[CWG-Stewardship] drift in v5
Greg Shatan
gregshatanipc at gmail.com
Fri Jun 12 18:07:42 UTC 2015
Avri,
Your point on administrative functions is absolutely consistent with my
understanding. We have discussed having some form of "services agreement"
whereby ICANN would provide various "back-office" and enterprise-wide
services (such as HR, etc.) to PTI. It has not been the view of the CWG
that PTI needs to be a completely self-sufficient, hermetically sealed
entity. That would be economic folly. You don't need to have a full-time
HR person (much less, an HR staff) for 12 or so people, for example.
Greg
On Fri, Jun 12, 2015 at 1:57 PM, Avri Doria <avri at acm.org> wrote:
> Hi
>
> I think of the ICANN IANA function staff as becoming PTI staff, but I
> do not think you need to move all of the administrative functions that
> support that staff as they can be 'outsourced' (or rather remain) with
> ICANN for as long as PTI is an affiliate. Some, on the other hand may
> be internalized to PTI at some future point.
>
> But yes, I thought we were talking about transferring the assets that
> pertain to the IFO to the PTI.
>
> avri
>
>
> On 11-Jun-15 22:15, Seun Ojedeji wrote:
> >
> > Hi,
> >
> > Apart from iana.org <http://iana.org>, there is IANA trademark itself
> > and based on your response I presume you support a transfer of that as
> > well. So we may also simply refer to the new IANA staff as PTI staff
> > and not ICANN staff since they are part of the transfer and since we
> > (the CWG) want a wholely standalone/separated IFO. That would also
> > mean more department will need to spring up within PTI, like the HR
> > for instance.
> >
> > I hope we are thinking about all these complications, or maybe it's
> > not as complicated as i think. Perhaps we can just hope that the other
> > 2 communities will accept and move on.
> >
> > Regards
> >
> > sent from Google nexus 4
> > kindly excuse brevity and typos.
> >
> > On 11 Jun 2015 23:26, "Avri Doria" <avri at acm.org
> > <mailto:avri at acm.org>> wrote:
> >
> > Hi,
> >
> > I tend to look at it much more simply.
> >
> > ICANN has the domain name now.
> > it is one of the IANA assets.
> >
> > The Name and Numbers communities have chosen to remain ICANN's
> > customers.
> > There is no reason to transfer ICANN/IANA assets to one of ICANN's
> > customers.
> >
> > If ICANN is transferring all of the IANA assets to PTI, then the
> > domain
> > name registrations should go with it.
> >
> > avri
> >
> >
> > On 11-Jun-15 12:53, Milton L Mueller wrote:
> > >
> > > I see that neither Alan nor Greg has addressed the separability
> > issue.
> > > I will take that as a concession that it cannot be answered.
> > There is,
> > > as I pointed out twice, a contradiction between ICANN owning the
> > marks
> > > and the ability to move the IFO. That is true whether or not ICANN
> > > offers a royalty-free license – that still puts ICANN in control of
> > > its use rather than the technical community and ICANN/PTI is an
> IFO.
> > > And that is central to the controversy. Both the IETF and the
> CRISP
> > > team wanted the marks separate from ICANN because ICANN is an
> > IFO and
> > > they did not want a specific IFO to own those marks.
> > >
> > >
> > >
> > > With respect to that point, John Poole, I am afraid your review
> > of the
> > > trademark record is not relevant to this controversy. Just to
> > fill in
> > > your historical record a bit more, USC Information Sciences
> > Institute
> > > was the institutional home of Jon Postel, who was working on
> > behalf of
> > > the IETF and was one of the developers of both the IP protocol
> > and the
> > > numbers and names registry. So if you want to make that history
> > > relevant, you would have to note that his position was far closer
> to
> > > that of the current IETF than to ICANN. Indeed, the All the
> > trademark
> > > records reveals is something that we already know and which has no
> > > bearing on what we are doing now: which is, that when ICANN was
> > > created, it was assumed that Postel would move to become part of
> it,
> > > and that ICANN would “be” the IANA. But as I have explained
> > elsewhere,
> > > that did not happen; ICANN became the DNS policy making entity
> > and the
> > > IANA was a small appendage to it. We are in a very different
> > situation
> > > now and the TM arrangements need to adjust.
