[CWG-Stewardship] FW: [client com] IPR Memo

[Greg Shatan]

I think Martin points out a significant concern with the IETF Trust plan:
accountability (or rather the lack of it).

Between the CWG and the CCWG, we have spent many months and thousands of
collective hours working on methods for ICANN to be held accountable to the
community and for the names community to provide oversight on ICANN's
carrying out the IANA Functions.

I don't think we have spent more than a few minutes considering how we
would exercise oversight over the IETF Trust or how we would hold the IETF
Trust accountable to this community.  We need to contemplate how this fits
into our proposal.  Can any of our suggested oversight and accountability
mechanisms be used for oversight and accountability of the IETF Trust?  How
would they change?  What new mechanisms might need to be created?  If ICANN
is the steward of the IANA functions, as we propose, how will it exercise
that stewardship over IPR it no longer owns?  We have not yet begun to
answer those questions.  It's entirely possible that being unable to say
how we will exercise oversight and control over the IETF Trust could derail
our proposal, given the significance of the IETF Trust becoming the IANA
brand owner.

As for the IETF Trust itself, this will require more fundamental changes
than smoothing over some language.  As it stands, the IETF Trust is an
extension of the IETF.  That's fine when the Trust's job is to hold IETF IP
assets, but transferring ownership of the IANA trademarks/domain names
would be a transformational change -- it would no longer be internal to the
IETF.  In essence, *if the IETF Trust becomes the owner of the IANA
trademarks, the IETF Trust essentially becomes IANA*.  The INTERNET
ASSIGNED NUMBERS AUTHORITY would no longer be the IANA group at ICANN -- it
would be the IETF Trust, licensing ICANN to carry out services under the
IETF Trust's brand.

As such, the source and origin of the services offered by IANA will be the
IETF Trust.  The licensee is just an instrumentality of the licensor --
just as if ICANN was making Mickey Mouse bath towels under a license from
Disney.  The IETF may be the source of protocols and standards that guide
IANA's work and which are entered into a database maintained by IANA, but
the IETF is not now the source or origin of the services themselves.  That
would all change as the IETF Trust becomes IANA.  With that change, the
IETF Trust would need to change considerably.

Is this an insurmountable issue?  No, but it will take serious changes in
the IETF Trust to resolve.  If the IETF Trust is going to become the owner
of non-IETF assets, and particularly the IANA brand owner, that needs to be
reflected in the structure and functioning of the Trust itself.  It
shouldn't solely be an "IETF trust" anymore.  At a minimum, I believe the
Trust would need to make changes to:

   - the Beneficiary of the Trust
   - the Purpose of the Trust
   - the Trustees of the Trust, including the eligibility
   - how the Trustees carry out their duties relating to the IPR held by
   the Trust (or at least, the IANA trademarks/domain names)
   - the ability of the Trustees to license, transfer and dispose of Trust
   Assets
   - the Trustees obligations and fiduciary duties
   - the use of Trust income and financial assets

*Beneficiary: *Now, the sole beneficiary of the Trust is the IETF.  That's
appropriate now, while holding IETF IPR is the Trust's job.  If it becomes
the owner and proprietor of the IANA trademarks/domain names, the
beneficiary would need to be changed or added to to reflect this broader
scope.  Perhaps the "Community Mechanism" contemplated by the CCWG would
become a beneficiary; perhaps the NRO as well.  Perhaps ICANN.

*Trustees:  *The Trustees run the the Trust. Right now, to be a trustee,
one must be a member of the IETF Administrative Oversight Committee
(IAOC).  Indeed, it appears that most (if not all) members of the IAOC
serve as Trustees (and vice versa).  This further emphasizes how
intertwined the IETF Trust is with the IETF.  Again, perfectly acceptable
when it's a trust for IETF assets being held in trust for the IETF. but not
afterwards.  The Trustees would need to be accountable beyond the IETF and
the make-up and eligibility criteria would need to change to reflect the
makeup of the broader community.  We need control over the Trustees and
Trust.

*Actions of the Trustees: *The Trustees/IAOC have broad discretion to run
the Trust (within certain parameters).  They decide whether to grant
licenses for the Trust Assets.  They decide to take or not to take action
with regard to unauthorized use, infringement or dilution of the Trust
Assets.  They decide how to protect the Trust Assets -- what registrations
to file, what registrations to keep or let go.  All things a trademark
owner must do, and all sensible when the IPR is all core IETF IPR.  For the
IANA IPR, all of this is currently in the hands of ICANN with regard to the
IANA trademarks/domain names.  The names community would need to have
various controls, oversight and accountability measures in place so that
the Trustees acted in ways that the names community thought were
necessary.  Practically speaking, ICANN would need to have significant
rights wi8th regard to to protecting and enforcing the IANA IPR.

*Quality Control: T*he Trustees/IAOC would be in charge of exercising
quality control over the services provided under the IANA marks.  The
Trustees would need to set quality standards for all IANA services and then
exercise regular efforts to determine if those standards are met, including
(typically) pre-approving any new service or substantial difference in the
service or how it is conducted.  If the Trustees thought that IANA wasn't
meeting their standards or meeting other terms of their license agreement,
the Trustees could decide that ICANN was in breach of its license agreement
and demand that the breach be cured in a timely fashion.  As for the remedy
if the breach is not cured -- typically, the remedy is termination of the
license agreement.  *In other words, ICANN would be answerable to the IETF
Trustees for all of its IANA services, not merely those relating to
protocol parameters. and could lose the right to use the IANA trademarks
and domain names for all services if the IETF Trustees decided that there
was an uncured breach*.

It should be noted that quality control can be delegated (but not to the
licensee).  In my experience, such delegation rarely if ever happens --
quality control is too important an obligation for a brand owner to
delegate, since it goes to the heart of the licensor/licensee
relationship.  The delegation does not relieve the brand owner of the
ultimate responsibility for quality control -- only the job of carrying out
the inspections, approvals, sample review, etc., against the licensor's
standards.  It's unlikely that ICANN would be the appropriate "delegee" for
such quality control, given the unity of interest between ICANN and PTI.

I don't believe these are merely implementation details.  If we have no
oversight and control over the owner of the IANA brand, if we can't hold
that brand owner accountable, we will have a serious problem.  If the IETF
Trust is not an appropriate IANA brand owner and steward of the IANA
trademarks and domain names, we will have a serious problem.

Greg






On Mon, Aug 10, 2015 at 3:06 PM, Avri Doria <avri at acm.org> wrote:

>
>
> On 10-Aug-15 14:46, Seun Ojedeji wrote:
> > I really don't understand what we are looking to achieve with the new
> > trust that IETF cannot ensure. Do you care to elaborate on why you
> > think IETF is not sufficient as i havn't heard much of the whys and i
> > believe you have more IETF history than myself so maybe there is more
> > devil the details of IETF than i thought.
>
> I have said it a few times. In various ways, but I guess not clearly.
>
> The IETF Trust is excellent and full of trustworthy people.
> I trust them completely to protect IETF interests.
> Their  fiduciary responsibility is, in fact, to the IETF interests.
> In a crisis that could be problematic for the Names interests.
>    (I equate it to my mother having trusted my father's lawyer in their
> divorce)
> Names should not accept such a situation.
>
> The lawyers have indicated that there is legal manipulation that could
> be done to protect Names' interest.
> Jari has indicated that they are looking at language. I assume it is
> that kind of language.
>
> So we can wait to see that language and get our lawyer's opinion on it.
> Or we start working on separate language.
> Or we go down both paths in parallel so as not to interfere with the
> schedule.
> I see no other alternative.
>
> avri
>
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