[client com] Preliminary Answers to Questions on IETF Trust, etc.

Jonathan Robinson jrobinson at afilias.info
Tue Jul 26 12:55:51 UTC 2016

Thank-you Josh,


My expectation is that we will walk through the table and to the extent that the answers provided are complete and satisfactory, not dwell on them. 


However, to the extent that they provide some cause for concern or raises issues that ideally need to be dealt with, we should discuss them.


Talk with you in a few minutes.




From: Hofheimer, Joshua T. [mailto:jhofheimer at sidley.com] 
Sent: 26 July 2016 02:17
To: Greg Shatan <gregshatanipc at gmail.com>; Client <cwg-client at icann.org>; Flanagan, Sharon <sflanagan at sidley.com>; Gregory, Holly <holly.gregory at sidley.com>; Resnick, Yael <yresnick at sidley.com>; Grapsas, Rebecca <rebecca.grapsas at sidley.com>
Subject: Re: [client com] Preliminary Answers to Questions on IETF Trust, etc.


Attached you will find a copy of the IETF Topics for Discussion with a column added to the right for Andrew Sullivan’s responses below.  We added the definitions for the two defined terms, as well.  


Best regards,



Joshua Hofheimer

Sidley Austin LLP

jhofheimer at sidley.com <mailto:jhofheimer at sidley.com> 

(213) 896-6061 (LA direct)

(650) 565-7561 (Palo Alto direct)

(323) 708-2405 (cell)


From: Greg Shatan [mailto:gregshatanipc at gmail.com] 
Sent: Monday, July 25, 2016 3:29 PM
To: Client; Hofheimer, Joshua T.; Flanagan, Sharon; Gregory, Holly; Resnick, Yael; Grapsas, Rebecca
Subject: Preliminary Answers to Questions on IETF Trust, etc.


Andrew Sullivan provided some preliminary answers to the questions posted. See email below.  I wrote back, just to clarify 2 of the acronyms that Andrew used but did not define or spell out, so you'll need to look below that for the answer email.  it might be useful for someone to create a single document with each question followed by the answer (or a chart with the questions in the first column and the answers in the second).



---------- Forwarded message ----------
From: Greg Shatan <gregshatanipc at gmail.com <mailto:gregshatanipc at gmail.com> >
Date: Mon, Jul 25, 2016 at 6:25 PM
Subject: Re: [Iana-ipr] Proposed agenda (was Re: Call next week for IANA IPR)
To: Andrew Sullivan <ajs at anvilwalrusden.com <mailto:ajs at anvilwalrusden.com> >
Cc: iana-ipr at nro.net <mailto:iana-ipr at nro.net> 



Thanks, this is very helpful.  Just to clarify a couple of acronyms for the perplexed, as they read this:


IAOC.  I know that to be the IETF Administrative Oversight Committee, but I'm just confirming that for the sake of other readers.  I see from the IETF website that the IAOC "is responsible for the fiscal and administrative support of the IETF standards process, is housed within the Internet Society, and is a part of IASA."  I see from RFC 4071 that IASA is the "IETF Administrative Support Activity." RFC 4071 describes IASA as follows: "The IETF Administrative Support Activity (IASA) provides the administrative structure required to support the IETF standards process and to support the IETF's technical activities."   Both the IAD and IAOC are part of IASA. https://www.ietf.org/rfc/rfc4071.txt <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.ietf.org_rfc_rfc4071.txt&d=CwMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=PyftdYkqjEDMIx5o_kyQ1bCTTkOV655ea67oiCGUI9M&m=odliBQpk28IYBdD-ZBSKikJj0J5l6QQWdcOjQ4miZBE&s=h-SJDUbPWA8E1PLL4UCPuLbhidUUi1ezpvT4A1aGqts&e=> 


IAB.  I know that to be the Internet Architecture Board.  The IAB website describes the IAB as follows: "The Internet Architecture Board provides long-range technical direction for Internet development, ensuring the Internet continues to grow and evolve as a platform for global communication and innovation."  The IAB appears to be both a committee of the IETF and performs an oversight function as well (but here I'm getting into deeper water, so I'll ask for clarification of how IAB fits.  Since you are Chair of the IAB that should be relatively easy....). 


