[CWG-Stewardship] FW: IPR follow up

[Andrew Sullivan]

Hi,

On Tue, Jan 12, 2016 at 03:55:32AM -0500, Greg Shatan wrote:

> significant concerns about its fitness for purpose here.  Can you double
> check this with counsel, and forward him my comment above?​  By the way,
> who is the lawyer in this instance?

I'll ask again, sure.  The lawyer is the IETF's lawyer, Jorge Contreras.

> ​I too hope that we can get to the nub of the issues here.  It's
> unfortunate that the IETF is not more flexible about remaking the trust
> into a form more appropriate for a shared asset

Just to be clear, the reason I think the IETF won't do this is not
because it's somehow pig-headed or inflexible.  Instead, it's because
such a change would be a distraction.  To do it would take a lot of
time and we'd need to be very careful.  The main reason the IETF set
up the Trust has to do with the IETF's main concerns (i.e. Internet
standards): it's overhead as far as we're concerned.  The IETF offered
the Trust as a home for this IANA stuff because it was already there
and therefore convenient.  If it's not convenient, then there is no
reason to use the IETF Trust at all, and certainly no reason to make
our overhead more expensive (in time).

> I should think that the CWG, having wrested control of the
> IANA marks and domain names from ICANN, would not just hand that IPR over
> to an entity over which it has even less control, and which is controlled
> by and governed for the benefit of another OC (i.e., IETF).​

Given that the very existence of IANA is predicated on standards
developed and published by the IETF, it seems to me you have a control
problem of this sort anyway.  

> ​This is exactly why having the OCs structurally part of the governance of
> the trademark owner would be preferable -- in that set-up the issue of
> control is dealt with quite naturally (just as control of the IETF Trust by
> the IETF is dealt with quite naturally now).  Failing that, we will need to
> gain as much control as possible, by use of agreements, advisory boards and
> the like.  I strongly disagree that "assurance" is the only approach to
> that relationship.

Ok.  If you strongly believe this we'd better get to work coming up
with a new organizational structure in the next 2 or 3 months.
Because each community is going to need to undertake its own consensus
process and be past the appeals stage, and the IETF requires perhaps 6
months to guarantee that (I don't know about the RIRs).  Not to put
too fine a point on it, I'd be more sanguine if I thought this group
could propose something simple enough to attract IETF support within a
period anything close to 3 months.

> not the intent here, so a non-exclusive license is not appropriate.  An
> exclusive license is absolutely not a barrier to a single replacement IFO;
> the license to the current IFO would be terminated and a new license
> entered into with the new IFO (alternatively, the license could simply be
> assigned by the current IFO to the new IFO).  If multiple IFOs end up as
> the way things will work, the license can be assigned in part (or
> terminated in part) with regard to each OCs new IFO-of-choice.  This just
> needs to be anticipated in the drafting of the license.  Since this is
> clearly an obvious feature of "separability," I'm sure it will be well
> taken care of.

You have nicely described the barrier I see: that's another thing to
do _in future_ when there is some sort of contentious issue.  I'd
prefer to have the arrangements in place now to accommodate that.  I
think that's why Jorge concluded a non-exclusive license was right,
but there might be another way to do it.
 
> ​I don't understand why you say that.  The IETF Trust (or any new owner)
> cannot have the unilateral right to terminate an IFO over the objections of
> the community that wants to use that IFO.  This could point to another
> serious concern with using the IETF Trust as a holder of the IPR, so it's
> critically important to clarify this issue.

If any Trust is in fact legally responsible for quality control, then
by definition it must be able to say, "So-and-so doesn't mean the
test, we have to cancel," regardless of what the relevant operational
community says.  It's entailed by the duty to enforce.  Hence the idea
that the Trust in effect provides a definition of "quality" that
builds in what the relevant communities think (the assurance
agreements).  The Trust has to be able to act unilaterally because it
owns the trademark, but that unilateral action is defined in such a
way that the Trust does what the community wants anyway.

It appears to me that we have a deep difference of outlook here.  To
me, the key thing is that we arrange things so that the right thing
happens.  I get the feeling that you think the key thing is to have
the formal powers arranged correctly, so that if something goes wrong
legal action can perhaps provide a remedy.  It is that division of
outlook that makes me so pessimistic about the prospect of setting up
a new entity quickly.

Best regards,

A

-- 
Andrew Sullivan
ajs at anvilwalrusden.com