[CWG-Stewardship] Process and the last mile

[Jonathan Robinson]

Dear Kavous and CWG Colleagues,

 

The discussion over the past few days has suddenly become more challenging,
especially around the IANA IPR. We have come a considerable distance
together and produced a widely appreciated proposal. We are now under some
time and logistical pressure to complete the task. In my capacity as
co-chair, I decided to put down a some thoughts around where we are right
now. These are my own thoughts although I am in almost daily contact with
Lise on all matters relating to the CWG.

 

As I understand it, our primary objective at the present time is to ensure
that implementation of the CWG ("Names") proposal is executed (by ICANN
staff) in a manner which is consistent with the letter and spirit of our
proposal. Since much of the implementation entails legal or legally oriented
work undertaken by ICANN staff (including ICANN legal staff), we need to
rely on lawyers to advise us in relation to that work. We are still using
Sidley Austin ("Sidley") for that purpose and have explicitly authorised
Sidley (through the CWG Client Committee) to work directly with ICANN legal
on our behalf, where appropriate. Timing constraints have meant that some of
our feedback on ICANN staff's implementation work is necessarily delivered
during the public comment period on the relevant document/s. Again, we have
leaned on Sidley to assist us with drafting the appropriate and complete
form of response via the public comment (primarily mindful of the point
relating to execution consistent with the CWG proposal).

 

In addition to all the work described above, we have also had the need to
resolve the open issue of the IANA IPR. This was not resolved in the CWG
proposal and we explicitly committed to resolve how to deal with it as part
of the implementation work. Moreover, Alissa Cooper has made it crystal
clear on more than one occasion that the transfer of the IANA IPR to its
post-IANA Transition home is a necessary condition for the IANA Transition.
Therefore, we must get this issue resolved and we need to get it resolved to
the mutual satisfaction of the three affected "operational communities". To
this extent, it is not a CWG issue as such but an issue of common interest. 

 

Lise and I held regular co-ordination meetings with the other OCs throughout
our work. More recently, we (the CWG) formed a group comprising the
co-chairs and Greg Shatan, to work in conjunction with the other two OCs on
IANA IPR. That group successfully produced a set of principles for the
transfer of the IANA IPR which the CWG has previously reviewed and
supported. The most recent work has seen the CWG IANA IPR group come
together with the other OCs as well as our respective legal advisors and to
turn the principles into agreements. This was initially very challenging and
common ground was not obvious. But, with the efforts of all and a reminder
that this was a necessary condition for the IANA Transition, very good
progress has been made. We have relied on Josh Hofheimer from Sidley who has
managed to produce an excellent blend of firm advice and willingness to
compromise. Many of the issues are specialist areas (e.g. trademark & trust
law) and we need to rely on Sidley's specialist expertise to guide us.

 

I should note that Greg was put onto the IANA IPR group together with Lise &
myself because this (IP Law) is his personal area of expertise. My
experience of his work on the IANA IPR is that he has been exceptionally
hard working and an excellent resource to the CWG. In my view, we owe him
thanks for that and more!

 

Now, looking ahead, we urgently need to get the IANA IPR documents posted
for public comment so that they do not cause us a problem in the overall
timing. We still have a key issue to resolve in that we need to agree on an
entity sign the community agreement on behalf of the Names Community. Again,
a suitable and appropriate compromise may be required.

 

Please can we all remain together and focussed on only the essential,
necessary and appropriate issues as we work through the "last mile" on our
journey towards the successful IANA Transition.

 

Thank-you.

 

 

Jonathan

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