[client com] Fwd: [CWG-Stewardship] IANA IPR Community Agreement and License Agreement drafts

Tue Aug 2 21:48:37 UTC 2016

I don't believe that Christopher Wilkinson has posting rights to this
list.  Therefore, I am forwarding the email below.

Greg

---------- Forwarded message ----------
From: Christopher Wilkinson <lists at christopherwilkinson.eu>
Date: Tue, Aug 2, 2016 at 3:18 PM
Subject: Re: [CWG-Stewardship] [client com] IANA IPR Community Agreement
and License Agreement drafts
To: "cwg-stewardship at icann.org IANA" <cwg-stewardship at icann.org>
Cc: Client Committee <cwg-client at icann.org>, contreraslegal at att.net, JOSHUA
HOFHEIMER <jhofheimer at sidley.com>

Good evening

   -
   - *Reference:  Proposed ICANN/PTI-IETF Trust License Agreement (several
   drafts)*
   -
   - I have a few comments regarding these texts. Since none of them are
   conclusive I reserve my definitive comments to the necessary public
   consultation on the proposed final agreement, particularly as I am not
   party to the on-going negotiations. Indeed it is absolutely essential that
   this License Agreement goes out for public comment to - at least - the full
   CWG List. The license agreement will regulate several critical parameters
   regarding notably the terms and conditions of the reassignment of IANA IPR
   to eventual successor entity to ICANN/PTI and the registration of non-IETF
   protocols.
   -
   - 1. In general I find that the draft agreement is not balanced. The PTI
   party benefits from extensive privileges, particularly insofar as matters
   are to be determined at the parties' own expense. In that context may I
   recall that the IETF Trust has an annual budget of about $50k, of which
   $25k is for legal expenses. Whereas PTI - as we have seen recently - can
   spend millions of dollars on legal fees. Specifically, whenever it is said
   that each party may be represented by counsel, one must assume that PTI
   will be represented, as we have recently seen, whatever the cost, and the
   IETF Trust will be represented at best by itself, without the financial
   support of ICANN which would have been available in the past to defend the
   interests of IANA.

In general, this license agreement should say nothing about succession,
separability or separation of the IANA functions.  All that, should the
need ever arise is matter for the ICANN Empowered Community as a whole and
should not be preempted by a technical license agreement between ICANN/PTI
and the IETF Trust, the former having no standing to regulate its own
future and the latter - as such - having very little standing in the ICANN
community, except through the participation of its members in their
respective capacities.

My comments below, follow the order of the document and not necessarily the
relative importance of the issues.

2. Article 1.1: The exclusive reference to the American Arbitration
Association (AAA) is not appropriate in this context. The scope of the
agreement is potentially 'global' and 'worldwide'.
(a) there are several other arbitration fora which have a broader global
reach and (b) at the very least, ICANN/PTI and IETF Trust should conduct an
open call for proposals to fulfil this function.

3. Article 1.2: The reference that "the Internet Society … is not an
Affiliate of the Licensor." is perplexing to say the least:
(a) I recall that IETF and ISOC created the Trust; (b) several of its
recent Trustees are present or past ISOC Board members, (c ) the IETF Trust
certainly makes an annual report to the ISOC Board:
http://www.internetsociety.org/search/gss/ietf%20trust

I suggest that it would be more transparent to state what IS the
relationship between ISOC and the Trust, rather than to state what it is
NOT.

4. Articles 2.1 and 3.1: For reasons that I have set out on several
previous occasions, I do not accept the language that "… three independent
and separately terminable licenses are granted thereunder with respect to
the three categories of IANA services …".

Indeed, eventual separation of the IANA functions would give rise to
unmanageable oversight requirements on the part of the rest of the Internet
community, including the GAC.

5. Article 4.1: Goodwill: The goodwill that accrues to IANA relates to its
past and present operators - in some cases at a personal level. The idea
that such goodwill can be assigned to the IETF Trust by a simple legal act
appears to be rather fanciful. Indeed I rather doubt that the IETF Trust
would be volunteering for that role!

6. Article 4.3: Policing and enforcement: So, the right of enforcement,
including employment of counsel, devolves to the IETF Trust, with a legal
budget of $25k!
  Colourful, if not absurd. Insofar as such enforcement has been required
in the recent past, the costs would have devolved to ICANN.

