[CWG-Stewardship] Update on IANA IPR

Fri Aug 14 05:57:18 UTC 2015

On Thu, Aug 13, 2015 at 7:11 PM, Mueller, Milton L <
milton.mueller at pubpolicy.gatech.edu> wrote:

>
>
> 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.
>
>
>
> MM: So your initial claim that the only beneficiary of IETF Trust is the
> IETF was an exaggeration. Why then did you make it?
>

GS:  Milton, you are incorrect.  My statement that the sole beneficiary of
the IETF Trust is the IETF is absolutely accurate; just read the Trust
Agreement.  The Purpose of a trust is a separate concept from the
Beneficiary of a trust.  The Beneficiary is the entity ultimately entitled
to receive the assets or profits of the trust; in essence, the Beneficiary
is owner of the trust's assets, the trust is just holding those assets "in
trust" for that Beneficiary.  The purpose of a trust indicates how the
trust assets may be put to use on an ongoing basis while such assets are
held by the trust, those that "benefit" from the exercise of these purposes
are not in any way Beneficiaries of the trust -- that is a very specific
role.  It's probably clearer not to use any variation of the word "benefit"
when referring to those who are touched by the exercise of the trust's
purpose; that would avoid the confusion inherent in your statement above.

>
>
> 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.
>
>
>
> MM: All three communities are based on registries grounded in IETF
> standards. There is no more appropriate place for the 3 communities’ IANA
> requirements to converge than at IETF.
>

GS:  The fact that IETF sets standards that are then used by two
operational communities does not in any way qualify the IETF or its Trust
as a sole owner of an asset used to refer to services provided to all three
communities by the provider of those services.

>
>
> 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
>
>
>
> MM: So since you want ICANN to hold the mark this means that you want
> ICANN to “become the INTERNET ASSIGNED NUMBERS AUTHORITY? Permanently…? No
> separability, no accountability.
>

GS:  That completely mischaracterizes my position, or is at least way out
of date.  Just because you remain a committed advocate for the CRISP
solution does not mean that I am your antithesis.  My position since Buenos
Aires (if not slightly before) is that I have an open mind, but that we
need to conduct our own analysis of the potential outcomes.  If ICANN
retains ownership of the IANA and INTERNET ASSIGNED NUMBERS AUTHORITY
trademark, thee is no reason that it would be permanent, nor have I ever
said so at any time.  If all 3 communities chose a new IFO, putting ICANN
out of the "IANA business," it would be entirely appropriate for the new
IFO, as the new IANA, to be assigned the trademarks as well.  This could
all be taken care of in contracts and in the ICANN Bylaws, to assure that
it would in fact take place.  Concerns about separability of the IANA
trademarks and domain names is highly exaggerated by those with permanent
distrust of ICANN.  And, as has been pointed out, the IFO operations could
still be separated from ICANN even in the highly unlikely scenario where
ICANN refused to yield the IANA trademarks and domain names in spite of
clear obligations to do so.  As for "accountability," there's no reason why
ICANN owning the IANA brand while it operates as the IANA would have any
impact on accountability (unless you are comparing that scenario to the
oversight and control that the IETF Trust must exercise if it were the
brandowner).

>
>
> 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.
>
>
>
> MM: ICANN’s PTI is _*supposed*_ to be a “mere” contractor, providing
> services by permission of… the names community - NOT the IETF Trust. Your
> continued distortion of this issue is not helpful. You can’t explain how to
> reconcile ICANN ownership of the marks with separability of IFOs, and you
> can’t explain why a names-dominated entity should hold the marks for all
> three communities. Please engage with the real issues.
>

GS:  There's no distortion here. The services may be provided by PTI by
permission of the names community, but PTI's ability to use IANA and
INTERNET ASSIGNED NUMBERS AUTHORITY as its trademarks and trade names comes
by permission (or more accurately, license) from the IETF Trust, if the
IETF Trust becomes the brandowner.  This license, like any trademark
license, must contain quality control provisions which put the IETF Trust
in an oversight and control position over PTI.  And the IETF Trust, like
any brandowner, becomes the entity from which those services are deemed to
come from, even if the licensee and not the licensor is the one physically
providing the services.  Pretending that this is not the way that
trademarks and trademark licenses work distorts the issues and is not
helpful.  As noted previously, in order to resolve issues, one must first
acknowledge issues.

Finally, the separability of IFOs is quite easy to reconcile with ICANN's
continued ownership of the marks.  It's been stated above, but again: ICANN
must be obligated, both by contract and by its bylaws, to grant a license
to any new IFO chosen by a single community, and to transfer the marks and
domains to any new IFO chosen by all of the communities.  If ICANN breached
its contracts and flouted its bylaws, the CCWG has provided a whole panoply
of powers to hold ICANN to account and to force ICANN to comply (even if it
means spilling the Board to do so).  Terming ICANN a "names-dominated
entity" merely prejudices the entire analysis -- ICANN was created to serve
as the IANA Operator for all 3 communities and this is a core function of
ICANN. The role of the ASO and ICANN's role in numbers should not be
denigrated either.  The fact that the names crowd and its issues are noisy
and numerous does not per se make ICANN a "names-dominated entity".  In a
perfect world, we might have a names community entity that was completely
separate from ICANN-as-the-IANA; we don't have that, but we do have
functional (and will have structural) separation, and that should be more
than sufficient.

It's also a mischaracterization to say that ICANN (or the IETF Trust, for
that matter) "holds the marks for all three communities."  Marks don't get
"held."  Marks are identifiers.  (Patents and copyrights may be held in the
passive or neutral sense, but that is because patents and copyrights serve
different functions.)  In this case, the marks identify the entity that
provides the IANA services to the three communities.  If ICANN owns the
marks, that identifies ICANN as the provider of "IANA-brand" services.  If
the IETF Trust owns the marks, that identifies the IETF Trust as the
provider of "IANA-brand" services.  The communities themselves do not "use"
the marks, nor are the communities identified as the providers of
"IANA-brand" services.  As far as trademarks are concerned, these are the
real issues.

Greg

>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/cwg-stewardship/attachments/20150814/d741e87b/attachment.html>