September 2016 - Iana-ipr - nro-apps-2.ripe.net

IANA IPR Follow-up Call #10 | 19 September 16 | Meeting Notes & Chat
by Yuko Green 19 Sep '16

19 Sep '16

Dear all, Please find below the notes and chat of IANA IPR call #10, held on 19 September 2016. Recordings of the meeting will be posted under the Meetings and Work Session section of the Implementation page found here: https://www.icann.org/stewardship-implementation Regards, Yuko Green *** IANA IPR Follow-up Meeting #10 19 September 20:00 UTC Agenda: 1. Agree that we are done with the documents 2. Agree on text for a posting to the ICG site 3. Review schedule and mechanics for getting the agreements signed 4. Confirm each community’s plans to have initial CCG members appointed by Sept 30 Notes: License Agreement & Community Agreement • The definition of the "Names Community" was provided by Greg Shatan to replace the "TBD" ACTION (Jorge): Fill in the blank to finalize the documents within 24 hours ACTION (Lise & Jonathan): Confirm the definition of the "Names Community" with CWG 3. Review schedule and mechanics for getting the agreements signed • Discussed the signature date and the effective date ACTION: Each operational community to have internal conversation about signature and effective dates ACTION (Sam): Share the condition precedence language with the IPR group after discussion 4. Confirm each community’s plans to have initial CCG members appointed by Sept 30 • CWG still in discussion ACTION (Staff): Send a Doodle for next week follow-up call Chat: Brenda Brewer:Welcome all to the IANA IPR Follow-up Meeting on 19 September 2016 @ 20:00 UTC! Josh Hofheimer (Sidley):Hello all Athina Fragkouli:hello! Michael Abejuela (ARIN):Hello everyone! Ray Pelletier:hello Athina Fragkouli:indeed Alan sent this information to the ML Ray Pelletier:is there Muzak so we know this works? Athina Fragkouli:@Jorge if you need anything else please let me or anyone else from the RIRs know Samantha Eisner:ICANN will use the main address Greg Shatan:The listed chartering organizations the Cross Community Working Group to Develop an IANA Stewardship Transition Proposal on Naming Related Functions (“CWG”) – namely, the Country Code Names Supporting Organization (“ccNSO”), the Security and Stability Advisory Committee (“SSAC”), the Generic Names Supporting Organization (“GNSO”), the At Large Advisory Committee (“ALAC”) and the Governmental Advisory Committee (“GAC”) – that have affirmed or hereafter affirm in writing that they agree to be included as participants herein (collectively, the “Names Community”). Greg Shatan:The listed chartering organizations the Cross Community Working Group to Develop an IANA Stewardship Transition Proposal on Naming Related Functions (“CWG”) – namely, the Country Code Names Supporting Organization (“ccNSO”), the Security and Stability Advisory Committee (“SSAC”), the Generic Names Supporting Organization (“GNSO”), the At Large Advisory Committee (“ALAC”) and the Governmental Advisory Committee (“GAC”) – that have affirmed or hereafter affirm in writing that they agree to be included as participants herein (collectively, the “Names Community”). Josh Hofheimer (Sidley):in the first line it should say "...of the Cross" Greg Shatan:The listed chartering organizations of the Cross Community Working Group to Develop an IANA Stewardship Transition Proposal on Naming Related Functions (“CWG”) – namely, the Country Code Names Supporting Organization (“ccNSO”), the Security and Stability Advisory Committee (“SSAC”), the Generic Names Supporting Organization (“GNSO”), the At Large Advisory Committee (“ALAC”) and the Governmental Advisory Committee (“GAC”) – that have affirmed or hereafter affirm in writing that they agree to be included as participants herein (collectively, the “Names Community”). Jonathan Robinson:We can check and if necessary get it signed off on Thursday this week. Jonathan Robinson:CWG meeting is set for 14h00 UTC Thursday. Jari Arkko:We do need to have final contracts Ray Pelletier:Trust is Noon Thursday ET, UTC - 4 Jari Arkko:is there a way to do this on e-mail at the CWG? Jonathan Robinson:@Alissa. Sligth variation. Check the record and if this has been previously agreed, then stick with it. If not, then obtain approval or approved variation on Thursday. Jari Arkko:Jonathan: would your plan + obtain approval on list be feasible? Jonathan Robinson:No objection from me Greg Shatan:I'm fine with that Jonathan Robinson:@Jari. It may be possible to sort out on list. We should not presume so. Lise Fuhr:+1 Jari Arkko:Suggest sept 30 Jonathan Robinson:I would think October 1 Jorge Contreras:The assets will transfer on the Effective Date. Does that affect the date we want to be the ED? Greg Shatan:October 1 is probably more appropriate. Michael Abejuela (ARIN):Agreed october 1 should be the earliest Ray Pelletier:NTIA contract through 30 September Ray Pelletier:? Greg Shatan: There should be a massive simultaneous spasm at the time of transaction. Sort of a mini Big Bang. Greg Shatan:transaction - transition. Michael Abejuela (ARIN):Agree with Greg since the IPR items are born out of the transition. should all be simultaneous at time of transition Ray Pelletier:Seems like there shouldn't be any hiatus between expiration of contract and new multistakeholder model - seems 1 October ought to be the effective date Ray Pelletier:1 Oct is a Saturday Ray Pelletier:All signatures in place by 5 October Lise Fuhr:I agree