[CWG-Stewardship] Update on IANA IPR

[Gomes, Chuck]

Do the IPR experts in the numbering community as well as other IPR experts agree with Greg’s assessment?  If so, Is the following what is needed: “overhauling the IETF Trust so it is an appropriate brand owner for this brand in which we have distinct interests”?

Chuck

From: cwg-stewardship-bounces at icann.org [mailto:cwg-stewardship-bounces at icann.org] On Behalf Of Jonathan Robinson
Sent: Friday, August 14, 2015 3:13 AM
To: 'Greg Shatan'
Cc: cwg-stewardship at icann.org
Subject: Re: [CWG-Stewardship] Update on IANA IPR

Greg,

Thanks. I have to attribute the addition of D  to Lise ☺
Apologies, I didn’t fact check it o thank you for spotting it.  However, I did write bullet C and your point in each case is well made.

Please note that the note below is intended to convey the sense of what was discussed and to that extent is accurate. That said, hard facts such as you provide are useful to make sure we stay pn track and accurate in what we say witth any of this work. That was one reason I attached the notes Lise and I worked from. To make sure we had a common reference point on some of the facts.
I think you also highlight the value in having someone with the relevant expertise comment on the discussion and, ideally be involved in any discussion to point out some of the key IP issues and facts.

Jonathan

From: Greg Shatan [mailto:gregshatanipc at gmail.com]
Sent: 13 August 2015 23:00
To: Jonathan Robinson <jrobinson at afilias.info<mailto:jrobinson at afilias.info>>
Cc: cwg-stewardship at icann.org<mailto:cwg-stewardship at icann.org>
Subject: Re: [CWG-Stewardship] Update on IANA IPR

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<mailto: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




_______________________________________________
CWG-Stewardship mailing list
CWG-Stewardship at icann.org<mailto:CWG-Stewardship at icann.org>
https://mm.icann.org/mailman/listinfo/cwg-stewardship

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/cwg-stewardship/attachments/20150814/6b6bacb0/attachment-0001.html>