[CWG-Stewardship] Further update on the IANA IPR

[Greg Shatan]

I disagree with the prior statement regarding the "burden of proof" as to
the IETF Trust as the future owner of the IANA trademarks and domain name
(that it will be the IETF Trust unless it clearly proves "impractical").

Before I go further, I have to ask -- is this a question we need to
consider now?

Jonathan has phrased the "minimum condition" consistent with the other
proposals as "openly accepting the transfer of the IANA IPR to an entity
independent of the IANA numbering services operator."  There is no mention
of *who* that entity might be.

Is our Chairs' phrasing consistent with the "existing specified
requirements (originating in the CRISP proposal)" as stated by the ICG?  Or
do "the existing specified requirements (originating in the CRISP
proposal)" also include a "requirement" that the IETF Trust be that entity?

We should not try to answer that question off the top of our heads.  We
should look back to the numbers proposal itself, which states:

"It is the *preference* of the Internet Number Community that the IANA
trademark and the IANA.ORG domain name be transferred to an entity
independent of the IANA Numbering Services Operator, in order to ensure
that these assets are used in a nondiscriminatory manner for the benefit of
the entire community.From the Internet Number Community’s perspective, the
IETF Trust would be *an acceptable candidate* for this role." [emphasis
added]

The numbers community has stated a "preference" that the trademarks and
domain names be transferred to an "entity," but they have expressed no
preference regarding which entity that might be.  They have stated that the
IETF Trust would be "an acceptable candidate for this role." "An
acceptable" entity is not a statement that it is "the preferred" entity or
even "the most acceptable" entity.  We should not, and the ICG should not,
read a preference into the numbers proposal where there is none.

We also should not gloss over the words "a candidate" -- the use of
"candidate" clearly implies that no decision has been made, even by the
numbers community.  The use of "candidate" also clearly implies at least
the possibility of other candidates, if not the expectation (hopefully,
there will not be 20 candidates, as there are now for the US presidential
election).  The use of "a candidate" rather than "the candidate" underlines
the neutral nature of this suggestion.

In sum, this tells us that the numbers community is putting forth the IETF
Trust put forth as a candidate.  It has not decided on that candidate, it
has not stated a preference for that candidate, and it appears to
contemplate the possibility of other candidates.

Based on the CRISP proposal itself, accepting the IETF Trust as this entity
is not a requirement of the CRISP proposal. While this seems clear on its
face, there have been statements by various parties that seem to indicate
that it is a requirement (or at least that some wish it were a
requirement).  It's also notable that what was stated as a "preference" in
the CRISP proposal has been hardened into a "requirement" by the ICG.
Unfortunately, I think all of this means thst we need to confirm this point
with the ICG and with the CRISP Team.

We should also confirm that the ICG and the CRISP Team do not believe there
is a stated "preference" for the IETF Trust.  Again, that seems clear on
its face, but there seems to be a sort of "requirements creep" taking place
here.  If that's the case, the field is open for other candidates, on an
equal footing with the IETF Trust, and the we can examine whether the IETF
Trust is an acceptable candidate to the CWG, without giving it any
preference (or "burden of proof" advantage).

The march of time may also be contributing to the sense that the IETF Trust
is a requirement, or at least a preference, of the ICG.  However, the
NTIA's recent announcement of the IANA Contract extension should indicate
that there will be ample time for implementation.

If the IETF Trust is not a "requirement" or a "preference" of the ICG (via
CRISP), we should be able to deal with the "entity" question during
implementation (either prior to "going live," or within 120 days after, if
the ICANN Board's suggestion is acceptable).  If it is an ICG
"requirement," we must deal with it now.  Even if it is only a
"preference," we need to deal with it now, because that mean accepting the
"entity" concept now is tantamount to accepting the IETF Trust later.

Personally, I don't think there's any basis in the ICG proposal for
treating it as a requirement or a preference, but it's not what I think
that matters.

As soon as we have our parameters set (so to speak), we should have the
discussion we need to have now, and only the discussion we need to have now.

If we need to have the "IETF Trust" discussion now, I'm ready to contribute
now.  But if we don't, we should all put that discussion aside so that we
can focus on the minimum requirement, as put forth by Jonathan.

I look forward to some clarity at the earliest possible time.

