[CWG-Stewardship] Letter of instruction from the CWG to ICANN regarding the IANA IPR Community Agreement.

Sun Sep 25 01:25:21 UTC 2016

Chris,

On Sat, Sep 24, 2016 at 6:03 PM, Christopher Wilkinson <
lists at christopherwilkinson.eu> wrote:

> Dear Greg:
>
> Thankyou. I trust that I am by now more enlightened.
>

Enlightenment is an ongoing process.

>
> 1. That I may have misread matters is a minor concern that I shall
> endeavour to correct in the next few days. What is of greater import is
> that, as I rather suspect, a wide range of interested parties
> ('stakeholders') may not have read all these documents atall. I propose
> that each and all of the CWG proposed contracts and agreements should be
> posted for public comment in translation to the ICANN working languages.
>

T
hese
 documents have already been the subject of a public comment period,
announced August 11 and closed September 12 
.  See: https://www.ianacg.org/
 and 
https://www.ianacg.org/call-for-public-comment-on-iana-ipr-agreements/.
  This was announced in various places to the names, numbers and protocol
parameters communities, and an email was sent to the CWG-Stewardship
mailing list on that date as well.

>
> 2. I understand that the CCG has been 'created' to regulate the
> relationships between the Naming Community and the IETF Trust, thus the
> interest in IPR.
>   To which we have volunteered to contribute time and - I trust -
> understanding. However,
>

Not really.  The CCG was created (or 'created') because of the IANA IPR,
not to regulate relationships between the Naming Community and the IETF
more generally.  Since the IANA IPR benefits the three communities, and the
IETF Trust is holding the IPR (in a sense) as a favor to these communities,
it was appropriate for the communities to have some oversight of and input
to the IETF Trust solely in relation to the IPR.

The Community Agreement and the CCG is the method for doing so.

>
> 3. The leap from the IETF Trust to directing ICANN - as indicated in the
> draft Letter of Instruction - has not been explained. As far as I can see,
> the small number of delegates to the CCG (Representatives and Co-Chairs,
> including apparently ourselves) have no mandate to direct ICANN about
> anything. What is the eventual scope of these instructions?
>

It has been explained several times.  I'll do it one more time to assist
in your ongoing process of enlightenment.

a.  The Names Community is a party to the Community Agreement.
b.  However, there is no existing self-evident legal entity to sign the
Community Agreement on behalf of the Names Community.
c.  After considerable discussion in the CWG and weighing of alternatives
(both in meetings and on the email list), the CWG determined that it would
be acceptable for ICANN to sign *on behalf of the Names Community* (i.e.,
not for its own benefit).  ICANN was asked if it would do so, and ICANN
returned with a "yes" answer.
d.  The letter of instruction was 'created' to memorialize the terms under
which ICANN would act as signatory.  The letter was then drafted and first
shared with the CWG on September 1. Again, there was discussion of the
letter in meetings and on the list, and the letter was revised, all over
the course of the last 3 weeks or so.  This included input from ICANN's
legal counsel.
e.  The purpose of the letter of instruction is to instruct ICANN to sign
the Community Agreement on behalf of the Names Community and to appoint (as
signatory) the Names Community representatives to the CCG. The letter of
instruction makes it clear that ICANN, in the role of signatory, will act
only at the direction of the Names Community.
f.  The scope of instructions is limited to instructions to ICANN in the
role of signatory of the Community Agreement, and does not go beyond that
limited purpose.  These instructions relate solely to responsibilities
under the Community Agreement, which might appear to accrue to ICANN as
signatory, but which in fact accrue to the Names Community as the real
party in interest.
g.  The letter of instruction is only between the Names Community and
ICANN.  It does not involve the numbers or protocol parameters communities.
 (The legal entities related to these communities are mentioned only
because they are signatories to the Community Agreement, and it is
customary to name all of the signatories to an agreement when identifying
that agreement.)
h.  The letter states that the names community directs ICANN.  The letter
does not state that the CCG (which also includes reps of the numbers and
protocol parameter communities) or the names community CCG reps direct
ICANN.
i.  The names community directs ICANN through the CWG as long as it exists,
and then through decisions facilitated by the chairs of the Chartering
Organizations.  Consistent with the Community Agreement, these directions
may be communicated to ICANN by the Names Community CCG co-chair.

> 4. I would agree to your suggestion that some tutorials might be in
> order. If so, these should take place well before anything is finalised,
> and after public consultation (see 1. above)
>

As noted above, the public consultation has already occurred.  The
documents have already been finalized.  This has all been discussed within
the CWG over the course of the last several weeks.  As Andrew indicated,
the transfer of the IANA IPR is a necessary part of the overall IANA
transition.  The License Agreement and the Community Agreement are a
necessary part of the transfer of the IANA IPR, and setting up the CCG is
a necessary part of the Community Agreement. The letter of instruction is a
necessary part of getting the Community Agreement signed.  So, if these
steps do not move forward, neither does the IANA Transition.

