[CWG-Stewardship] Some clarification (was Re: drift in v5)

[Andrew Sullivan]

Dear colleagues,

On Thu, Jun 11, 2015 at 01:37:37PM -0400, Andrew Sullivan wrote:
> 
> Some of us think that the disposition of the mark and domain name
> doesn't matter, because there are in effect only two possibilities for
> separation.

[…]

I've received some mail off-list about my remarks, and I want to make
some things perfectly clear:

1.  I'm speaking, as always when I send from this address, as an
individual and not as IAB chair.  The IAB chair has no special power
in the IETF, and in my experience as often as not the fact of being on
the IAB is a reason others will believe something _other_ than what
the IAB member says.  I'm just one of the IETF participants, and I do
not represent it or speak for its consensus.  The IETF consensus is
contained in the Internet Draft that emerged from the IANAPLAN working
group.  If I speak as IAB chair, I send the message from the
iab-chair at iab.org address and sign the mail appropriately.

2.  Given what CRISP has proposed, it's quite plain that there's a
conflict between the current ICANN/CWG proposal and the CRISP
proposal.  It's a matter of considerable concern that other
communities, who currently rely on their use of the term IANA, would
have their use of that name (and frankly, rather more importantly,
their use of the iana.org registries) constrained by ICANN or PTI, and
I'd be quite surprised if they'd be ok with just accepting that.  To
my everlasting regret (this is not in jest) I am not a lawyer, so I'm
not competent to speak on how trademarks in particular ought to be or
can be held.  It strikes me that we probably would be wise to consider
the domain name iana.org and the trademark on IANA separately, given
that there are different technical (i.e. both technology-technical and
legal-technical) implications with them.

It strikes me that, if it really isn't legally possible to move the
ownership of the trademark, one possibility would be for ICANN to
grant a permanent, worldwide, irrevocable (well, for as long as they
hold the trademark, with appropriate succession language or however
one does this) royalty-free license to the trademark to current
communities that use the IANA.  This would avoid problems of being
unable to use the trademark.  Presumably in the case of the NRO it
would have to be sublicensable or something like that, so that new
number organizations would not face a problem if they came into
existence.  I think this license would have to survive separation,
which seems like it might be slightly tricky but presumably not
impossible.

I think the position that Greg advanced (along with others)
considerably increases the risk of IANA separation as a necessary
condition for the transition, which seems bad since it would tend to
be destabilising.  I'm sure none of us wants that.

Best regards,

A


-- 
Andrew Sullivan
ajs at anvilwalrusden.com