[CWG-Stewardship] Fwd: FW: Revised Community Agreement Draft: 08-05-2016

Greg Shatan gregshatanipc at gmail.com
Mon Aug 8 16:31:42 UTC 2016 

I am re-sending these responses to Kavouss's comments to the list with two
notes:

1.  The use of "unanimous" in the preamble was discussed. The reason for
this use is to make it clear that the RIRs must act unanimously as the
"numbers community" "party" to the agreement.  This is language the numbers
community feels comfortable with, and it apparently tracks language used in
the IANA numbers MoU (but I haven't checked). This verbiage may change as
other alternatives are considered, but the concept remains the same.

2.  In response to the comment on Section 6.5 regarding "joint and several
liability," in which Kavouss commented that "joint cannot be associated
with several."  "Joint and several liability" is a fundamental legal
concept and well-understood term, at least under U.S. law.  Here is a
definition from the Cornell Legal Information Institute
https://www.law.cornell.edu/wex/joint_and_several_liability  (one of many
available on the web):

Joint and Several Liability

When two or more parties are *jointly and severally liable* for a tortious
act, each party is independently liable for the full extent of the injuries
stemming from the tortious act. Thus, if a plaintiff
<http://topics.law.cornell.edu/wex/plaintiff> wins a money judgment against
the parties collectively, the plaintiff
<http://topics.law.cornell.edu/wex/plaintiff> may collect the full value of
the judgment from any one of them. That party may then seek contribution
<http://topics.law.cornell.edu/wex/contribution> from the other wrong-doers.

For example suppose that A, B, and C negligently
<http://topics.law.cornell.edu/wex/negligence> injure V. V successfully
sues A, B, and C, for $1,000,000. If the court used a joint and several
liability system, V could demand that A pay V the full $1,000,000. A could
them demand contribution <http://topics.law.cornell.edu/wex/contribution> from
B and C. However, if B or C could not pay, A would be stuck paying the full
$1,000,000.

Joint and several liability reduces plaintiffs'
<http://topics.law.cornell.edu/wex/plaintiff> risk that one or more
defendants <http://topics.law.cornell.edu/wex/defendant> are judgment-proof
<http://topics.law.cornell.edu/wex/judgment-proof> by shifting that risk
onto the other defendants <http://topics.law.cornell.edu/wex/defendant>.
Only if all defendants <http://topics.law.cornell.edu/wex/defendant> are
judgment-proof <http://topics.law.cornell.edu/wex/judgment-proof> will a
plaintiff <http://topics.law.cornell.edu/wex/plaintiff> be unable to
recover anything. However, this system can cause inequities, particularly
where a relatively blameless defendant
<http://topics.law.cornell.edu/wex/defendant> is forced to bear the
financial burden of an incredibly guilty co-defendant's
<http://topics.law.cornell.edu/wex/defendant> insolvency.
---------- Forwarded message ----------
From: Greg Shatan <gregshatanipc at gmail.com>
Date: Sun, Aug 7, 2016 at 6:07 PM
Subject: Re: FW: Revised Community Agreement Draft: 08-05-2016
To: Kavouss Arasteh <kavouss.arasteh at gmail.com>
Cc: Seun Ojedeji <seun.ojedeji at gmail.com>, Andrew Sullivan <
ajs at anvilwalrusden.com>, "cwg-stewardship at icann.org" <
cwg-stewardship at icann.org>


All,

Please see my responses (in "balloon" comments) to Kavouss's comments.

Greg

On Sun, Aug 7, 2016 at 4:37 PM, Kavouss Arasteh <kavouss.arasteh at gmail.com>
wrote:

