Jorge and Russ,

Thank you, it's useful to see the IETF's comments on the CWG draft.

However, what I asked for were the IETF's comments on the IETF Trust's initial draft.  Jorge mentioned those comments in a prior email, and I was responding to that.

Greg

On Mon, Aug 1, 2016 at 1:56 PM, Jorge Contreras <contreraslegal@att.net> wrote:
Russ – thanks for sharing with the list.

Greg – this responds to your request of last night relating to the IETF comments.

All – Russ provided these comments to the Trust on 7/27 and they have already been reflected, along with the CWG and RIR suggestions, in the revised drafts distributed to everyone on 7/30.


From: <iana-ipr-bounces@nro.net> on behalf of Russ Housley <housley@vigilsec.com>
Date: Monday, August 1, 2016 at 11:28 AM
To: <iana-ipr@nro.net>
Subject: [Iana-ipr] CWG Comments to IANA IPR License and Community Agreement

A few of us on on this list to represent the IETF community.  Here are my thoughts, wearing that hat, on the CWG proposed changes to the two agreement documents.


IANA COMMUNITY AGREEMENT

I like the add red definitions to Section 1, but I think they made 1.9 too hard.  Instead, they should do the following, which provides a definition for IANA Domain Name, which is otherwise not defined:

IANA Trademark: The trademarks set forth on Exhibit A, together with the registrations therefor, all common law and other rights in such trademarks, and all goodwill accruing from the use thereof, throughout the world; the list in Exhibit A may be amended from time to time by mutual agreement of the IETF Trust and the Operational Communities.

IANA Domain Name: The Internet domain names set forth on Exhibit A, collectively or individually as the context may require; the list in Exhibit A may be amended from time to time by mutual agreement of the IETF Trust and the Operational Communities.

IANA Intellectual Property: The IANA Trademark and the IANA Domain Name.

In 3.1, I am very concerned about: "However, the IETF Trust recognizes that, solely with respect to its stewarship of the IANA Intellectual Property, it acts under the oversight of the Operational Communities and is accountable to those Operational ?Communities. Further, the IETF Trust recognizes that the IANA Intellectual Property is held by the IETF Trust solely for the purpose of being licensed to the IANA Operator(s) selected by, under the oversight of and accountable to the Operational Communities.”  As I have already stated on this list, the CCG is not an oversight body.

Also in 3.1, I suggest adding a few words to a sentence that the CWG did not change much: "Finally, the IETF Trust recognizes the interest of the Operational Communities in ensuring a reliable and robust Internet names, Internet numbers, and Internet protocol parameters functions. 

I like the change that was proposed for 3.2a and 3.2b.

In 3.2c, please change “Protocol Service” to “Protocol Parameter Service”.

In 3.2d(i), additional words are needed to appropriately constrain the "shall act in a manner consistent with the advice of the CCG”.  At a minimum, it needs to be constrained to advice in IANA Intellectual Property, and nothing else.

Also in 3.2d(i), requiring written approval of potential license agreements goes too far.  As written, if ICANN wanted to host and IETF meeting again, the IETF Trust could not authorize the IETF Logo to be put on a t-shirt without CCG written approval.

Also in 3.2d(i), I do not think this clause should say anything about mediation.  And, if we do, the cost should be paid by the Operational Communities and the IANA Operator.

Also in 3.2d(i), in the last sentence, change “reasonable discretion” back to “sole discretion”.

Drop 3.2d(ii).  I think that this test will be divisive among the operational communities.

I like the change to 3.2d(iii).

In 3.2e, what does “shall coordinate communicating” mean?  It seems really vague to me.

I think that 3.2g is in conflict with 3.2d.  I read 3.2g to mean that the IETF Trust cannot dispose of these assets, ever.  I read 3.2d to mean that the Operational Communities can direct the IETF Trust to transfer them to a new home.

I think 3.3 has the same conflict with 3.2g.

I think 5.2 has the same conflict with 3.2g.

I do not think it is acceptable that 3.4 requires the IETF Trust to “seek new registrations” based on CCG instructions.  The old language was much better.

I think that 3.5 goes too far, but I have no problem with the addition of: "IETF Trust shall at all times act consistently with its obligations to the Operational Communities as steward of the IANA Intellectual Property.”  Also, this seems like an odd place in the document to make such a commitment.

Also in 3.5, do we really want to talk about how the damages and recoveries will be divided?  I think it should be deleted.  At any rate, it seems to conflict with 6.2.

I do not understand the phrase added to the end of 4(d).  It seems to mean that the Operational Community cannot be held liable for the actions of the IANA Operator that they select.  Is that right?  If so, why does it belong in this document?

I have no problem with the removal of the section on Publicity.  It seems that someone is going to have to make some noise whenever these agreements are signed.


LICENSE AGREEMENT

I think the definitions should align with my suggestions regarding the Community Agreement.

In 3.1, I think we need to remove exclusive.  Each operational community can pick a different operator, so there could be three operators that need access to iana.org.  If we leave this as it is, then a new agreement will be needed if any of the operational communities makes a change.

in 3.4, it seems like ICANN wants to sublicense to PTI.  Based on the text in the Community Agreement, I expected the IETF Trust to give PTI a license directly.  It seems too easy to lose control if both are possible.

In 4.3, do we really need to talk about how the damages and recoveries will be divided?

Also in 4.3, I have the same concerns about this text as in the Community Agreement.

In 4.4, I have the same concerns about the Operational Communities being able to expand the scope without limit.

In 6.3, I have the same concerns regarding arbitration as I do with the Community Agreement.

In 6.4, we should remove the sublicense stuff.  Let’s have all licenses be given by the IETF Trust directly.

In 8.1, we should stick to Virginia, that is where the IETF Trust lives.

I have no problem with the removal of the section on Publicity.

Russ


On Jul 26, 2016, at 8:24 PM, Hofheimer, Joshua T. <jhofheimer@sidley.com> wrote:

Thank you to all the participants on the IANA-IPR call earlier today.  Attached please find comments by the CWG to the IANA IPR License and the Community Agreement, clean and marked to show changes from the originals forwarded to CWG.  Please do not hesitate to contact us with any questions and we look forward to our discussion next week.
 
Best regards,
Josh
 
JOSHUA T. HOFHEIMER
Partner

SIDLEY AUSTIN LLP
+1 650 565 7561 (PA direct)
+1 213 896 6061 (LA direct)
+1 323 708 2405 (Cell)
jhofheimer@sidley.com
www.sidley.com

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