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

[Jonathan Robinson]

All,

Disregarding substance for a moment, it may be useful to remind where we are in process.

1. The three operational communities worked together to propose what we perceived to be a viable and acceptable solution to home the IANA IPR
2. Through discussion and inevitable compromise, a document was prepared to reflect a common view this. The document was prepared without legal input / advice.
3. It was agreed to share the document with lawyers (advising the three operational communities) but there was not complete agreement as to whether to do this in sequence or in parallel.
4. From a names / CWG perspective, we felt we should see a first pass from one set of lawyers and then have that reviewed by another i.e. in series. We were mindful of logistics and costs.
5. As time passed without any legal feedback, we proposed that the CWG move ahead with a Sidley review of the document in any event, and so instructed Sidley to do so. What we now have is the feedback from the Sidley review.
6. We have not discussed Sidley's input within the CWG and nor have we had the opportunity to discuss this with the other two communities (although Lise did share Sidley's review documents yesterday).

It seems to me that we now need to review the legal advice, discuss within the CWG and discuss with the other communities. Then agree next steps / a way forward.

As ever, constructive comments and suggestions are welcome.


Jonathan


-----Original Message-----
From: Mueller, Milton L [mailto:milton at gatech.edu] 
Sent: 03 June 2016 15:01
To: cwg-stewardship at icann.org
Subject: Re: [CWG-Stewardship] Proposed Principal Terms of IANA Intellectual Property Agreements



> -----Original Message-----
> 
> 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.

Having been part of this process from the beginning, I can vouch for the fact that this point was made repeatedly during our discussions of the IANA domain and IPR. I was firmly of the impression that the group that worked on this had concluded that the benefits of relying on the IETF Trust outweighed any benefits that might come from a hypothetical need to modify the Trust Agreement. I thought we had made this choice long ago. Surprised that it is coming up again. 

> 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.

Completely agree, this is one of the main reasons why we chose to go with the IETF Trust. 

--MM
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