Discuss mailing list

[mike <mike AT pikeaero.com>]

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On 11/11/2012 05:08 PM, Peter Green wrote:
> 
> 
>> Existing T1 sysops could have somebody funding them currently,
>> and the rest of us are oblivious to that
> 
> Anyone know of this if it is happening? It'd be interesting to see
> how and if the model works.
> 
>> However, when the OpenNIC collective begins actively promoting 
>> that model, then the OpenNIC collective becomes exposed to all
>> of the potential liabilities associated with accepting people's
>> money in exchange for goods and services.
> 
> Why do you think that the case?

It's the way law and courts work. If it can be argued that the OpenNIC
collective is responsible for providing a remedy to resolve some
liability derived from the exchange of money for good and services by
any one or more of the members of the collective, then everybody in
the collective can become liable. It's just the way it works with this
kind of association in most jurisdictions in most countries as far as
I am aware.

If OpenNIC is actively promoting the model whereby it's 'members' are
accepting payment in direct exchange for good and services related to
the OpenNIC service, it would be a pretty simple argument to connect
any liability on the part of one of those individuals to the entire
collective.

I don't have the time or motivation to go and look for all the
appropriate laws and bi-laws for all the various jurisdictions, but
wikipedia seems to sum it up nicely here under "voluntary association":

"In most countries, an unincorporated association does not have
separate legal personality, and few members of the association usually
enjoy limited liability.[2] However, in some countries they are
treated as having separate legal personality for tax purposes.[3]
However, because of their lack of legal personality, legacies to
unincorporated associations are sometimes subject to general common
law prohibitions against purpose trusts."

> As I see it OpenNIC in it self never need change. It would just
> point people in the right direction for getting the job done if
> they can't do it them selves. Then these people add to the momentum
> to get OpenNIC T.L.D.s out there.
> 

I agree with the motivation for this, I'm just suggesting how it might
be arranged such that I don't have to risk suffering any liability on
the account of the financial transactions of someone else in the
collective.

I think we're basically saying the same thing, I am just suggesting
that we might avoid promoting it under the banner of OpenNIC, and
create some new banner, and just point people to that. It would be a
different entity from a liability perspective, potentially structured
differently than OpenNIC because of the fact that it's members are
accepting money for goods and services, perhaps it would be an LLC
corporation or some such.

Accepting money from corporate clients under contract to your own
person in exchange for goods and services is never a good idea because
you can then be held personally liable for any damages, where if you
are operating under a corp or llc, then the corp or llc is liable,
they can still try to come after you personally but they will have a
much harder time with that.

I am currently fighting a $3,000,000 CAD law suit against my
corporation. It will get thrown out because it's all based in fraud
and lies, but non the less, I have to pay lawyers (about $15K so far)
to help me argue it and eventually win a dismissal. On the chance that
I would loose, my corporation declares bankruptcy, sells all it's
assets, but I keep my house and everything inside. If I would have
done that deal  that went bad under my personal name, and I where to
loose in the court, I would be on the street living in a cardboard box.

So this is what I am trying to avoid, the situation where somebody
else in the collective does a deal that goes bad, and then I become
personally liable because of my association in the collective.

> It seems to me that for as long as OpenNIC only aims at the
> techies, then the rest of the world will pass us by.
> 

I could not agree more.

>> May I suggest the idea of perhaps forming a separate 'Guild of 
>> Alternative DNS Operators' or some such (does not even have to be
>>  OpenNIC centric), who then could be free to peddle their
>> services outside of any direct relationship to the other member
>> of the OpenNIC collective?. In this way, then, the OpenNIC
>> webmasters could potentially provide a link to the Guild's
>> website, and there you go, association at 'arm's length'.
> 
> I'm not sure about a guild, whatever that may mean in practice?
> But certainly OpenNIC would need to, in some way, over see what was
> going on and make sure things stayed professional and kept to the
> principles of the organization.
> 

OpenNIC would just have to keep doing what it does, and treat the
proposed TLDs no differently than if they are coming from a non-funded
source. OpenNIC should be able to enforce it's own policies through
the usual measures, if somebody is not cutting the mustard, they get
kicked, and so forth.

That is exactly where the liability issue could come into play as a
practical example, let's say I paid you some of my hard earned cash to
operate a TLD for me, and then you went off to school, got hit by a
bus, or whatever, and could not spend the required amount of time
looking after the TLD, and OpenNIC decides to terminate it.

In the model where OpenNIC was directly responsible for connecting me
to one of it's own members to provide me with a service in exchange
for my hard earned cash, then from my point of view, you are operating
as a representative of OpenNIC. Since you failed to uphold our
contract, I am going to hold OpenNIC liable to provide a satisfactory
remedy. In a court, it would be trivial to make that association stick
under those circumstances.

What I am proposing is to create a separate entity that is oriented
toward providing services in exchange for money. It would be the
guild's responsibility for assuring it's particular level of service
and providing backup to operators who get hit by busses and so forth.
And OpenNIC responsibility for providing it's level of service would
remain as it currently is.

> Even with the range of T.L.D.s available at present, it feels to
> me (and I may be wrong) that OpenNIC is a group of sysadmins of
> which a few run websites within the OpenNIC name space. How many of
> the main stream users own and run websites here?

I do http://www.8bit.geek

> 
> When I did a call out for a list of active websites a few months
> back I got only a few replies, or at least actual live websites and
> at least one of those died with weeks of launch.
> 
> I don't see much actual content within OpenNIC, I just see an 
> alternative D.N.S. resolver ecosystem, not an alternative/addition
> to the Wibbly Wobbly Web...
> 

I see your point completely, and I'm with you %100 on that.

> Peter
> 

- -- 
Regards,

Mike Sharkey,CEO
Pike Aerospace Research Corp. (Pike Aero)
420 Cross Street
Sudbury, Ontario
Canada    P3E-3W1

P:1+(705)586-2255
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