> > >
> > >
> > >
> > > I am amused by the fact that Greg says we can avoid this issue
> > because
> > > our remit does not extend to the other operational communities –
> but
> > > then insists on doing something that directly contradicts the
> > > proposals of the other operational communities.
> > >
> > >
> > >
> > > I am wondering what really is driving this concept because it is
> > > certainly not consensus within this CWG, it is not the merits of
> the
> > > arguments, it is not consistency with the general principles we
> > agreed
> > > on.
> > >
> > >
> > >
> > >
> > >
> > > *From:*john at expri.com <mailto:john at expri.com>
> > [mailto:john at expri.com <mailto:john at expri.com>] *On Behalf Of
> > *John Poole
> > > *Sent:* Thursday, June 11, 2015 12:17 AM
> > > *To:* cwg-stewardship at icann.org <mailto:cwg-stewardship at icann.org>
> > > *Cc:* Alan Greenberg; Greg Shatan; Andrew Sullivan; Milton L
> Mueller
> > > *Subject:* Re: [CWG-Stewardship] drift in v5
> > >
> > >
> > >
> > > CWG, Alan, Greg, Andrew, Milton:
> > >
> > > Reference to the historical record may also be helpful to
> > resolve this
> > > issue (IANA marks):
> > >
> > > USC/ICANN TRANSITION AGREEMENT (USC is the University of Southern
> > >
> > California)—
> https://www.icann.org/resources/unthemed-pages/usc-icann-transition-2012-02-25-en
> > > which states in 2.1:
> > >
> > > 2. INTELLECTUAL PROPERTY.
> > >
> > > 2.1 Service Mark and Copyright Assignment. USC hereby assigns and
> > > transfers without warranty unto ICANN USC's entire right, title and
> > > interest in and to the following:
> > >
> > > (a) the "Internet Assigned Numbers Authority" service mark pending
> > > registration, the "Internet Assigned Numbers Authority" common law
> > > service mark, the "IANA" service mark pending registration, the
> > "IANA"
> > > common law service mark, and the common law service mark in the
> IANA
> > > logo shown in Exhibit "A" attached hereto (collectively, the
> > "Service
> > > Marks"), and the goodwill associated with the Service Marks; and
> > >
> > > (b) the copyright to, and all other exclusive rights to reproduce,
> > > distribute, prepare derivative works based on, display, and
> > otherwise
> > > use, the IANA logo shown in Exhibit "A" attached hereto, pursuant
> to
> > > the terms and conditions of that certain Service Mark and Copyright
> > > Assignment attached hereto as Exhibit "B" (the "Service Mark and
> > > Copyright Assignment")."
> > >
> > > The University of Southern California – ICANN Transition
> > Agreement is
> > > specifically referred to and approved by the United States
> > Government
> > > in the original IANA Contract (February 9, 2000)
> > > http://www.ntia.doc.gov/files/ntia/publications/ianacontract.pdf
> > >
> > > Nowhere in the historical record do I find any other entity
> > holding or
> > > claiming Common Law or Registration rights to the IANA marks
> > prior to
> > > the University of Southern California (USC), although RFC 1174 says
> > > that "Throughout its entire history, the Internet system has
> > employed
> > > a central Internet Assigned Numbers Authority (IANA)..."
> > >
> > > The first reference to the name "IANA" or “Internet Assigned
> Numbers
> > > Authority” in the RFC series is in RFC 1060:
> > >
> > > RFC 1060 --March 1990:
> > >
> > > “… current information can be obtained from the Internet Assigned
> > > Numbers Authority (IANA). If you are developing a protocol or
> > > application that will require the use of a link, socket, port,
> > > protocol, etc., please contact the IANA to receive a number
> > assignment.
> > >
> > > Joyce K. Reynolds
> > > Internet Assigned Numbers Authority
> > > USC - Information Sciences Institute
> > > 4676 Admiralty Way
> > > Marina del Rey, California 90292-6695 …”
> > >
> > > US Trademark Registration for IANA shows an original “Filing Date
> of
> > > March 21, 1997” by “Owner (REGISTRANT) University of Southern
> > > California NON-PROFIT CORPORATION CALIFORNIA University Park,
> > ADM 352
> > > Los Angeles CALIFORNIA 900895013,” subsequently assigned by USC
> > > (“entire interest”) to ICANN
> > >
> >
> http://assignments.uspto.gov/assignments/q?db=tm&qt=sno&reel=&frame=&sno=75261386
> > >
> > > ICANN subsequently filed its own separate registrations of the IANA
> > > marks in 2001 and 2007.