> Dear All,
> No matter who made the changes, I am commenting on the text not on the
> author's identity.
> I have had to convert the PDF in word and have done my verifications and
> attached my comments
> There are serious problems in some of the terms.
> I have indicated all in terms of deletion with reasons and/or with
> comments in round bracket.
> Regartds
> Kavouss
>
> 2016-08-07 20:15 GMT+02:00 Greg Shatan <gregshatanipc at gmail.com>:
>
>> The changes were not made by me. The changes were made by the CWG's
>> counsel and the IETF Trust's counsel working collaboratively, which came
>> after discussion of the IANA IPR collaborative group (including reps of all
>> the communities and the Trust).
>>
>> I don't have the redline in Word. I sent to the list everything that was
>> initially sent by the IETF Trust's counsel to CWG's counsel to the Client
>> Committee list.
>>
>> Greg
>>
>>
>> On Sunday, August 7, 2016, Kavouss Arasteh <kavouss.arasteh at gmail.com>
>> wrote:
>>
>>> Dear ALL
>>>
>>> I HAVE no comments on the initial text before being changed
>>> Regards
>>> Kavouss
>>>
>>> 2016-08-07 18:04 GMT+02:00 Kavouss Arasteh <kavouss.arasteh at gmail.com>:
>>>
>>>> Seun
>>>> NO
>>>> PLS DO NOT MAKE MY JOB HARD..
>>>> WHY NOT A RED MARK WORD VERSION
>>>> Regards
>>>> Kavouss
>>>>
>>>>
>>>> 2016-08-07 17:42 GMT+02:00 Seun Ojedeji <seun.ojedeji at gmail.com>:
>>>>
>>>>> Hello Kavous,
>>>>>
>>>>> An option could be that you look at the PDF and make your comment on
>>>>> the word version(though you can make comment on the pdf as well)
>>>>>
>>>>> Another option is if you (or someone) has the previous clean version
>>>>> then one can produce a redline off the two clean versions.
>>>>>
>>>>> Regards
>>>>>
>>>>> Sent from my LG G4
>>>>> Kindly excuse brevity and typos
>>>>>
>>>>> On 7 Aug 2016 4:37 p.m., "Kavouss Arasteh" <kavouss.arasteh at gmail.com>
>>>>> wrote:
>>>>>
>>>>>> Dear Andrew,
>>>>>> Tks again for your kind reply.
>>>>>> Please send me a red mark  Word Version and I Will reply today.
>>>>>> I HAVE SOME CONCERS ON SOME OF THE  CHANGED MADE  BY GREC
>>>>>> Regards
>>>>>> Kavouss
>>>>>>
>>>>>>
>>>>>> 2016-08-07 17:28 GMT+02:00 Andrew Sullivan <ajs at anvilwalrusden.com>:
>>>>>>
>>>>>>> I don't know whetheer you will get that before tomorrow, and that is
>>>>>>> really rather late.  Can you at least say what your concerns are?
>>>>>>> There really isn't a lot of time: this needs to go to public comment
>>>>>>> on Thursday.  An additional day to wait for the comments would be
>>>>>>> bad.
>>>>>>>
>>>>>>> Best regards,
>>>>>>>
>>>>>>> A
>>>>>>>
>>>>>>> On Sun, Aug 07, 2016 at 05:14:50PM +0200, Kavouss Arasteh wrote:
>>>>>>> > Seun,
>>>>>>> > I know that a word version was included but the Word Version is a
>>>>>>> clean
>>>>>>> > Text and it is difficult to identify the changes .I wish to see
>>>>>>> what was
>>>>>>> > the changes introduced by Greg
>>>>>>> > I still need the red mark text in WORD VERSION.
>>>>>>> > Regards
>>>>>>> > Kavouss
>>>>>>> >
>>>>>>> > 2016-08-07 14:09 GMT+02:00 Seun Ojedeji <seun.ojedeji at gmail.com>:
>>>>>>> >
>>>>>>> > > A word version was included in Greg's mail
>>>>>>> > >
>>>>>>> > > Regards
>>>>>>> > >
>>>>>>> > > Sent from my LG G4
>>>>>>> > > Kindly excuse brevity and typos
>>>>>>> > >
>>>>>>> > > On 7 Aug 2016 10:36 a.m., "Kavouss Arasteh" <
>>>>>>> kavouss.arasteh at gmail.com>
>>>>>>> > > wrote:
>>>>>>> > >
>>>>>>> > >> Grec,
>>>>>>> > >> Thank you very much for the amendments. I do not agree with
>>>>>>> some of them
>>>>>>> > >> In order to enable me to provide my counter comments to you,
>>>>>>> pls provide
>>>>>>> > >> a word version of your amendment as soon as convinient
>>>>>>> > >> Regards
>>>>>>> > >> Kavouss
>>>>>>> > >>
>>>>>>> > >>
