[CWG-Stewardship] Some clarification (was Re: drift in v5)

[Greg Shatan]

I'd like to respond to a couple points above:

It's a matter of considerable concern that other
> communities, who currently rely on their use of the term IANA, would
> have their use of that name (and frankly, rather more importantly,
> their use of the iana.org registries) constrained by ICANN or PTI, and
> I'd be quite surprised if they'd be ok with just accepting that.


​If​

​ICANN retains control of the trademark and domain name, that is
essentially the same situation we have today.  The only difference is the
license between ICANN and PTI.  There should be no need for the other
community's uses of IANA or www.iana.org to be "constrained."  The license
to PTI could be non-exclusive, rather than exclusive, to account for these
other uses.  So, this should be a matter of no concern, not a matter of
"considerable concern."  The underlying concept here is to change as little
as possible; if we're changing too much, that should be easy to fix.  As
noted above, it likely would be better to enter into licenses with the
other communities rather than to continue the current casual set-up (but
that requires some discussion and analysis to determine the best options
open to us).  As long as we anticipate separation (which clearly will do)
that should not be tricky to deal with.

It strikes me that we probably would be wise to consider
> the domain name iana.org and the trademark on IANA separately, given
> that there are different technical (i.e. both technology-technical and
> legal-technical) implications with them.


​Trademark-based domain names should be owned by the trademark owner.
There are nuances and exceptions (e.g., as part of a trademark license for
the mark ACME for shoes, one might allow the licensee to register and use
the domain acmeshoes.com, but you would almost certainly not let them own
acme.com), but that's the basic rule.  So ownership cannot be considered
separately.  Record ownership aside, there is plenty of flexibility in
dealing with the operational aspects of the website(s) found at the domain,
including the potential use of subdomains (as I mentioned earlier).

I think the position that Greg advanced (along with others)
> considerably increases the risk of IANA separation as a necessary
> condition for the transition, which seems bad since it would tend to
> be destabilising.  I'm sure none of us wants that.


​I'm not quite sure what's being said here -- that having ICANN continue to
own the mark increases the likelihood of separation, or increases the
difficulty of separation should that be desired by any of the communities?
If it's the first, I don't see why that would be the case.  If it's the
second, it's only a marginal increase in difficulty in that the trademark
license agreements would need a clause stating that ICANN will grant an
irrevocable worldwide royalty-free license to the new operator for that
community.

Pulling back to the big picture, I think what is needed here is some
rational, dispassionate, collegial and careful discussion of the facts, the
law, the desires, the options, the opportunities and the obligations that
are in play here to come up with a mutually acceptable common solution.
It's unfortunate that the issue could not have been approached by all three
communities at the same time, but that's water under the bridge.  Sharing
knowledge and viewpoints will get us much further than trying to prove one
another wrong, and be more enjoyable to boot (unless you like that kind of
stuff...).

Greg​


On Thu, Jun 11, 2015 at 11:06 PM, Andrew Sullivan <ajs at anvilwalrusden.com>
wrote:

> Dear colleagues,
>
> On Thu, Jun 11, 2015 at 01:37:37PM -0400, Andrew Sullivan wrote:
> >
> > Some of us think that the disposition of the mark and domain name
> > doesn't matter, because there are in effect only two possibilities for
> > separation.
>
> […]
>
> I've received some mail off-list about my remarks, and I want to make
> some things perfectly clear:
>
> 1.  I'm speaking, as always when I send from this address, as an
> individual and not as IAB chair.  The IAB chair has no special power
> in the IETF, and in my experience as often as not the fact of being on
> the IAB is a reason others will believe something _other_ than what
> the IAB member says.  I'm just one of the IETF participants, and I do
> not represent it or speak for its consensus.  The IETF consensus is
> contained in the Internet Draft that emerged from the IANAPLAN working
> group.  If I speak as IAB chair, I send the message from the
> iab-chair at iab.org address and sign the mail appropriately.
>
> 2.  Given what CRISP has proposed, it's quite plain that there's a
> conflict between the current ICANN/CWG proposal and the CRISP
> proposal.  It's a matter of considerable concern that other
> communities, who currently rely on their use of the term IANA, would
> have their use of that name (and frankly, rather more importantly,
> their use of the iana.org registries) constrained by ICANN or PTI, and
> I'd be quite surprised if they'd be ok with just accepting that.  To
> my everlasting regret (this is not in jest) I am not a lawyer, so I'm
> not competent to speak on how trademarks in particular ought to be or
> can be held.  It strikes me that we probably would be wise to consider
> the domain name iana.org and the trademark on IANA separately, given
> that there are different technical (i.e. both technology-technical and
> legal-technical) implications with them.
>
> It strikes me that, if it really isn't legally possible to move the
> ownership of the trademark, one possibility would be for ICANN to
> grant a permanent, worldwide, irrevocable (well, for as long as they
> hold the trademark, with appropriate succession language or however
> one does this) royalty-free license to the trademark to current
> communities that use the IANA.  This would avoid problems of being
> unable to use the trademark.  Presumably in the case of the NRO it
> would have to be sublicensable or something like that, so that new
> number organizations would not face a problem if they came into
> existence.  I think this license would have to survive separation,
> which seems like it might be slightly tricky but presumably not
> impossible.
>
> I think the position that Greg advanced (along with others)
> considerably increases the risk of IANA separation as a necessary
> condition for the transition, which seems bad since it would tend to
> be destabilising.  I'm sure none of us wants that.
>
> Best regards,
>
> A
>
>
> --
> Andrew Sullivan
> ajs at anvilwalrusden.com
> _______________________________________________
> CWG-Stewardship mailing list
> CWG-Stewardship at icann.org
> https://mm.icann.org/mailman/listinfo/cwg-stewardship
>
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