[CWG-Stewardship] [client com] IPR Memo

[Andrew Sullivan]

Hi,

On Thu, Aug 06, 2015 at 01:41:48PM -0400, Avri Doria wrote:

> Of course while Protocols seems willing to have it in a trust, there is
> no indication of their willingness for it to be in a trust other than
> the one they control. So that may be a hangup.

Emphasising that I speak only for myself, I can't see why the IETF
would be any more resistant to some additional trust than it would be
to the idea of ICANN continuing to hold the assets (which, after all,
was the state of affairs about which IANAPLAN declined to comment last
year).  I worry (again because of availability of people) about the
possibility of adding more institutional commitments to the IETF's
ledger, but it may just be a cost of doing business.

> If a trust can be written to make it accountable to each of the 3
> communities with a commitment to do the right thing if one of them
> breaks away from the common IANA, and with 1 rep from each of the
> operational communities designated as the owner of the trust, woud it be
> possible to cut this knot?

There is the issue Greg seems to be worried about, which is the
relationship between the TM holder and the activity so covered.  I
have had different opinions from different lawyers about that view, so
I'm not entirely sure I understand it.  But there might be another way
here that would leave things in the hands of ICANN and still be
acceptable to the numbers community.

Suppose we created a three-person panel with appointees by each of the
three operational communities.  Suppose it had the ability to direct
the ICANN board in how to license the various assets.  Suppose that
this were written into one of the fundamental bylaws.  I wonder
whether that would be adequate to address RIRs' concerns.

It's still not perfect.  The CCWG proposals about the fundamental
bylaws give the ICANN community (or actually, certain participating
constituencies) control over those bylaws, so in the event of a
serious dispute ICANN (the community) could change the ICANN (the
corporation) bylaws in a way that delivers all the problems the
numbers community is worried about.  But it would take time and the
numbers community therefore might have time to react, try to stop it,
and develop (and warn everyone about) an alternative plan.

I have no idea whether this would be any good or fly with anyone, and
this is the first I've even thought of it (so please feel free to rip
it apart).  But in the spirit of trying to see a way out of this
unpleasant conversation, I thought I'd offer it and see what people
think.

A

-- 
Andrew Sullivan
ajs at anvilwalrusden.com