As such the tutorials/review will need to take place after the transition
takes place (assuming it takes place on October 1).

>   Thus it is perhaps premature to demand that ICANN accept the draft
> Letter of Instructions.
>

The "demand" (note: I would not characterize "Please can you accept..." as
a demand) is really just a formality.  The form of the letter should be
acceptable to ICANN and the substance is certainly acceptable to ICANN.
Also this letter is not a "draft"; it is essentially in its final form
(though I might like to see the change discussed by Chuck and Steve Crocker
made, so that the meaning of CCG is more clear).

Finally, this is far from premature; if anything, it is overdue, given the
likely timing of the IANA transition.  As noted above, if ICANN did not
accept the instructions, it would not be in a position to sign the
Community Agreement and (for want of a shoe, etc., ...) the transition
would not occur.  So, I think your suggestion cannot be accepted because it
would block (at least, temporarily) the IANA transition -- although it
would be ironic (and, in a way, impressive) if you could accomplish what
certain US political interests do not appear to have been able to do.

I trust that this has assisted you with some further enlightenment.

Based on this exchange, I'm curious to know why you volunteered to be a
representative on the CCG.  I suppose that if we had had more candidates,
we might have had candidate statements, but we did not.  It could be useful
to understand your viewpoint, approach and commitment to this position as
we move forward.

Best regards,

Greg

>
> Regards
>
> CW
>
>
>
> On 24 Sep 2016, at 21:22, Greg Shatan <gregshatanipc at gmail.com> wrote:
>
> Chris,
>
> You're misreading the agreement and the letter.
>
> The language you quote regarding "guidance, advice, and if expressly
> specified in this Agreement, approvals" is from the Community Agreement
> and refers to the relationship between the Community Coordination Group and
> the IETF Trust.  This should be readily apparent when looking at the entire
> Section 2.1, from which you pulled that quote:
>
> "The CCG is hereby formed, and shall operate in accordance with the terms
> set forth below, to provide guidance, advice, and if expressly specified in
> this Agreement, approvals, to the IETF Trust regarding the stewardship of
> the IANA Intellectual Property."
>
> The language you quote regarding "Instructs" and "directs" is from the
> Letter of Instruction and refers to the relationship between the Names
> Community and ICANN acting as a signatory on behalf of the Names
> Community.  This can be seen in Section 3 of the Letter of Instruction ("ICANN
> will follow the instructions of the Names Community") as well as in Section
> 7 ("ICANN will act solely at the direction of the Names Community").
>
> Each is appropriate for their respective circumstances.
>
> Please let me know if I can be of further assistance in understanding the
> agreements.  It strikes me that, once the CCG representatives have all been
> selected, a webinar or other presentation on the agreements might be in
> order.  This will help those who were relatively less involved in the
> process understand the agreements and the relationships among the parties.
>
> Best regards,
>
> Greg
>
> On Sat, Sep 24, 2016 at 11:01 AM, Christopher Wilkinson <
> lists at christopherwilkinson.eu> wrote:
>
>> Umm … then how did we get from:
>>
>> <<…guidance, advice, and if expressly specified in this Agreement,
>> approvals…>>
>>
>> to " instructs" and "directs" - ?
>>
>> CW
>>
>> On 24 Sep 2016, at 11:22, Jaap Akkerhuis <jaap at nlnetlabs.nl> wrote:
>>
>> > Morning Steve,
>> >
>> >> On Sep 23, 2016, at 22:23, Steve Crocker <
>> steve.crocker at board.icann.org> wrote:
>> >>
>> >> Thanks for this.  What does CCG stand for?  Apologies if it’s there
>> and I missed it.  My eyes glazed over with the plethora of acronyms.
>> >
>> > I'm nog sure whether anybody bothered to answer this, but since I'm
>> > too loosing track of the acronyms and especially this one as well (it is
>> > used for different groups I counted at least three), I looked up a
>> > reference (again).  In this case it is the Community Community Group
>> > created in the "IANA IPR Community Agreement" [1] to "to provide
>> > guidance, advice, and if expressly specified in this Agreement,
>> > approvals, to the IETF Trust regarding the stewardship of the IANA
>> > Intellectual Property".
>> >
>> >       jaap
>> >
>> >
>> > [1]
>> > <https://community.icann.org/download/attachments/49351404/C
>> ommunity-Agreement%20-%2008-05-2016%20marked%20against%2007-
>> 30-2016.pdf?version=1&modificationDate=1473771319000&api=v2>
>> > _______________________________________________
>> > CWG-Stewardship mailing list
>> > CWG-Stewardship at icann.org
>> > https://mm.icann.org/mailman/listinfo/cwg-stewardship
>>
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>
>
>
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