Is this correct (other than the part where I ask for further clarification of how IAB fits)?








On Mon, Jul 25, 2016 at 5:21 PM, Andrew Sullivan <ajs at anvilwalrusden.com <mailto:ajs at anvilwalrusden.com> > wrote:

I should have noted more carefully: the "to get started" means that
these are not definitive and haven't been reviewed by anyone else.
This is based on what I know, and is subject to correction (especially
by counsel).  IANAL, YMMV, &c.


On Mon, Jul 25, 2016 at 05:19:34PM -0400, Andrew Sullivan wrote:
> Hi,
> Here are some answers to the questions, to get started.
> I.1.a.  The IETF Trust is made up of Trustees, all of whom are also
> IAOC members (that's how you become a Trustee).  There are several
> ways that IAOC members get appointed.
> The IETF Adminsitrative Director is a non-voting member the IAOC (as
> IAD).  The IAD is the only person who is employed full time with
> direct responsibility to the IETF; the IAD is evaluated by the IAOC,
> though nomimally is an employee of ISOC.
> The IETF Chair is a member of the IAOC _ex officio_ IETF Chair.
> The IAB Chair is a member of the IAOC _ex officio_ IAB Chair.
> The President and CEO of ISOC is a member of the IAOC _ex officio_
> ISOC President.
> There is a member of the IAOC that is appointed by the Internet
> Engineering Steering Group (the collection of all of the Area
> Directors of the IETF).
> There is another member of the IAOC that is appointed by the IAB.
> There is a member of the IAOC that is appointed by the ISOC Board of
> Trustees.
> The other IAOC members (currently 2 more) are appointed by the IETF NomCom.
> The Trust exists to hold certain intellectual property related to the
> Internet.  Originally it was created more or less specifically to hold
> the IPR for things that are of relevance to the IETF, so that's why we
> believed it was ok to hold this IPR too on behalf of the wider
> Internet community.
> I.1.b.  The Trust is to maintain and defend the IPR of the IETF.  The
> IETF appoints 6 of the IAOC members (and therefore 6 of the Trustees)
> either directly or indirectly.
> I.1.c.  ISOC is the organizational home of the IETF (because the IETF
> is unincorporated, actions that require an IETF contractual
> relationship are handled by ISOC).  Effectively, ISOC also works as a
> kind of bank account -- it provides the handling of most of our money,
> and currently provides approximately 1/3 of the IETF annual operating
> budget (the other 2/3 are related to meetings.  ISOC handles that
> money, but in a pass-through manner).  Apart from the ISOC members
> (and therefore Trustees) that ISOC appoints, and some services that
> ISOC provides to the Trust (like financial statements for expenses
> relating to the Trust), there is no formal relationship between ISOC
> and the Trust.
> I
> 1.d.  I'm not sure I understand this question except as was answered
> in (c).  The IAB provides advice to ISOC BoT, and since the IAB is a
> committee of the IETF I suppose that's another responsibility.
> 2.  The community.  The Trust reports on its activities regularly, and
> most of the Trust membership could be removed through appropriate
> recall efforts were that to be necessary.
> 3.  See (1).  This depends in part on the appointing body.  Most serve
> in renewable terms of 2 years.  The IAB chair is an annual
> appointment, so that appointment could normally change every year.  In
> practice it has never happened that the IAB chair changed after only a
> year.
> 4.  Yes.  Every Trustee, when they join, is required to do this.
> 5.  Yes.  Legal issues are documented beneath https://iaoc.ietf.org/subpoenas.html <https://urldefense.proofpoint.com/v2/url?u=https-3A__iaoc.ietf.org_subpoenas.html&d=CwMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=PyftdYkqjEDMIx5o_kyQ1bCTTkOV655ea67oiCGUI9M&m=odliBQpk28IYBdD-ZBSKikJj0J5l6QQWdcOjQ4miZBE&s=IS9m2tv7lcz43W6n19aSYoFDfFt9e55NJpBX9eeo_-c&e=> .
