[CWG-Stewardship] Further update on the IANA IPR

Thu Aug 20 16:49:33 UTC 2015

Izumi & Nurani,

Thank-you for that helpful and timely input.

Jonathan & Lise

-----Original Message-----
From: Izumi Okutani [mailto:izumi at nic.ad.jp] 
Sent: 20 August 2015 17:21
To: cwg-stewardship at icann.org
Subject: Re: [CWG-Stewardship] Further update on the IANA IPR

Greg and CWG members,

We'd like to confirm that Alissa's comment correctly captures the number
community proposal.

It is consistent with our proposal if the criteria is described so that an
entity holding the IPR on the IANA trademark and iana.org domain is not the
IANA Function Operator for the IANA Numbering Services.
It is not a requirement to specify a particular entity holding the IANA
trademark and iana.org domain. The IETF Trust is identified as an acceptable
option and we note that the IETF Trust has expressed that it is possible for
them to be its holder if so desired.

Regards,
Izumi & Nurani

On 2015/08/20 7:15, Alissa Cooper 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 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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