[CWG-Stewardship] Proposed Principal Terms of IANA Intellectual Property Agreements

[Andrew Sullivan]

Hi everyone,

Lise, thanks for posting this.

Let me start by saying that this note is my personal view, and is not
intended to represent the consensus or in any way the position of the
Trust, any Trustee (even me), or the IETF in general.  I just thought
that in the interests of time I'd get out a response that reflects my
own view.  I'm also sharing the document and these comments with the
IETF Trust's counsel.  Finally, let's all please remember that this is
supposed to be a statement of agreed upon principles that is supposed
to guide counsel on drafting particular agreements, and not itself any
kind of legally binding agreement.

In the General Comments bit, there's an overarching comment that
includes this: "the participants also may need to consider amendments
to the IETF Trust documents …".

I understand uneasiness in CWG about this issue, but I want to be
crystal clear: modifying the Trust Agreement _at all_ for the purposes
of this effort is simply not on.  It involves an enormous amount of
process in the IETF, and we actually don't have time now to complete
such changes even if I thought that it would be practically possible
to make such changes to the IETF Trust.  I've tried to be open about
this all along, so I hope it comes as no surprise.

If people conclude that it is necessary to modify the Trust Agreement
to satisfy the concerns of the CWG, then the IETF Trust is not a
candidate at all for this role.  I hope we all realise that this means
we'd need a new trust to be established.  While I think creating such
a trust is about an afternoon of work for any lawyer competent in this
area of the law, in my opinion the organizational details that we'd
have to work out in such a case are altogether unlikely to happen in
time for this all to be completed by September.

On comment/footnote 14, the goal of the restriction to "technical"
changes is to make the scope the practical, operational effects of the
changes.  That is, I don't think we want everyone to have to agree if
(say) the Trustees have a new technical contact because the staff
person actually handling the mailbox has rotated.  What we want is
that everyone must consent in cases where anything that directly
affects the operation of the iana.org services could be changed.

On comment/footnote 15, if the Trust were to fail in this duty it
would have failed in its fiduciary duty to maintain its assets.  If we
actually get into that situation, the Trustees are in rather big
trouble (and the IETF recall procedures would kick in).  But there is
not, as nearly as I can tell, a way to make the Trust otherwise
"responsible" to the OCs except through this somewhat roundabout
mechanism.  On the other hand, speaking for a moment as one who is a
Trustee, since I'm personally liable under such a circumstance, I have
an awfully large interest in making sure it never happens.  I leave it
to the community to evaluate whether that may be enough protection.

On comment/footnote 16, the optional ability of the admin contact to
cause these changes was just intended for convenience.  The point was
that the tech contact _had to_ approve of such changes.  Item vi
covers the case where the tech contact initiates the change.  Item vii
covers the case where the admin contact initiates the change; the
"optionality" was to allow for the eventual agreements simply not to
allow the admin contact to make the change at all.

On comment/footnote 18, there is in my opinion no way to cause the
Trust to agree to the ICANN IRP.  If this is really a CWG requirement,
then I think the Trust can't do it.  See above about what that might
entail.

On comment/footnote 20, I think the idea is that each community has to
decide that itself, and that's beyond the scope here.  It should be
part of the agreements in each case, but this is a principles
document to which detailed agreements are supposed to conform.

On comment/footnote 21, I will note that the Trust is busily ensuring
that it has funding backup for this, but I expect it would be dunning
the relevant communities for the necessary donations also if it
actually had to undertake such enforcement.  For whatever it's worth,
the Trust has already had to do this with the IETF Marks, so it's not
like we don't know how to do it or what is involved.

On comment/footnote 22, I think this is a missed search and replace.
We had more than one acronym circulating, and it should be "CCG".

On comment/footnote 23, all the legal advice I've seen suggests that
the Trust could not possibly delegate a second right of enforcement to
others without that causing its own legal problems.  If the CWG
counsel could explain why that's not the case, it'd be helpful to me.

On comment/footnote 24, it'd be helpful to me to understand what the
breach scenario is.  The Trust is to be the sole owner of the IPR and
licenses the licensee.  Is the idea the case where the Trust does not
follow the license grant somehow?  In that case, surely the "what if"
scenario needs to be hammered out as part of each license?

On comment/footnote 25, I don't think I disagree, but since this is
just a principles document I don't see why we have to specify
everything.  It's just supposed to be the basis for instructions to
counsel in developing the relevant agreements.

On comment/footnote 26, I think the Trust has tried not to raise this
issue because we think we're trying to do something in the interests
of the Internet, and we have been assuming that if things get to the
point where there is a disagreement about how to pay for everything
then the entire IANA arrangement will come apart pretty quickly
anyway.  In that case, how to pay for this problem will be the least
of our worries, so as a practical matter we've just tried to leave it
out.  I suspect that if we actually have to negotiate such fees and so
on now, we're not going to complete in time.

I hope these are useful comments and responses.  Again, please note
that these are my own opinions and have not been checked with anyone,
and are not an official position of any body or any person or so on.

Best regards,

A



On Thu, Jun 02, 2016 at 01:33:18PM +0000, Lise Fuhr wrote:
> Dear CWG,
> 
> The Client Committee has received the attached documents from Sidley as a preliminary advice in relation to the IANA IPR. We are going to briefly discuss the document on the CWG meeting today and Sidley will be attending the call. This document has been sent to the two other communities,  numbering and protocol, for their information today. We still need to discuss the feedback from their advisors.
> 
> Best regards,
> Jonathan and Lise




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-- 
Andrew Sullivan
ajs at anvilwalrusden.com