> 6.a.  Either once or twice a month, depending on the quantity of business.
> 6.b. Mostly by teleconference, but also in person at IETF meetings and
> at one annual retreat.
> 6.c.  There is an agenda, but it is not generally circulated to date.
> Community members can and do raise issues with the Trust which then
> get treated at a future meeting.
> 6.d.  No.  The Trust generally deals with legal matters, and to
> preserve privilege the meetings are not open.
> 6.e.  Minutes are published at http://trustee.ietf.org/minutes.html <https://urldefense.proofpoint.com/v2/url?u=http-3A__trustee.ietf.org_minutes.html&d=CwMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=PyftdYkqjEDMIx5o_kyQ1bCTTkOV655ea67oiCGUI9M&m=odliBQpk28IYBdD-ZBSKikJj0J5l6QQWdcOjQ4miZBE&s=wdCHbXGd6wU_VGenbNPMa3dy-0_cEyovjl3Om08rSk4&e=> .
> II
> 1.  The IETF has requested no compensation for this.
> 2.a. (i and ii) The IETF Trust pays this out of its normal operating
> expenses.  Historically, the accounting was handled a little
> informally, with expenses not always carefully distinguished between
> IETF and Trust expenses.  In anticipation of the new responsibility
> and the additional transparency likely to be desirable, the Trust has
> begun accounting its finances separately (this is recently
> instututed).
> 2.b. (i and ii) The IETF's budget is tiny.  We're prepared to look
> after these expenses, but if the community decided that the Licensee
> should contribute some money to offset the expenses we're pretty
> unlikely to refuse it.  We are not planning for it, however.
> 2.c. and d. (i and ii) I'd prefer to defer to Jorge on these.
> 3.  My understanding -- but we should clarify this with counsel -- is
> that the Trust does in fact have the authority to act unilaterally, in
> keeping with its duties as the owner of the Marks or domains whenever
> it apprehends that it must act in the interests of the maintenance of
> the Mark or domain name in question.  Our intention, however, in the
> Community Agreement was to undertake all possible provision for acting
> in keeping with and subject to the relevant community's (or
> communities') wishes, in so far as trademark and domain name law and
> jurisprudence permit that.
> 4.  My understanding -- and again, this needs to be clarified with
> counsel -- is that a Mark holder _must_ retain that independent right,
> or it's not really the holder of the Mark.
> 5.  I defer to Jorge on this.
> 6.a.  I do not believe this is possible, because I think it would
> require modifications to the Trust Agreement that cannot be undertaken
> as a practical matter.  If this is a requirement, then the IETF Trust
> can't receive the IPR, and we'll need to find another way to satisfy
> the requirements of the transition proposal.  I confess I find it
> pretty hard to see how that is going to happen in time for the
> deadline.
> 6.b.  I want to consult with Jorge first, but in principle I'm not
> opposed to this so long as it is possible to protect the rest of the
> Trust's activities and so long as this does not involve the original
> settlors.  If it does, I must say, then I do not believe it is possible.
> 7.  Good question.  I note that if this happens, we have other
> problems (like for instance that the status of the body that produces
> all the protocols on the Internet is apparently "in trouble"), so it
> seems like a low-probability situation in the horizon of the
> transition.  I wonder whether something in the community agreements
> involving post-transition negotiation over this issue would be enough
> to put this issue to rest before September, because this appears to