>>>>>>> > >> 2016-08-07 0:22 GMT+02:00 Greg Shatan <gregshatanipc at gmail.com
>>>>>>> >:
>>>>>>> > >>
>>>>>>> > >>> CWG,
>>>>>>> > >>>
>>>>>>> > >>> I am forwarding a revised draft of the proposed Community
>>>>>>> Agreement
>>>>>>> > >>> relating to the IANA IPR.  In addition to any other comments
>>>>>>> you may have,
>>>>>>> > >>> I draw your attention to the two specific items in the email
>>>>>>> below: (1)
>>>>>>> > >>> identifying an entity to sign for the names community, and (2)
>>>>>>> providing a
>>>>>>> > >>> brief description of the IANA Services used by the names
>>>>>>> community (
>>>>>>> > >>> *see* Exhibit A for descriptions provided by the other
>>>>>>> communities).
>>>>>>> > >>>
>>>>>>> > >>> This will be the subject of further refinement by the IPR
>>>>>>> collaborative
>>>>>>> > >>> group early in the week, with the goal of initiating a public
>>>>>>> comment
>>>>>>> > >>> period as soon as possible after the CWG-IANA meeting on
>>>>>>> Thursday.
>>>>>>> > >>>
>>>>>>> > >>> Greg
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>> ---------- Forwarded message ----------
>>>>>>> > >>> From: Hofheimer, Joshua T. <jhofheimer at sidley.com>
>>>>>>> > >>> Date: Sat, Aug 6, 2016 at 4:55 PM
>>>>>>> > >>> Subject: [client com] FW: Revised Community Agreement Draft:
>>>>>>> 08-05-2016
>>>>>>> > >>> To: Client <cwg-client at icann.org>
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>> Dear Client Committee,
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>> Attached please find a revised draft of the proposed Community
>>>>>>> Agreement
>>>>>>> > >>> for your review and comment.  This is an iterative version
>>>>>>> prepared jointly
>>>>>>> > >>> by counsel (Sidley) to the CWG and counsel to the IETF Trust
>>>>>>> to reflect the
>>>>>>> > >>> 7-point discussion items.  To be clear, it is still a work in
>>>>>>> progress, but
>>>>>>> > >>> we believe ready for the CWG to have an opportunity for review.
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>> Two important issues to highlight:
>>>>>>> > >>>
>>>>>>> > >>> 1) the Names Community needs to determine who will be the
>>>>>>> signatory
>>>>>>> > >>> party, acting on behalf of the Names Community, to the
>>>>>>> Community
>>>>>>> > >>> Agreement.  For your information, the attached draft has the
>>>>>>> organizations
>>>>>>> > >>> put forward to represent the Numbers and Protocols
>>>>>>> Communities; and
>>>>>>> > >>>
>>>>>>> > >>> 2) we need a brief description of the IANA services to be
>>>>>>> provided on
>>>>>>> > >>> behalf of the Names Community.  The following high-level
>>>>>>> description was
>>>>>>> > >>> included in a draft of the Naming Functions Agreement.  If
>>>>>>> this is
>>>>>>> > >>> acceptable for including here is well, please advise (or we
>>>>>>> ask the Client
>>>>>>> > >>> Committee to provide a sufficient description):
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>> The “*IANA Naming Function*” is comprised of:
>>>>>>> > >>>
>>>>>>> > >>> (a)             Management of the DNS Root Zone (“*Root Zone
>>>>>>> Management*
>>>>>>> > >>> ”);
>>>>>>> > >>>
>>>>>>> > >>> (b)             Management of the .INT top-level domain;
>>>>>>> > >>>
>>>>>>> > >>> (c)              Maintenance of a repository of
>>>>>>> internationalized
>>>>>>> > >>> domain name tables and label generation rule sets; and
>>>>>>> > >>>
>>>>>>> > >>> (d)             Provision of other services related to the
>>>>>>> management
>>>>>>> > >>> of .INT top-level domains, at ICANN’s reasonable request and
>>>>>>> at ICANN’s
>>>>>>> > >>> expense.
>>>>>>> > >>>
>>>>>>> > >>> Please provide any comment or feedback as soon as practical,
>>>>>>> as we are
>>>>>>> > >>> trying to finalize the draft for approval by the various
>>>>>>> stakeholders and
