[CWG-Stewardship] Further update on the IANA IPR

[Greg Shatan]

Alissa,

Thank you for the clarification.  That is very helpful.

Best regards,

Greg

On Wed, Aug 19, 2015 at 6:15 PM, Alissa Cooper <alissa at cooperw.in> wrote:

> Hi Greg,
>
> Good questions. From an ICG perspective, the “requirement” that the
> numbers community set out (see para 2083 of the transition proposal) is
> that the IANA IPR be held by an entity that is not the IANA numbering
> services operator. The designation of exactly who that entity will be is
> not a requirement and is not currently specified in the proposal. The
> proposal does note that the numbers community suggested the IETF Trust and
> in response to an ICG inquiry the protocol parameters community indicated
> that it had no objection to the IETF Trust serving as the repository for
> the trademarks and domain name associated with the provision of the IANA
> services (see para 34-35).
>
> Best,
> Alissa
>
>
> On Aug 19, 2015, at 11:44 AM, Greg Shatan <gregshatanipc at gmail.com> wrote:
>
> 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 <http://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
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