Greg


On Wed, Aug 19, 2015 at 12:31 PM, Seun Ojedeji <seun.ojedeji at gmail.com>
wrote:

> +1 and I like to highlight part of Alan's mail below:
> "....either the IETF Trust, or if that proves impractical,...."
>
> So it has to be clear why seeding to IETF Trust is impractical before
> other trust option is considered.
>
> Regards
> Sent from my Asus Zenfone2
> Kindly excuse brevity and typos.
> On 19 Aug 2015 17:25, "Alan Greenberg" <alan.greenberg at mcgill.ca> wrote:
>
>> Thanks Jonathan,
>>
>> I have stated my position in a number of forums, but not sure if on this
>> list.
>>
>> My preference was that ICANN keep the TM and domain registrations, but
>> that ship has apparently sailed.
>>
>> Given that, and in recognition of the CRISP proposal being the only one
>> that was specific, I can readily live with the assets being taken over by
>> either the IETF Trust, or if that proves impractical, by a specially
>> designed trust in support of all three communities.
>>
>> From a names perspective, if ICANN and its representatives (including the
>> Board as implied by Steve's messages) are satisfied that the Names
>> community functional use of them is protected, I am happy. It might be
>> emotionally difficult to give up control, but I think that we need to get
>> beyond that.
>>
>> I believe that should it come to a vote, this position would also be
>> accepted by the ALAC.
>>
>> Alan
>>
>>
>>
>>
>>
>> At 19/08/2015 11:03 AM, Jonathan Robinson wrote:
>>
>> All,
>>>
>>> The CWG Co-Chairs had a further brief co-ordination call on the IANA IPR
>>> with the CRISP, IANAPLAN and ICG chairs on Monday evening (UTC) and some
>>> useful points emerged. Even though we have a CWG meeting tomorrow, we felt
>>> it to be useful to update you briefly now.
>>>
>>> Essentially:
>>>
>>> 1.     The ICANN statement on the IANA IPR seems to have been well
>>> received by all three operational communities in terms of assisting to
>>> clarify the position. It will be good to have it formally confirmed by
>>> CRISP that the (ICANN) position is consistent with the CRISP proposal.
>>> 2.      There was a little concern expressed over the apparent
>>> distinction between the domain name and the trademark in the ICANN
>>> statement, but this has since been addressed on the CWG list by Steve
>>> Crocker.
>>> 3.      As far as the ICG proposal is concerned, this will be put
>>> forward to the NTIA in its current form (including references to the IPR),
>>> subject to the current public comment period.
>>>
>>> Therefore, most simply put, the key immediate question for the CWG is:
>>> Are we satisfied with the current wording in the ICG proposal i.e. does it
>>> accurately reflect the current CWG position and those of the other
>>> responding communities?
>>> In the words of the ICG, can we (the CWG) accommodate the existing
>>> specified requirements (originating in the CRISP proposal) as part of our
>>> planned implementation (to include the IPR issue)?
>>>
>>> From the co-chairs perspective, and based on our co-ordination
>>> discussion with the other chairs, it will be helpful to all if the CWG can
>>> arrive as fast as possible at a minimum position that is consistent with
>>> the other proposals i.e. openly accepting the transfer of the IANA IPR to
>>> an entity independent of the IANA numbering services operator.
>>>
>>> Thereafter, we can continue to work on all of the details as part of the
>>> implementation work. As we proceed to work on the implementation, a key
>>> early step is likely to be the criteria or requirements for a neutral /
>>> independent holder of the IPR (assuming the CWG accepts that). Resolving
>>> this would assist any subsequent discussion of the suitability of the IETF
>>> Trust as a candidate, in current or future form, or any other such trust to
>>> be used for the same purpose.
>>>
>>> We believe that focussing on the minimum position should be helpful in
>>> getting the CWG to a common position and may even be something we can
>>> complete on our Thursday call?
>>>
>>> Thank-you,
>>>
>>>
>>> Jonathan & Lise
>>> _______________________________________________
>>> CWG-Stewardship mailing list
>>> CWG-Stewardship at icann.org
>>> https://mm.icann.org/mailman/listinfo/cwg-stewardship
>>>
>>
>> _______________________________________________
>> CWG-Stewardship mailing list
>> CWG-Stewardship at icann.org
>> https://mm.icann.org/mailman/listinfo/cwg-stewardship
>>
>
> _______________________________________________
> CWG-Stewardship mailing list
> CWG-Stewardship at icann.org
> https://mm.icann.org/mailman/listinfo/cwg-stewardship
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/cwg-stewardship/attachments/20150819/cb154710/attachment-0001.html>