[CWG-Stewardship] Update on IANA IPR

Thu Aug 13 22:00:14 UTC 2015

I wanted to note some statements which appear to be factually inaccurate.

In "D," you state that the IETF Trust "is for the public benefit and the
global internet society."  I do not see that in the trust document.  *The
sole Beneficiary of the IETF Trust is the IETF* (see Article IV of the
Trust Agreement).  in other words, the Trust is for the benefit of the
IETF.  This cannot be ignored.

The Purpose of the Trust is "the advancement of education and public
interest by acquiring, maintaining and licensing certain existing and
future intellectual property and other property used in connection with the
Internet standards process and its administration, for the advancement of
the science and technology associated with the Internet and related
technology."  Although this goes beyond benefiting the IETF, this does not
support the statement in D either.

It should also be noted that all the Trustees of the IETF Trust are members
of the IETF Admin Committee.  As such, it's clear that this is an
IETF-centric trust, which is not consistent with owning an asset that is
used in connection with the needs of all three communities.

In "C," you state that "an underlying motivation was that the IPR should be
held somehow “in trust” for future use by the relevant users of that IPR."
 This ignores the essential nature of what trademarks are.  A trademark
cannot be held in a a neutral manner "in trust" (although it can be owned
by a Trust).  A trademark is an identity, which must be actively assumed.
A brand owner is the proprietor of the trademark and the businesses
identified by the trademark, and needs to assume the obligations that come
with donning that identity.

For example, if you buy the Ralph Lauren trademark, then (for business
purposes), you become Ralph Lauren.  (He may be able sell clothes, etc.
under the name Ralph Lipschitz, but not Ralph Lauren.)  Here, if the IETF
Trust takes over the INTERNET ASSIGNED NUMBERS AUTHORITY and IANA trademark
d the trademarks transferred to the IETF Trust, *the IETF Trust becomes the
INTERNET ASSIGNED NUMBERS AUTHORITY*. The IETF Trust is ultimately
responsible for monitoring and assuring the quality of the work product and
services of any licensee using the brand (currently ICANN).  ICANN is then
a mere licensee, providing services by permission of the IETF Trust under
the IANA brand, which is an IETF Trust brand (just like Vaseline is a
Unilever brand).  By no means is ICANN the Internet Assigned Numbers
Authority anymore.

Second, you do not state who the "relevant users" of the IPR are.
Currently, the only entity using the IANA and INTERNET ASSIGNED NUMBERS
AUTHORITY trademarks as a trademark is ICANN.  (Referring to IANA in an RFC
is using it as a name ("nominative use") not using as a trademark to brand
their work product.)  I suppose the "future users" would be any
replacements for ICANN -- but then it is not really being held "in trust"
by the IETF Trust; the IETF Trust would continue to be the IANA brand owner
and the "future users" would continue to be mere licensees, operating under
the oversight and control of the IETF Trust, which in turn is accountable
only to the IETF.

Perhaps it's entirely acceptable to the CWG that the Internet Assigned
Numbers Authority identity shift from ICANN to the IETF Trust, and that the
IETF Trust becomes responsible for brand protection and quality control of
all INTERNET ASSIGNED NUMBERS AUTHORITY and IANA brand services.  Perhaps
we have no choice but to find it acceptable, or to try to find ways to make
it acceptable during the implementation phase (e.g., by overhauling the
IETF Trust so it is an appropriate brand owner for this brand in which we
have distinct interests)  It certainly seems acceptable to the numbers and
names community.  But we should at least be accurate about what is
happening.

Greg

On Thu, Aug 13, 2015 at 3:52 PM, Jonathan Robinson <jrobinson at afilias.info>
wrote:

> All,
>
>
>
> Following the last CWG meeting, your co-chairs reached out to the chairs
> of the CRISP & IANAPLAN teams as well as the ICG chairs in order to discuss
> the overarching management of the IANA IPR issue. The purpose of the
> discussion was to focus, not on the substance of the issue, but rather to
> best understand the different backgrounds, the current status and the
> prospective routes forward, given where we are today.
>
>
>
> From the perspective of the co-chairs of the CWG, a number of key points
> emerge as follows:
>
>
>
> 1.      There seemed to be an overarching sensitivity to where we ALL are
> in the process and the requirement to not let this IANA IPR issue derail us
> from a “programme management” perspective.
>
> 2.      A second overarching point, directly related to 1 above, is the
> desire (and effectively a requirement) not to do anything which will
> necessitate change any of the three RFP responses such that this change
> would require one or more of the three RFP respondents (names, numbers,
> protocols) to have to go back through their respective community processes
> with the associated risk of delaying the transition.
>
> 3.      Through the current public comment period on the ICG proposal,
> there is the opportunity (for the CWG) to comment on the ICG proposal, but
> subject to 1 & 2 above.
>
>
>
> We also sought to better understand the various tracks of work (including
> that of the CWG) which have seen us arrive at this point and some of the
> detail in that work. Key points from that  include:
>
>
>
> A.     That there is a form of “backstop position” in the CRISP proposal
> that the IPR must not reside within the IFR in future. This underlying
> motivation derives from two points:
>
> a.      In order to facilitate a smooth potential future transition of
> the IANA function
>
> b.      To ensure that the IPR will be used in a non-discriminatory
> manner.
>
> B.     An underlying motivation was that the IPR should be held somehow
> “in trust” for future use by the relevant users of that IPR
>
> C.     That there seemed to be a strongly held view that the Sidley
> interpretation whereby ICANN could retain the IPR AND that this would be
> consistent with the CRISP proposal was not accurate.
> The argument presented being that ICANN is in fact the IANA Functions
> Operator, at least in in the case of numbers.
>
> D.     The IETF is willing to be the holder of the IPR in the IETF trust
> which is for the public benefit and the global internet society. Therefore
> no conflict is envisaged by having the IPR held within the IETF Trust.
>
>
>
> Finally, we considered some next steps / actions as follows:
>
>
>
> -        That the same group agree to talk again in approximately one week
>
> -        CRISP is likely to prepare and share some responses to the
> Sidley memo on IPR
>
> -        We can expect to see some further detail / information on the
> IETF Trust
>
> -        ICG & CRISP offers any knowledge, information and assistance
> that they can  reasonably provide
>
> -        A request for any guidance on timelines from the CWG
>
>
>
> In summary, it seems that we (the CWG) need to separate our prospective
> contribution to implementation from any comment we may wish to make now –
> effectively to the ICG proposal. For now, we need to focus our attention on
> the ICG document and the urgent requirement is to consider whether or not
> the ICG proposal is consistent with the responses received and, if not,
> what comment we wish to submit. Moreover, to be mindful that any such
> comment must not require any of the three RFP responses to be referred back
> to the relevant responding community if we are to retain the current
> overarching timetable. Put simply, what can usefully be done now and what
> can usefully be done later during the implementation phase.
>
>
>
> For your reference, we have included some relevant extracts from the CRISP
> response, the ICG proposal and the Sidley memo which we have used in
> thinking about this issue.
>
>
>
> Thank-you
>
>
>
>
>
>
>
> Jonathan & Lise
>
>
>
>
>
>
>
> _______________________________________________
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> CWG-Stewardship at icann.org
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>
>
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