7. Article 6.1: Term: the proposed amendment reinforces the supposition
that the authors envisage separation of the IANA functions. No appropriate
in this context.

8. Article 6.6 c: I do not agree to the amendment "… or to its successor
licensee(s) for the terminated services…"
This amendment could (a) by-pass or short-cut the established procedures
within the Empowered Community, and (b) presupposes that there would be
plural successor licensees. Not appropriate in this context.

9. Exhibit A: IANA Protocol Parameter Service: I do not agree to the
proposed amendment "(ii) registering protocol parameters of interest to the
Internet community, upon agreement with other parties, provided such
protocol parameters do to conflict with clauses (i) and (iii)". (i.e.
specified in RFCs and/or made available to the public - but not necessarily
free for use.)

This amendment would open the door to the registration of proprietary
protocol parameters which would cumulatively, over time, prejudice the Open
Internet, increase costs to the final users and undermine the conditions of
fair competition among Internet based services.

* * *
I trust that these comments shall reach the negotiators concerned. May I
re-iterate, that the final proposal must be subject to open public
consolation of all interested parties.

Regards

Christopher Wilkinson

On 30 Jul 2016, at 22:43, "Hofheimer, Joshua T." <jhofheimer at sidley.com>
wrote:

Jonathan, Lise and the Client Committee,

See attached.  Sidley will prepare a table for your review that highlights
the key departures from our proposed drafts.

Best regards,
Josh

*Joshua Hofheimer*
*Sidley Austin LLP*
*jhofheimer at sidley.com <jhofheimer at sidley.com>*
*(213) 896-6061 <%28213%29%20896-6061> (LA direct)*
*(650) 565-7561 <%28650%29%20565-7561> (Palo Alto direct)*
*(323) 708-2405 <%28323%29%20708-2405> (cell)*

*From:* iana-ipr-bounces at nro.net [mailto:iana-ipr-bounces at nro.net] *On
Behalf Of *Jorge Contreras
*Sent:* Saturday, July 30, 2016 10:03 AM
*To:* iana-ipr at nro.net
*Subject:* [Iana-ipr] IANA IPR Community Agreement and License Agreement
drafts

Dear colleagues,

We have attached for your review clean and redlined versions of the
Community Agreement and License Agreement, which have been marked against
the versions distributed on July 5.  We have inserted numerous
comments in the marked version using the MS Word comment feature. These
comments are intended to address specific text or suggestions made by CWG,
RIR or IETF during the last round.

In these candidate agreements, we have accepted a number of suggestions
both the operational communities. We know that everyone is anxious to get
these done, and many of the changes seem to us to be reasonable and in
keeping with the Trust’s responsibilities.

What we have not accepted, and what we do not believe we can accept, is any
arrangement in which the Trust is subject to "approvals" by the CCG.  We
remain convinced that such acceptance would be contrary to
the Trust's anticipated fiduciary responsibility as the holder of the
Marks, and the Trustees cannot responsibly expose the Trust to such a
threat.  We believe that any independent trust would face this problem.

In addition, we do not think that, given the terms of our Trust Agreement,
the Trust is capable of acting as a "steward" for other operational
communities.  The existing Trust Agreement also does not permit the Trust
to transfer away any asset once it is owned by the Trust, so we cannot
accept any term that anticipates such a transfer.

We realize that some people would prefer to amend some terms of the IETF
Trust Agreement.  That may be possible in the future in order to
accommodate some of the above worries.  But all changes have to go through
the IETF consensus process, and there simply isn't time to do that this
year.  Hence our agreement must work with the Trust as it currently exists.

We hope that you will agree that we are making substantive and collegial
process here, and we hope you understand that the existing terms of the
Trust Agreement are a hard limit on what we may possibly
do.  We look forward to additional comments and to a fruitful discussion on
our next call.

Jorge L. Contreras
Contreras Legal Strategy LLC
1711 Massachusetts Ave. NW, No. 710
Washington, DC 20036
contreraslegal at att.net

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<License-Agreement IANA IPR 2016-07-30 clean.doc><License-Agreement IANA
IPR 2016-07-30 marked vs 07-05.pdf><Community-Agreement-2016-07-30
clean.doc><Community-Agreement-2016-07-30 marked vs 07-05.pdf>
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