with Greg on this Lise Fuhr:It could be seen as sneaking something through Michael Abejuela (ARIN):It seems to be the cleanest to make things consistent with the other components of the transition - both logistically and from the optics of it all. Greg Shatan:This is a downstream result of the transition, I'm not sure why this would happen aside from the transition. But groups can always talk. Alissa Cooper:I do not think anyone is trying to sneak anything, nor do I think anyone is looking forward to re-starting conversations about this later. I Alissa Cooper:Nor do I think it's true that there is no substance gained from effectuating these agreements. Alissa Cooper:I understand the reality of this situation, but just wanted to voice my disagreement with those points. Alissa Cooper:some of us are just looking for progress Samantha Eisner:THe contingency language is quite similar among the IETF MoU, the RIR SLA and the IANA Naming FUnctions Agreement Alissa Cooper:Sam, could you paste the contingency language in the chat? Samantha Eisner:so in theory the language has been agreed upon. Or we could follow Jorge's direction and leave blank Samantha Eisner:Here's the language from the Naming Functions Agreement: . This Contract shall be effective as of the last date on which the following conditions have been satisfied: (a) the agreement between ICANN and the United States Department of Commerce (“DOC”), effective as of 01 October 2012 (including any extension thereof) has terminated or expired and (b) ICANN has accepted the responsibility to coordinate and administer the services that were previously provided thereunder. Michael Abejuela (ARIN):The Condition Precedent language from the RIR SLA: Condition Precedent: The occurrence of any event or circumstance under which (i) theOperator is released from its obligations to provide services substantially similar to theIANA Numbering Services, under its contract with the National Telecommunications andInformation Administration, United States Department of Commerce (“DOC”), dated on orabout July 2012 (or any extension thereof) and (ii) the Operator has accepted theresponsibility to provide the IANA Numbering Services. Jorge Contreras:Is there no sunset date in these contingency clauses? Jorge Contreras:Can a party get out of an agreement if the closing doesn't happen in x days/months/years? Samantha Eisner:We have not built a sunset in Jari Arkko:Ted's characterisation is very clear. Thanks. Ted Hardie:I think the uniqueness is a question of timing, more than something inherent in the changes. Ted Hardie:Many of these could have been incremental changes over the years. Ted Hardie:Now they are "a closing", as you put, and I don't think we can change that at this piont. Ted Hardie:But we don't need to close off the future discussion as a result, as Sam pointed out. Greg Shatan:Documents can change until they're signed, as long as the parties agree to those changes. andrew sullivan:invitation came just at beginning of the call Yuko Green:Next call is 16:00 UTC this Wednesday Jonathan Robinson:Will anything have changed / developed by Wednesday? andrew sullivan:well, people could consult with their relevant groups about alternatives Alissa Cooper:Personally I feel that I need more time to consider the different options and Weds would provide more time to consider that. Ray Pelletier:+1 Greg Shatan:Most of the alternatives have no substantive effect. The only one that does is signing and making it effective before everything else moves. Michael Abejuela (ARIN):That is true, but I also think we all want some finality in the documents as early as possible. Greg Shatan:I think it was ignored. andrew sullivan:Fair point Greg Shatan:Because nobody thought anything would be complicated about signing these and making them effective on the same date as everything else. Jonathan Robinson:To set expectations, I do not see any signiificant devellopments from the CWG by Wed Jorge Contreras:I think the contingency language is defective because it has no sunset clause. I would want to consider adding such a clause. Jari Arkko:I'd like to suggest Jorge, Sam, Josh to work together to figure out specific language. FWIW I prefer language that has some contingency clause. But again, i'm not blocking on this issue. Michael Abejuela (ARIN):+1 to Jari...let's have specific language to consider Ray Pelletier:Ys, Sam Ray Pelletier:Ys, Sam Alissa Cooper:I think if the sunset could be included such that it can easily be taken out without affecting the rest of the contingency, that would help Ted Hardie:I agree with Jari--reusing the contingency seems the best course, if we are taking the "closing" metaphor view of this. Jorge Contreras:It would take more study to determine whether a party can terminate an agreement if a contingency is not met. I'm not aware that is automatic. Samantha Eisner:yes, we can try to draft Josh Hofheimer (Sidley):Until the contingency is lifted, there is binding agreement. Josh Hofheimer (Sidley):'no' binding agreement Samantha Eisner:I agree with Josh on the ability to revoke Jorge Contreras:Given that we are dealing with parties around the world, the revocation right should be part of the language Greg Shatan:I'm holding out for a big signing bonus. Jonathan Robinson:Thanks Josh. Bit .. we will have 3 regardless Greg Shatan:Sorry to cause problems. Greg Shatan:Is 10% of the Auction Proceeds to much to ask for? :-) Athina Fragkouli:thank you

