[CWG-Stewardship] [client com] IANA IPR Community Agreement and License Agreement drafts

Tue Aug 2 19:18:18 UTC 2016

Good evening
Reference:  Proposed ICANN/PTI-IETF Trust License Agreement (several drafts)
I have a few comments regarding these texts. Since none of them are conclusive I reserve my definitive comments to the necessary public consultation on the proposed final agreement, particularly as I am not party to the on-going negotiations. Indeed it is absolutely essential that this License Agreement goes out for public comment to - at least - the full CWG List. The license agreement will regulate several critical parameters regarding notably the terms and conditions of the reassignment of IANA IPR to eventual successor entity to ICANN/PTI and the registration of non-IETF protocols.
1.		In general I find that the draft agreement is not balanced. The PTI party benefits from extensive privileges, particularly insofar as matters are to be determined at the parties' own expense. In that context may I recall that the IETF Trust has an annual budget of about $50k, of which $25k is for legal expenses. Whereas PTI - as we have seen recently - can spend millions of dollars on legal fees. Specifically, whenever it is said that each party may be represented by counsel, one must assume that PTI will be represented, as we have recently seen, whatever the cost, and the IETF Trust will be represented at best by itself, without the financial support of ICANN which would have been available in the past to defend the interests of IANA.
In general, this license agreement should say nothing about succession, separability or separation of the IANA functions.  All that, should the need ever arise is matter for the ICANN Empowered Community as a whole and should not be preempted by a technical license agreement between ICANN/PTI and the IETF Trust, the former having no standing to regulate its own future and the latter - as such - having very little standing in the ICANN community, except through the participation of its members in their respective capacities.

My comments below, follow the order of the document and not necessarily the relative importance of the issues.

2.	Article 1.1:	The exclusive reference to the American Arbitration Association (AAA) is not appropriate in this context. The scope of the agreement is potentially 'global' and 'worldwide'.
	(a) there are several other arbitration fora which have a broader global reach and (b) at the very least, ICANN/PTI and IETF Trust should conduct an open call for proposals to fulfil this function.

3.	Article 1.2:	The reference that "the Internet Society … is not an Affiliate of the Licensor." is perplexing to say the least:
	(a) I recall that IETF and ISOC created the Trust; (b) several of its recent Trustees are present or past ISOC Board members, (c ) the IETF Trust certainly makes an annual report to the ISOC Board:
	http://www.internetsociety.org/search/gss/ietf%20trust

	I suggest that it would be more transparent to state what IS the relationship between ISOC and the Trust, rather than to state what it is NOT.

4.	Articles 2.1 and 3.1:	For reasons that I have set out on several previous occasions, I do not accept the language that "… three independent and separately terminable licenses are granted thereunder with respect to the three categories of IANA services …".

Indeed, eventual separation of the IANA functions would give rise to unmanageable oversight requirements on the part of the rest of the Internet community, including the GAC.

5.	Article 4.1:	Goodwill: The goodwill that accrues to IANA relates to its past and present operators - in some cases at a personal level. The idea that such goodwill can be assigned to the IETF Trust by a simple legal act appears to be rather fanciful. Indeed I rather doubt that the IETF Trust would be volunteering for that role!

6.	Article 4.3: Policing and enforcement: So, the right of enforcement, including employment of counsel, devolves to the IETF Trust, with a legal budget of $25k! 
 	Colourful, if not absurd. Insofar as such enforcement has been required in the recent past, the costs would have devolved to ICANN.

7.	Article 6.1: Term: the proposed amendment reinforces the supposition that the authors envisage separation of the IANA functions. No appropriate in this context.

8.	Article 6.6 c: I do not agree to the amendment "… or to its successor licensee(s) for the terminated services…"
	This amendment could (a) by-pass or short-cut the established procedures within the Empowered Community, and (b) presupposes that there would be plural successor licensees. Not appropriate in this context.

9.	Exhibit A: IANA Protocol Parameter Service:	I do not agree to the proposed amendment "(ii) registering protocol parameters of interest to the Internet community, upon agreement with other parties, provided such protocol parameters do to conflict with clauses (i) and (iii)". (i.e. specified in RFCs and/or made available to the public - but not necessarily free for use.)

This amendment would open the door to the registration of proprietary protocol parameters which would cumulatively, over time, prejudice the Open Internet, increase costs to the final users and undermine the conditions of fair competition among Internet based services.

		*		*		* 

I trust that these comments shall reach the negotiators concerned. May I re-iterate, that the final proposal must be subject to open public consolation of all interested parties.

Regards

Christopher Wilkinson

On 30 Jul 2016, at 22:43, "Hofheimer, Joshua T." <jhofheimer at sidley.com> wrote:

> 
> Jonathan, Lise and the Client Committee,
>  
> See attached.  Sidley will prepare a table for your review that highlights the key departures from our proposed drafts.
>  
> Best regards,
> Josh
>  
> Joshua Hofheimer
> Sidley Austin LLP
> jhofheimer at sidley.com
> (213) 896-6061 (LA direct)
> (650) 565-7561 (Palo Alto direct)
> (323) 708-2405 (cell)
>  
> From: iana-ipr-bounces at nro.net [mailto:iana-ipr-bounces at nro.net] On Behalf Of Jorge Contreras
> Sent: Saturday, July 30, 2016 10:03 AM
> To: iana-ipr at nro.net
> Subject: [Iana-ipr] IANA IPR Community Agreement and License Agreement drafts
>  
> Dear colleagues,
>  
> We have attached for your review clean and redlined versions of the Community Agreement and License Agreement, which have been marked against the versions distributed on July 5.  We have inserted numerous
> comments in the marked version using the MS Word comment feature. These comments are intended to address specific text or suggestions made by CWG, RIR or IETF during the last round.
>  
> In these candidate agreements, we have accepted a number of suggestions both the operational communities. We know that everyone is anxious to get these done, and many of the changes seem to us to be reasonable and in keeping with the Trust’s responsibilities.
>  
> What we have not accepted, and what we do not believe we can accept, is any arrangement in which the Trust is subject to "approvals" by the CCG.  We remain convinced that such acceptance would be contrary to
> the Trust's anticipated fiduciary responsibility as the holder of the Marks, and the Trustees cannot responsibly expose the Trust to such a threat.  We believe that any independent trust would face this problem.
>  
> In addition, we do not think that, given the terms of our Trust Agreement, the Trust is capable of acting as a "steward" for other operational communities.  The existing Trust Agreement also does not permit the Trust to transfer away any asset once it is owned by the Trust, so we cannot accept any term that anticipates such a transfer.
>  
> We realize that some people would prefer to amend some terms of the IETF Trust Agreement.  That may be possible in the future in order to accommodate some of the above worries.  But all changes have to go through the IETF consensus process, and there simply isn't time to do that this year.  Hence our agreement must work with the Trust as it currently exists.
>  
> We hope that you will agree that we are making substantive and collegial process here, and we hope you understand that the existing terms of the Trust Agreement are a hard limit on what we may possibly
> do.  We look forward to additional comments and to a fruitful discussion on our next call.
>  
>  
> Jorge L. Contreras
> Contreras Legal Strategy LLC
> 1711 Massachusetts Ave. NW, No. 710
> Washington, DC 20036
> contreraslegal at att.net
>  
> The contents of this message may be attorney-client privileged and confidential.  If you are not the intended recipient, please delete this message immediately.
>  
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