> > >
> > > Domain name iana.org <http://iana.org> <http://iana.org> has a
> > "created date" of
> > > 1995-06-05 according to the WHOIS, current registrant is ICANN.
> > >
> > > The historical record, in my view, supports the position that these
> > > property rights should remain with ICANN which can then license
> > their
> > > use by its affiliate PTI, or any other third party.
> > >
> > > Best regards,
> > > John Poole
> > >
> > >
> > >
> > > On Wed, Jun 10, 2015 at 10:29 PM, Alan Greenberg
> > > <alan.greenberg at mcgill.ca <mailto:alan.greenberg at mcgill.ca>
> > <mailto:alan.greenberg at mcgill.ca
> > <mailto:alan.greenberg at mcgill.ca>>> wrote:
> > >
> > > Greg, not quite.
> > >
> > > You are thinking about this as a TM attorney. There are also
> > > technical issues. Currently iana.org <http://iana.org>
> > <http://iana.org> has uses
> > > within all three communities and it is simple to do since it ia
> > > all run out of the current IANA. If there were to be a split at
> > > some point, it is not just a matter of granting the right to
> use
> > > the TM, but creating the mechanics to allow the domain name
> > to be
> > > transparently used by all three entities. And if one of the
> > groups
> > > has left because they no longer have faith in the ability of
> the
> > > then-current IANA to do things correctly, that could be
> > problematic.
> > >
> > > But the problems will be there regardless of where the
> > iana.org <http://iana.org>
> > > <http://iana.org> name resolves to if there is a split. The
> best
> > > we can do is try to cover it with contractual assurances.
> > >
> > > And as was pointed out ion the IETF list when this was first
> > > discussed. Although no one wants to stop using iana.org
> > <http://iana.org>
> > > <http://iana.org>, and it would probably more disruptive for
> the
> > > IETF than others (my recollection is that the name is built
> into
> > > code), we would survive.
> > >
> > > Alan
> > >
> > >
> > >
> > > At 10/06/2015 11:15 PM, Greg Shatan wrote:
> > >
> > > Alan,
> > >
> > > You took the words out of my mouth. A clause in the
> > > agreements between ICANN and the other two communities
> > should
> > > require ICANN to grant a worldwide royalty-free license
> > to use
> > > the trademarks. This is a simple fix. If we want to get
> > fancy,
> > > there can be a contingent license that automatically
> springs
> > > into place when the customer separates.
> > >
> > > I also agree with your point on defense/enforcement.
> > >
> > > Greg
> > >
> > > On Wed, Jun 10, 2015 at 11:03 PM, Alan Greenberg
> > > <alan.greenberg at mcgill.ca
> > <mailto:alan.greenberg at mcgill.ca> <mailto:alan.greenberg at mcgill.ca
> > <mailto:alan.greenberg at mcgill.ca>> >
> > > wrote:
> > >
> > > I refrained from weighing in when this was first
> > discussed and
> > > in this iteration. But I will now. I think that whatever
> the
> > > solution, there must be some principle adhered to:
> > >
> > > 1. The TM must be owned by an entity that is prepared to
> > > defend it if necessary.
> > >
> > > 2. Whoever owns it must enter into an agreement with all
> > three
> > > users of it (or the other two if the owner is one of the
> > > users) so that if that user chooses to move withdraw
> > from the
> > > IFO used by the others, the TM owner will grant it all
> > > necessary rights and privileges to continue using the TM
> > with
> > > no user disruption.
> > >
> > > In my opinion, it makes sense for the owner to be ICANN for
> > > the immediate future, because it will, either directly or
> > > through PTI, have agreements with the RIRs and the IETF and
> > > those agreements are reasonable places in which to embody
> > > principle 2. And ICANN has the funding and legal
> > resources to
> > > defend the TM if necessary.
> > >
> > > But there are certainly other solutions that could also
> > > satisfy both principles...
> > >
> > >
> > >
> > >
> > >
> > > _______________________________________________
> > > CWG-Stewardship mailing list
> > > CWG-Stewardship at icann.org <mailto:CWG-Stewardship at icann.org>
> > > https://mm.icann.org/mailman/listinfo/cwg-stewardship
> >
> >
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