[CWG-Stewardship] Update on IANA IPR

[Greg Shatan]

Milton,

On the quality control point, it's not possible to limit (or essentially,
eliminate) quality control to the extent you state, but it is possible to
constrain it significantly. In this case I would suggest we explore a
combination of (a) minimizing the quality control obligations as much as
legally possible, (b) involving the OCs in quality control (e.g., by
delegating certain quality control responsibilities to the OCs), and (c)
constraining the licensor's ability to call a default and seek to terminate
the license.  The quality control "issue" would have been an issue with
ICANN licensing the mark to third parties post-separation, as well.  It may
also be an issue now (albeit to a lesser extent) in the proposed license
between ICANN and PTI.

On your last point, after further thought, I tend to agree.  "Doing
something to" the IETF Trust is probably an overly aggressive way to phrase
things.  I've been thinking of a range of options, some of which would
involve little or no change to the IETF Trust itself (and some of which do,
or don't involve the IETF Trust at all).  But I think it makes sense to
understand the range of options and then we can make decisions about these
options.  More to follow.

Greg

On Tue, Aug 18, 2015 at 12:44 PM, Mueller, Milton L <
milton.mueller at pubpolicy.gatech.edu> wrote:

>
>
>
>
> *From:* Greg Shatan [mailto:gregshatanipc at gmail.com]
>
> Andrew Sullivan a little while ago.  Many good and important things may
> reside in IETF RFCs, but the "identity of the IANA" is not one of them.
> That is not consistent with what trademarks stand for, or what trademark
> "source" means.  A brand identity is associated with the entity that is
> responsible for carrying out a service
>
>
>
> MM: This is where you go off the track, in my opinion. “The IANA” as the
> IETF defines it is not a “service.” It is an authoritative role regarding
> protocol compatibility that is defined in the RFC I and others referenced.
> To quote:
>
>
>
> To insure that such quantities have consistent values and interpretations
> in different implementations, their assignment must be administered by a
> central authority. For IETF protocols, that role is provided by the
> Internet Assigned Numbers Authority (IANA) (RFC 2434)
>
>
>
> The IETF is the source of that role and of the protocols that require
> registries. The IANA Functions operator (IFO) is a service. It is
> semantically easy to confuse “The IANA’ with “The IANA Functions Provider”
> and people have often unwittingly used them interchangeably, but they are
> distinct and the distinction is pretty important in the current context.
>
>
>
> For a copyright owner, it would make good commercial sense, since a bad
> cover version or movie would have a negative effect on value, but there's
> no legal requirement.  For a patent owner, there's no overriding reason to
> do so.  In contrast, quality control is the bedrock of trademark
> licensing.  Without adequate quality control (and policing and enforcement)
> in contract and in fact, the trademark asset itself will become diluted and
> ultimately abandoned.  So, any trademark owner, including the IETF Trust,
> must impose quality control standards over its licensees.  It cannot be a
> passive
>
> licensee.
>
>
>
> MM:  I look forward to the email you propose to write below. The key
> question is: is it possible, or is it not, for the sum and substance of the
> IETF Trust’s “quality control” to be *we will license the TM to whoever
> each operational community designates to be their IFO*? If it is not
> possible for IETF Trust to do this, how is it possible for ICANN (the
> incumbent IFO) to do it? And  if it is possible, why not let’s figure out
> the best way to do it.
>
>
>
> By the way that constraint on “quality control” – and only that – is what
> I mean by “making the IETF Trust accountable.” Accountability does not mean
> complex new structures that allow anyone in the world claiming to be an
> internet user to select IETF officers, or to review and approve IETF
> standards, nor does it mean new corporatist representational structures
> arbitrarily apportioning slots among different regions, operational
> communities, etc. etc.
>
>
>
> Given the ICANN Board's recent announcement, there's really no reason to
> continue discussing ICANN retaining the marks
>
>
>
> MM: Agreed. So, let’s not.
>
>
>
> What makes sense at this point is to discuss what would need to be done to
> the IETF Trust
>
>
>
> MM: I really don’t like that phrasing. ;-0  I don’t think we need to “do
> something to” the IETF Trust per se; we need to condition the transfer of
> the marks to it in a way that ensures that it respects the choices of the
> OCs as to who they want their IFO to be.
>
>
>
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