[CWG-Stewardship] Legal cost reality
jrobinson at afilias.info
Tue Jun 30 07:44:09 UTC 2015
Notwithstanding the input and detail in the thread below, it is clearly incumbent on the CWG to utilise the legal professionals as efficiently as possible. Not cutting corners but also not being wasteful.
This includes such management basics as working effectively with ICANN legal & finance, through whom the bills must ultimately be reviewed and signed off for payment.
It seems to me that there remains a requirement for high-quality, independent legal advice and assistance as we:
a. Respond to any questions and input from the other communities and the ICG (including the IP issues) and
b. Move towards implementation
Lise and I spoke yesterday and we are committed to working with the CWG, the Client Committee and ICANN to make sure we receive that high-quality advice as efficiently as possible and will work to achieve that.
From: Greg Shatan [mailto:gregshatanipc at gmail.com]
Sent: 30 June 2015 05:56
To: Milton L Mueller
Cc: cwg-stewardship at icann.org
Subject: Re: [CWG-Stewardship] Legal cost reality
My comments below.
On Sat, Jun 27, 2015 at 2:40 PM, Milton L Mueller <mueller at syr.edu> wrote:
Thanks for this great message, Chuck. My responses in line below
I don’t disagree with anything Jonathan says but as we try to finish the work, including implementation, to effectively manage costs I believe the following would be helpful to keep in mind:
· The ICANN General Counsel’s office and its primary outside Council firm Jones Day has demonstrated an extreme bias for protecting the corporation at all costs even when that may conflict with the public interest. In my opinion, that is the primary source of the mistrust in the community and that is why independent legal advice was needed and I believe will be needed going forward.
MM: I reluctantly have to agree with Chuck. The reluctance comes from the fact that it would definitely be more economically efficient to rely on ICANN legal to draft the appropriate bylaw changes, and then have the CWG, advised by Sidley, review them. But we can’t do that, for the reasons Chuck enumerates.
I would differ from Chuck a little in that I would not say the problem is “mistrust” per se. The real problem is a direct and obvious conflict of interest between ICANN, Inc. (for whom ICANN legal is the agent) and the interests of the community as reflected in the enhanced accountability process. I think ICANN legal and Jones Day are highly trustworthy agents for their corporate client; they have proven time and again that they will fight for its interests. The problem is that in this case, ICANN’s interests are not aligned with those of us demanding more accountability. In other words, you do not have to think ICANN legal, or Jones Day, are “untrustworthy” in some ethical sense to believe that they should not be holding the pen on the required bylaw changes.
GSS: It doesn't really matter too much who prepares the first actual draft of the bylaws changes (although I would have a marginal preference for our counsel doing so, it's not truly significant). What's important is (a) the CWG prepares the specifications or terms of reference from which the first legal draft is prepared and (b) if ICANN's counsel prepares the first draft, our counsel takes that draft and revises that draft as much as needed to accomplish the objectives of the CWG. I am confident that our counsel are not "shrinking violets" and will "do the necessary" to prepare a second legal draft consistent with our needs. Hopefully, this process can be accomplished without too many "rounds" of drafts going back and forth.
· In cases where bias may not be as big a problem (e.g., the IANA trademark) we should compare what it costs to use expertise in the General Counsel’s office and ICANN’s existing outside Counsel relationships to what it would cost to use Sidley Austin.
MM: Actually, I think this is an area where bias could be a serious problem. Continued ICANN control of the trademarks could be used to constrain or even nullify the right of the community to fire ICANN’s affiliate as IANA functions operator and hire someone else. Furthermore, control of the trademark would give ICANN additional leverage over the numbers and protocol communities, and we already know that the numbers community strongly objects to this.
GSS: First, I am not going to jump to any conclusions about the most appropriate home for the IANA trademarks and domain names, and I suggest we all hold back until the facts and legal analysis are done. That said, I think this concern is vastly overstated and possibly non-existent. In any event, it should be relatively easy to control for. To the extent the bylaws deal with IANA separation, the disposition of or access to the trademarks (and other IANA-related assets, both IPR and non-IPR) by non-ICANN parties (whether by assignment or by license)
can be set forth in the bylaw. The various contracts between ICANN, on the one hand and PTI and the other two operational communities, on the other hand, are also appropriate places to deal with these issues in a straightforward and binding manner. Finally, and not to minimize the importance of the trademark registrations, if by some stretch of the imagination ICANN refuses to abide by binding agreements regarding the disposition of the trademarks, the services can be referred to by another name. Alternately, the non-ICANN entities can use the name based on the rights set forth in the agreements, knowing that if ICANN attempts to stop them, the agreements would make it very highly likely ICANN would lose and embarrass itself in the process.
In this case, however, I do not think we are dealing with a problem that requires a lot of legal work; the main thing we have to do is decide what entity that is not tied to a specific IFO can hold the trademark. Once that is decided, the process of transferring the TM to another owner (neither ICANN nor PTI) I’ll let the TM lawyers among us decide what is the best way to do it.
GSS; We are talking about legal rights -- rights created and governed by law -- so the idea that it doesn't require significant legal work is a little peculiar. It requires enough work to make sure we get this right as a matter of law, not just as a matter of desire. (In the grand scheme of things, it won't be a massive quantity of legal work, so don't worry about the bills.) As noted above, I'm not jumping to conclusions about the most appropriate home for the IANA trademarks. Until we do the work, I see no reason to believe that an entity "not tied to a specific IFO" is an appropriate or desirable owner of the trademarks. Also, I am far from sure that the IETF Trust fits the description of an entity "not tied to a specific IFO." The IETF may, at least arguably, be a provider of IANA services (if not, why would they need a license to the mark?), and the IETF is the sole beneficiary of the IETF Trust.
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