link-freetext" href="https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1670.5&lawCode=CIV">https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1670.5&lawCode=CIV</a>
<br>
<br>
There are other similar California provisions, such as 1770(a)(19)
(which is probably inapplicable because this waiver is not a sale
or lease to a consumer.)
<br>
<br>
A couple of indicia of "unconscionable"ness are things like denial
of damages and limitations on the right to seek court relief, both
of which are in the ICANN "waiver". Now, an indicator of
unconcionable-ness is not the same as being unconscionable. But
such indications are the kind of yellow bricks that paved the road
that led Dorothy to Oz. So ICANN has, via this overreaching
"waiver" has at the least started down the road to being subject
to these California laws.
<br>
<br>
I am, of course, presuming (perhaps incorrectly) that this
agreement is made under, interpreted under, and enforced under the
laws of California - but the agreement sloppily forgets to mention
these rather important aspects.
<br>
<br>
The waiver, to my highly opinionated and jaded eyes, appears
drafted by someone who has not yet begun a career in law and who,
if they have started, is unlikely to finish well. (More likely
perhaps is that this is the work of some low level associate has
followed the practice of medieval Scholastic monks who, when
copying manuscripts, copied and merged text without actually
thinking about the meaning of what they were copying and merging -
the most famous example being the fable of Noah and the Ark where,
after ages of copying and merging, there are now divergent counts
of how many animals of each kind.)
<br>
<br>
There is an old, and very bad joke:
<br>
<br>
An airplane crashes directly onto the border line between
California and Nevada. Where are the survivors buried?
<br>
<br>
The joke is that one does not bury the survivors who, presumably,
are quite alive.
<br>
<br>
Well, ICANN's "waiver" makes promises on behalf of parties who do
not yet exist, like heirs and assigns. There are much better ways
to draft an agreement to limit the propagation of obligations and
duties to third parties. I was also amused by the sloppy drafting
that left "personal representatives" and "executors" dangling in a
limbo of ambiguity between two inconsistent sentences in the
"waiver".
<br>
<br>
And, of course, whenever an agreement uses words like "forever" my
mind says "remember the rule against perpetuities" - but that's
something so arcane that probably nobody understands what it
means.
<br>
<br>
I do hope ICANN was not billed by its law firm for the drafting of
this thing. And I find it sad that, ICANN, an organization whose
legal purpose is "to lessen the burdens of government" and that
obtains its legal existence as a "public benefit" corporation,
feels that it must protect itself by the Procrustean technique of
chopping the rights off of those who wish to attend its open and
public meetings.
<br>
<br>
--karl--
<br>
<br>
<br>
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