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- Oct 8, 2002
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It is very important for anyone concerned about the ICANN/Verisign screwjob settlement to understand the significance of what ICANN is claiming as a "victory" over domain registrars and registrants.
First, ponder the last few words of that sentence in relation to what ICANN should be.
Now, crack open a cold one and bear with me for a minute.
There are lots of things you can ask a court to do during the course of a lawsuit. Lawsuits take time, and sometimes the threat of imminent harm, or an ongoing harm, is such that you can't wait for a suit to run its course in order to obain a just result. In those circumstances, one of the things you can ask a court to to is to issue what is called a temporary restraining order, or TRO.
A TRO is a form of "extraordinary relief" which a court may issue at the very beginning of a lawsuit in order to preserve the status quo or to stop something that can be readily shown to be harmful to the parties. Later on, depending on how things play out in the suit, a court may withdraw or modify the TRO.
In order to issue a TRO, you have to show the court that there is a severe harm at work, and that there is a substantial likelihood you will win after all the facts are considered at trial. A hearing on a TRO is just a very quick presentation of the essential facts and law relevant to the dispute. If a court decides that harm is not imminent, or that the plaintiff's position does not have strong and apparent merit, then the court will refuse to issue the requested TRO.
So, what the world knew until this week was that ICANN and Verisign had worked out a settlement agreement, and that ICANN may very well have been planning to approve the settlement upon the conclusion of festivities here in Vancouver (where I am this week).
Now, let's say that I was threatening to demolish your house, and you went to court to obtain a TRO to prevent me from demolishing your house. I show up and court and say, "Judge, I'm not going to to demolish his house, and I promise I am not going to demolish his house before we can get this thing resolved." The judge is not going to grant a TRO, because on those facts there is no need for the judge to issue one. You have gotten, from me, a pledge that amounts to what you wanted in the first place. The "imminent harm" does not exist.
That is what ICANN did here. They represented to the court that they are NOT going to approve the proposed settlement any time soon. That is how they "won" on this prelimary ruling.
This is not a "win" for ICANN. In truth, ICANN should not be fighting domain registrars and domain registrants in order to "win" against them.
So long as ICANN continues to "win" this way, I will be happy to keep on losing.
First, ponder the last few words of that sentence in relation to what ICANN should be.
Now, crack open a cold one and bear with me for a minute.
There are lots of things you can ask a court to do during the course of a lawsuit. Lawsuits take time, and sometimes the threat of imminent harm, or an ongoing harm, is such that you can't wait for a suit to run its course in order to obain a just result. In those circumstances, one of the things you can ask a court to to is to issue what is called a temporary restraining order, or TRO.
A TRO is a form of "extraordinary relief" which a court may issue at the very beginning of a lawsuit in order to preserve the status quo or to stop something that can be readily shown to be harmful to the parties. Later on, depending on how things play out in the suit, a court may withdraw or modify the TRO.
In order to issue a TRO, you have to show the court that there is a severe harm at work, and that there is a substantial likelihood you will win after all the facts are considered at trial. A hearing on a TRO is just a very quick presentation of the essential facts and law relevant to the dispute. If a court decides that harm is not imminent, or that the plaintiff's position does not have strong and apparent merit, then the court will refuse to issue the requested TRO.
So, what the world knew until this week was that ICANN and Verisign had worked out a settlement agreement, and that ICANN may very well have been planning to approve the settlement upon the conclusion of festivities here in Vancouver (where I am this week).
Now, let's say that I was threatening to demolish your house, and you went to court to obtain a TRO to prevent me from demolishing your house. I show up and court and say, "Judge, I'm not going to to demolish his house, and I promise I am not going to demolish his house before we can get this thing resolved." The judge is not going to grant a TRO, because on those facts there is no need for the judge to issue one. You have gotten, from me, a pledge that amounts to what you wanted in the first place. The "imminent harm" does not exist.
That is what ICANN did here. They represented to the court that they are NOT going to approve the proposed settlement any time soon. That is how they "won" on this prelimary ruling.
This is not a "win" for ICANN. In truth, ICANN should not be fighting domain registrars and domain registrants in order to "win" against them.
So long as ICANN continues to "win" this way, I will be happy to keep on losing.