>>>>>>> > >>> release for public comment by Thursday.
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>> Thank you in advance.
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>> Cheers,
>>>>>>> > >>>
>>>>>>> > >>> Josh
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>> *Joshua Hofheimer*
>>>>>>> > >>>
>>>>>>> > >>> *Sidley Austin LLP*
>>>>>>> > >>>
>>>>>>> > >>> *jhofheimer at sidley.com <jhofheimer at sidley.com>*
>>>>>>> > >>>
>>>>>>> > >>> *(213) 896-6061 <%28213%29%20896-6061> (LA direct)*
>>>>>>> > >>>
>>>>>>> > >>> *(650) 565-7561 <%28650%29%20565-7561> (Palo Alto direct)*
>>>>>>> > >>>
>>>>>>> > >>> *(323) 708-2405 <%28323%29%20708-2405> (cell)*
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>> *From:* iana-ipr-bounces at nro.net [mailto:
>>>>>>> iana-ipr-bounces at nro.net] *On
>>>>>>> > >>> Behalf Of *Jorge Contreras
>>>>>>> > >>> *Sent:* Friday, August 05, 2016 10:01 AM
>>>>>>> > >>> *To:* iana-ipr at nro.net
>>>>>>> > >>> *Subject:* [Iana-ipr] Revised Community Agreement Draft:
>>>>>>> 08-05-2016
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>> All – attached is a draft of the Community Agreement that Josh
>>>>>>> and I
>>>>>>> > >>> have collaborated on over the past two days.  We believe that
>>>>>>> it reflects
>>>>>>> > >>> the current requirements of the parties, and submit it for
>>>>>>> your review and
>>>>>>> > >>> discussion.
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>> A clean version, as well as a marked version against the draft
>>>>>>> of
>>>>>>> > >>> 07-30-16 (in PDF format) are attached.
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>> Please note a few items that still need to be completed,
>>>>>>> including the
>>>>>>> > >>> description of the IANA Names Service, the identities of the
>>>>>>> CCG
>>>>>>> > >>> representatives, etc.
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>> Best regards,
>>>>>>> > >>>
>>>>>>> > >>> Jorge
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>> 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.
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>> ************************************************************
>>>>>>> > >>> ****************************************
>>>>>>> > >>> This e-mail is sent by a law firm and may contain information
>>>>>>> that is
>>>>>>> > >>> privileged or confidential.
>>>>>>> > >>> If you are not the intended recipient, please delete the
>>>>>>> e-mail and any
>>>>>>> > >>> attachments and notify us
>>>>>>> > >>> immediately.
>>>>>>> > >>>
>>>>>>> > >>> ************************************************************
>>>>>>> > >>> ****************************************
>>>>>>> > >>>
>>>>>>> > >>> _______________________________________________
>>>>>>> > >>> Cwg-client mailing list
>>>>>>> > >>> Cwg-client at icann.org
>>>>>>> > >>> https://mm.icann.org/mailman/listinfo/cwg-client
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>> _______________________________________________
>>>>>>> > >>> CWG-Stewardship mailing list
>>>>>>> > >>> CWG-Stewardship at icann.org
>>>>>>> > >>> https://mm.icann.org/mailman/listinfo/cwg-stewardship
>>>>>>> > >>>
>>>>>>> > >>>
>>>>>>> > >>
>>>>>>> > >> _______________________________________________
>>>>>>> > >> CWG-Stewardship mailing list
>>>>>>> > >> CWG-Stewardship at icann.org
>>>>>>> > >> https://mm.icann.org/mailman/listinfo/cwg-stewardship
>>>>>>> > >>
>>>>>>> > >>
>>>>>>>
>>>>>>> > _______________________________________________
>>>>>>> > CWG-Stewardship mailing list
>>>>>>> > CWG-Stewardship at icann.org
>>>>>>> > https://mm.icann.org/mailman/listinfo/cwg-stewardship
>>>>>>>
>>>>>>>
>>>>>>> --
>>>>>>> Andrew Sullivan
>>>>>>> ajs at anvilwalrusden.com
>>>>>>>
>>>>>>
>>>>>>
>>>>
>>>
>
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