1 0

Summary note for ICG site
by Alissa Cooper 19 Sep '16

19 Sep '16

Here is a draft note for posting to the ICG site. — Summary of Changes to IANA IPR Agreements There were seven public comments <link> submitted regarding the IANA IPR agreements, one of which was a correction to a previously submitted comment. One comment <http://ianacg.org/pipermail/ianaiprpubliccomment_ianacg.org/2016-September/…>was about the transition in general. There was nothing actionable for the IPR agreements from this comment. All of the other comments were supportive of the IANA IPR agreements as written. As a result, no edits to the agreements were made on the basis of the public comments received. However, at the time the agreements were put out for public comment, there were a number of placeholders in the text that required further discussion amongst the parties to the agreements and the operational communities in order to be finalized. These items have been addressed as follows: ASSIGNMENT AGREEMENT Section 6.1: The term of indemnification has been set at 3 years. LICENSE AGREEMENT Section 4.3.c: ICANN agrees to cover cost of ongoing enforcement actions existing as of the Effective Date. Section 7.4: The venue of arbitration will be New York and three arbitrators will be appointed if the parties cannot agree on a single arbitrator. Exhibit D, Item 5: Clarification provided that the use of ‘IANA’ as an entity name is permitted in archived RFCs and other documents. COMMUNITY AGREEMENT Preamble: ICANN has been identified as the Names Community signatory. Section 1.24: The following definition of "Names Community" has been provided, as agreed by the CWG: [TBD].

7 6

Summary of public comments
by Alissa Cooper 16 Sep '16

16 Sep '16

We received 7 public comments, one of which was a correction to a previously submitted comment. See http://ianacg.org/pipermail/ianaiprpubliccomment_ianacg.org/ <http://ianacg.org/pipermail/ianaiprpubliccomment_ianacg.org/> . One comment was a comment about the transition in general: http://ianacg.org/pipermail/ianaiprpubliccomment_ianacg.org/2016-September/… <http://ianacg.org/pipermail/ianaiprpubliccomment_ianacg.org/2016-September/…> . I do not believe there is anything actionable for the IPR agreements from this comment. All of the other comments are supportive of the IANA IPR agreements. Thus, I do not believe we have any edits to make to the agreements as a result of the public comments received. If anyone disagrees, please respond to this thread. I’ll send a separate email with an overall update and next steps. Thanks, Alissa

2 1

Revised Assignment and License Agreements
by Jorge Contreras 13 Sep '16

13 Sep '16

All as discussed during this week¹s call, the IETF Trust and ICANN have been resolving their remaining issues in the Assignment Agreement and License Agreement. I have attached for your review slightly modified versions of these documents. The changes are as follows: ASSIGNMENT AGREEMENT Sec. 6.1 indemnification term agreed at 3 years LICENSE AGREEMENT Sec. 4.3.c ICANN agrees to cover cost of ongoing enforcement actions existing as of the Effective Date. Sec. 7.4 arbitration details resolved (3 arbitrators if parties cannot agree on a single arbitrator; venue of arbitration to be NY) Ex. D, Item 5 clarify that use of IANA¹ as an entity name is permitted in archived RFCs and other documents. As discussed, if these changes are acceptable to the RIR and CWG, we will post the above changes as public comments from the Trust. Best regards, Jorge Jorge L. Contreras Contreras Legal Strategy LLC 1711 Massachusetts Ave. NW, No. 710 Washington, DC 20036 contreraslegal(a)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.

