[CWG-Stewardship] Update on IANA IPR

[Mueller, Milton L]

From: Greg Shatan [mailto:gregshatanipc at gmail.com]

MM: All three communities are based on registries grounded in IETF standards. There is no more appropriate place for the 3 communities’ IANA requirements to converge than at IETF.
​GS:  The fact that IETF sets standards that are then used by two operational communities does not in any way qualify the IETF or its Trust as a sole owner of an asset used to refer to services provided to all three communities by the provider of those services.​

MM: Incorrect. The identity of the IANA, as you have been informed several times now, resides in IETF RFCs. The “three communities” to which you refer are organized around registries that implement IETF standards. The “services” to which you refer are merely outsourced secretarial functions which keep those registries consistent. While each community gets to pick its clerical provider of those functions, the source and origin of the IANA is still the IETF.

MM: So since you want ICANN to hold the mark this means that you want ICANN to “become the INTERNET ASSIGNED NUMBERS AUTHORITY? Permanently…? No separability, no accountability.
​GS:  That completely mischaracterizes my position, or is at least way out of date. Just because you remain a committed advocate for the CRISP solution does not mean that I am your antithesis.  My position since Buenos Aires (if not slightly before) is that I have an open mind

MM: I see no evidence of this. I see a very firm commitment to ICANN retaining the IPR. See below.

but that we need to conduct our own analysis of the potential outcomes​.  If ICANN retains ownership of the IANA and INTERNET ASSIGNED NUMBERS AUTHORITY trademark, thee is no reason that it would be permanent, nor have I ever said so at any time.  If all 3 communities chose a new IFO, putting ICANN out of the "IANA business," it would be entirely appropriate for the new IFO, as the new IANA, to be assigned the trademarks as well.

This could all be taken care of in contracts and in the ICANN Bylaws, to assure that it would in fact take place.

MM: I have a bit of experience, 30 years to be exact, in telecommunications regulation and have observed efforts to use regulations, contracts, etc. to make an incumbent monopoly treat competitors in a nondiscriminatory fashion and allow customers to switch to new providers without throwing up obstacles. The method you describe never works. Never.  The incumbent has so much discretion, so much inertia on its side, and so much advance knowledge of the process. The only thing that has ever really worked cleanly is structural separation.  This isn’t about “permanent mistrust of ICANN” per se, it’s about knowing something about economics, regulation, switching costs, and basic economic incentives.

And you still have never explained why you are so mistrustful of an IETF Trust when it has zero incentives and zero benefits to be gained by messing with the trademarks. A person with an open mind wouldn’t use such a double standard.

​GS:  There's no distortion here. The services may be provided by PTI by permission of the names ​community, but PTI's ability to use IANA and INTERNET ASSIGNED NUMBERS AUTHORITY as its trademarks and trade names comes by permission (or more accurately, license) from the IETF Trust, if the IETF Trust becomes the brandowner.  This license, like any trademark license, must contain quality control provisions which put the IETF Trust in an oversight and control position over PTI.

MM: I think you are distorting this, partly based on your understanding of how commercially motivated firms administer trademarks, partly because you really are committed to ICANN retaining the marks. The IETF Trust would administer the marks not to impose its service standards on PTI but only to ensure that the marks are separate from the IFO and licensed to any IFO duly designated by each operational community. You can’t tell me that good TM lawyers can’t figure out a way to confine IETF Trust to that role.

And if you can’t, you will have a very hard time convincing people of your second point, which is that ICANN’s bylaws and contracts can be magically written to erase its conflict of interest in transferring the marks to a new operator.

You have consistently failed to escape this basic contradiction in your position. If you can make ICANN a nondiscriminatory holder of the marks who willingly licenses them to its competitors, or whoever the communities designate as their IFO, why can’t you do the same for IETF Trust? And doesn’t it make more sense for IETF, which has no conflict of interest, to be in that role than ICANN? And isn’t that why CRISP team proposed it to begin with?

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