> create thorny questions about the supervision of the post-dissolution
> body that are quite similar to the same questions we'd need to answer
> to set up an independent trust now.
> One final note: I think it bears repeating that the Trust did not go
> looking for this job, but has offered to do it as a service to the
> community.  I think it's important to ask how valuable the IPR we're
> defening is compared to the value of the transition itself.
> A
> On Mon, Jul 25, 2016 at 04:04:12PM -0400, Greg Shatan wrote:
> > All,
> >
> > Here are the questions/discussion items for the IETF Trust to be covered in
> > tomorrow's call, in Word and PDF form (somewhat confusingly, the PDF title
> > begins with "Microsoft Word"...).
> >
> > Based on this email string, I would suggest the following agenda:
> >
> > 1.      Q & A / Discussion on the IETF Trust
> >
> > 2.      Mechanics - Process & Timeline
> >
> > a. Status of review/revision of draft agreements
> >
> > b. Timing
> >
> > c. Next steps
> >
> > 3.      AOB
> >
> > I look forward to the call.
> >
> > Best regards,
> >
> > Greg
> >
> > On Mon, Jul 25, 2016 at 3:50 PM, Greg Shatan <gregshatanipc at gmail.com <mailto:gregshatanipc at gmail.com> >
> > wrote:
> >
> > > I expect to have it out in 15 minutes.
> > >
> > > Greg
> > >
> > > On Mon, Jul 25, 2016 at 3:38 PM, Andrew Sullivan <ajs at anvilwalrusden.com <mailto:ajs at anvilwalrusden.com> >
> > > wrote:
> > >
> > >> On Mon, Jul 25, 2016 at 03:10:02PM -0400, Greg Shatan wrote:
> > >> > I think you're missing the original reason that this meeting was
> > >> requested
> > >> > by CWG, which was to have a call between "IETF Trustees and Names reps"
> > >> to
> > >> > go over a number of questions/points of information that the Names reps
> > >> and
> > >> > counsel would like to clarify with representatives of the IETF Trustees.
> > >>
> > >> So,
> > >>
> > >> 0)  Issues raised by CWG?
> > >>
> > >> The difficulty, of course, is that we don't actually _have_ that list,
> > >> so it'll be hard to produce answers.  Any clue how much later today?
> > >> I had some tentative plans for end-of-workday that I could just insert
> > >> now so I could review those issues later, but if "later" is "20:00
> > >> EDT" it'll probably be too late -- my body is still convinced I'm in
> > >> Germany.
> > >>
> > >> A
> > >>
> > >> --
> > >> Andrew Sullivan
> > >> ajs at anvilwalrusden.com <mailto:ajs at anvilwalrusden.com> 
> > >>
> > >> _______________________________________________
> > >> Iana-ipr mailing list
> > >> Iana-ipr at nro.net <mailto:Iana-ipr at nro.net> 
> > >> https://www.nro.net/mailman/listinfo/iana-ipr <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.nro.net_mailman_listinfo_iana-2Dipr&d=CwMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=PyftdYkqjEDMIx5o_kyQ1bCTTkOV655ea67oiCGUI9M&m=odliBQpk28IYBdD-ZBSKikJj0J5l6QQWdcOjQ4miZBE&s=Wc1p-vRbck9wTRdNlufPehBzmCeNTy5qo0JbzubD5G0&e=> 
> > >>
> > >
> > >
> > _______________________________________________
> > Iana-ipr mailing list
> > Iana-ipr at nro.net <mailto:Iana-ipr at nro.net> 
> > https://www.nro.net/mailman/listinfo/iana-ipr <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.nro.net_mailman_listinfo_iana-2Dipr&d=CwMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=PyftdYkqjEDMIx5o_kyQ1bCTTkOV655ea67oiCGUI9M&m=odliBQpk28IYBdD-ZBSKikJj0J5l6QQWdcOjQ4miZBE&s=Wc1p-vRbck9wTRdNlufPehBzmCeNTy5qo0JbzubD5G0&e=> 
> --
> Andrew Sullivan
> ajs at anvilwalrusden.com <mailto:ajs at anvilwalrusden.com> 
> _______________________________________________
> Iana-ipr mailing list
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Andrew Sullivan
ajs at anvilwalrusden.com <mailto:ajs at anvilwalrusden.com> 

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