6 5

IANA IPR follow-up call #9 | 06 Sep 16 | Meeting Notes & Chat
by Nathalie Vergnolle 06 Sep '16

06 Sep '16

Dear all, Please find below the notes and chat of IANA IPR call #9, held on 06 Sep 16. Recordings of the meeting are posted under the Meetings and Work Session section of the Implementation page found here: https://www.icann.org/stewardship-implementation . IANA IPR Follow-up call #9 06 Sept 2016 Agenda: 1. Legal issues * Indemnification: nature and duration (assignment agreement) * Arbitration items (license agreement 7.4) 2. Update on CWG issue: definition of names community 3. Signature mechanics Participants: Alan Barrett Alissa Cooper andrew sullivan Brenda Brewer Eduardo Jimenez (LACNIC´s Counsel) Greg Shatan Jari Arkko Jonathan Robinson Jorge Contreras Josh Hofheimer (Sidley) Michael Abejuela (ARIN) Nathalie Vergnolle Ray Pelletier Russ Housley Ted Hardie Trang Nguyen Yael Resnick (Sidley) Yuko Green Audio only: Samantha Eisner Notes: 1. Legal issues * ICANN Legal and IETF trust still working through resolving legal issues, good progress has been made, still work in progress. * Group discussed how resulting edits should be dealt with for transparency purposes * Redlined version will be circulated to this group first, and then will be submitted as a public comment from the IETF trust. 2. Update on CWG issue: definition of names community * CWG making progress. * The names community is the chartering organizations, represented by the CWG so long as it is in existence, and by their chairs thereafter. * Working to finalize a definition before the end of public comment period, and submit the definition as a public comment. 3. Signature mechanics * signed/scanned pdfs seem to work for all ACTION (Michael Abejuela): get confirmation from APNIC and RIPE that sign/scann pdf works for them and circulate on the list. AOB ACTION (staff) : doodle for next call on Sept 19 Chat: Brenda Brewer:Welcome all to the IANA IPR follow-up call #9 on 6 September 2016! Jonathan Robinson:Hell All. I have a hard stop at 45 past the hour. Greg is on the call. Lise sends apoloiges. Michael Abejuela (ARIN):Hello everyone, wanted to pass on Athina's apologies for being unable to join the call today. Josh Hofheimer (Sidley):@Jorge -- If the changes you refer to affecting the license agreements are the bracketed 'days' around arbitration process, then Sidley has no objection to the proposed time frames and we can confirm with CWG Jorge Contreras:@Josh - I believe ICANN prefers NY to Chicago for the arbitration venue if the parties cannot agree. I have no objection. Josh Hofheimer (Sidley):Given that CA law controls, I believe CA would be the best venue for attracting arbitrators with substantive knowledge of CA law, but if there is an objection to CA for venue and we are going to be going to another location, then I have no objection to NY. Russ Housley:Both NYC and Chicago are easy to get to from around the world, but NYC may be better connected for people coming from far away Jorge Contreras:can you hear me? Josh Hofheimer (Sidley):nothing from Jorge andrew sullivan:I can't Jorge Contreras:sorry - let me reconnect andrew sullivan:yes, I can hear you Alissa Jorge Contreras:I can hear you but will try something new Jorge Contreras:hold on Greg Shatan:I am always in favor of things happening in New York... Jorge Contreras:I'm at a hotel in Europe -- so conneciton may have gone bad Michael Abejuela (ARIN):From ARIN's side (granted we are US as well), have no objection to PDF exchange Eduardo Jimenez (LACNIC´s Counsel):the pdf works for LACNIC Alan Barrett:I think the signed/scanned PDF is good for AFRINIC, Alan Barrett:but I need to confirm with legal Michael Abejuela (ARIN):we can get confirmaiton from APNIC and RIPE and circulate on the list Michael Abejuela (ARIN):happy to do so Alissa Ray Pelletier:By 30 Sept sign? Ray Pelletier:Dpesnt NTIA have until midnight to extend on 30 Sept? andrew sullivan:thanks, bye Michael Abejuela (ARIN):Thanks everyone Josh Hofheimer (Sidley):bye Ted Hardie:Thanks Jonathan Robinson:Thank you Alissa AC Room recording: https://icann.adobeconnect.com/p3lsn6l30tx/ Thanks, Nathalie. Direct line: +1-310-578-8957 Mobile: +1-310-938-1037 Skype: nathalie.vergnolle.icann Jabber: nathalie.vergnolle(a)jabber.icann.org

1 0

Agenda for Sept 6 call
by Alissa Cooper 06 Sep '16

06 Sep '16

1. Legal issues - Indemnification: nature and duration (assignment agreement) - Arbitration items (license agreement 7.4) 2. Update on CWG issue: definition of names community

2 3