All – since it appears that we will be discussing process on today’s conference call, I thought it would be useful to re-send Alissa’s nicely articulated response to this group from last Thursday.  She makes it clear that at least from the standpoint of IETF (and I can add the IETF Trust based on my personal involvement), the Principal Terms document that circulated among different parties for months was never agreed, never finalized, and should not be referred to as an “agreement” of any kind. I have highlighted relevant passages from that message below, as well as some language from Greg’s note to which she was responding.  In general, Greg’s insistence that objections should have been raised to the legalistic language that was inserted into later drafts of the Principal Terms (in part by him, a trained lawyer), when the other parties were not fully engaged with their legal counsel, is not useful in moving this discussion forward.

I participated in the last full meeting of the IETF Trust at which the Principal Terms were discussed.  The consensus from that meeting was to stop squabbling over the Principal Terms, which by then were garbled and self-contradictory in several places, and move directly to the definitive agreements.  This is what we did, and you now have the results before you.  It is clear that there are issues to discuss and resolve, but I would urge everyone to focus on those issues and their resolution, and not continue to engage in an unproductive finger pointing exercise about who previously agreed to what position when.

I look forward to speaking with you in a few hours.

Jorge


From: <iana-ipr-bounces@nro.net> on behalf of Alissa Cooper <alissa@cooperw.in>
Date: Thursday, July 28, 2016 at 4:12 PM
To: Greg Shatan <gregshatanipc@gmail.com>
Cc: "iana-ipr@nro.net" <iana-ipr@nro.net>, "Hofheimer, Joshua T." <jhofheimer@sidley.com>, "Resnick, Yael" <yresnick@sidley.com>, "Greeley, Amy E." <AGreeley@sidley.com>, "Gregory, Holly" <holly.gregory@sidley.com>, "Flanagan, Sharon" <sflanagan@sidley.com>, Client Committee <cwg-client@icann.org>, "Grapsas, Rebecca" <rebecca.grapsas@sidley.com>
Subject: Re: [Iana-ipr] CWG Comments to IANA IPR License and Community Agreement

Hi Greg,

Thanks for taking the time to respond.

My understanding is that the objective of the principal terms was to establish a direction for the agreements, but not that any party had agreed to incorporate specific words from the terms into the agreements themselves. Indeed, if the objective of the principal terms had been to establish contractual language, we could have skipped the development of the terms altogether and jumped right into the development of the contractual language, which is what we are doing now. 

Relatedly, if someone could point out the public posting of the final terms document, that would be helpful to ensure we’re all referencing the same version. I have been referencing <https://www.ietf.org/proceedings/95/slides/slides-95-ianaplan-0.pdf> as I can’t seem to find any reference point where all of the parties agreed that the terms document was settled. To my eye, both the first draft of the community agreement as circulated by the Trust and the edited version as circulated by the CWG are aligned with the spirit of the terms. So the space in which we need further discussion is actually not about discrepancies between the agreements and the terms, but between different ideas about how the terms can be fulfilled.

Now, as to the relationship between the CCG and the Trust, the CWG proposed the following language in 3.1:

"Accordingly, the IETF Trust agrees, as set forth below, to seek the advice and consent of the CCG with respect to all matters concerning the IANA Intellectual Property.”

So, this requires the Trust to seek the consent of the CCG about every matter relating to the IANA IPR. Interpreted strictly, this puts the CCG in control of the Trust’s actions related to the IANA IPR, because the Trust cannot take any action, no matter how trivial, without obtaining the consent of the CCG. Can the Trust send email to the IFO about the IPR without the CCG’s consent? Can the Trustees email each other about the IANA IPR without the CCG’s consent? Can the Trust renew the IANA domain registrations without CCG consent? If people wanted to interpret the edited provision in 3.1 strictly, I think they would have a basis to say no to all of these questions. And if that were the case, I imagine that the effectiveness of the Trust would be hamstrung, since it would essentially need to await the consensus of the CCG at every turn. This is why I wonder, if the intent is for the Trust to await the consent of the CCG on every matter, what the point of using the Trust is. The other sections I listed provide examples where approvals are required, but there is no limitation listed anywhere that I could find to draw a boundary around this consent provision in 3.1.

As to the notion of directing the Trust’s activities, I think it’s important to understand the nature of how the Trust operates. Trustees are volunteers who agree to commit their time to this task in service of the Internet. The work of the Trust is a part-time activity for which the nomcom every year works hard to find willing volunteers (via appointments to the IAOC and the IAB). Adding the IANA IPR responsibilities may increase that workload, although there is no practical reason why that increase should be substantial. However, under a scenario where the CCG requests volumes of new registrations in multiple different jurisdictions (3.4), together with the requirement for proactive politicing across all of those jurisdictions (3.5), the IANA-related work of the Trust could conceivably morph into a much more heavyweight set of duties. This could impact the Trust’s other responsibilities and the ability for the nomcom to find willing volunteers, and therefore the viability of the Trust itself. If the Trust was left with more discretion over its own activities than what the edited 3.4 allows, I think this would be less of a concern for the IETF community.

Regarding oversight and accountability, the CWG proposed the following language in 3.1:

"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.”

In the scenarios that I can imagine, it is not really feasible to hold a Trustee accountable and have that act effect only the IANA IPR-related duties for that Trustee. For example, if the names community were to seek the removal of a nomcom-appointed Trustee, clearly that would have an effect on all of that Trustee’s duties, not just the ones related to IANA IPR. Furthermore, any mechanisms the CWG suggests to exercise oversight over the Trust and to hold it accountable would have to be consistent with existing nominations and recall procedures for the IAOC.  Removing a nomcom-appointed Trustee, for example, would need to use the RFC 7437 procedures. As a result, I don’t know how to square the implications of this text with existing agreement in this group that the Trust will not be modified. Alternative or additional oversight and accountability procedures would necessarily need to obtain IETF consensus since they would affect the IETF Trustees.

Regards,
Alissa

On Jul 28, 2016, at 1:33 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:

Alissa and all,

My detailed responses are inline below.  In general, I disagree with these comments and also find them somewhat troubling.  The "Proposed Principal Terms ​of IANA Intellectual Property Agreements" document was worked out among representatives of all the communities and the IETF Trust over many months, and these comments seem to ignore or contradict many aspects of that document, which formed the design and basis for preparing the actual Community Agreement and License Agreement.  The revised drafts circulated by the CWG try to follow the "Principal Terms" in concept and spirit, as well as in the specifics.  A number of the sections cited as causing concern are faithful to and in some cases almost verbatim from sections of the Principal Terms.  I think the overall characterization of the relationship of the CCG and the Trust as one where the Trust in these comments is incorrect and overheated.  The IETF Trust, as steward of the IANA IPR, has certain duties and obligations to the CCG (as representative of the communities) and the relationship involves a level of oversight by and accountability to the CCG; however, under these agreements, it has the primary right to decide how to carry out its duties, consistent with certain standards set out in the agreements and subject to advice from and reasonable approvals by the CCG.  Although colorful, it is completely incorrect to paint a picture of the Trust as an "empty vessel" "subjugated" by the CWG to the will of an "independent power base" for which it is a mere "pass-through."  Appeals to rhetoric tend to be counterproductive, because they inflame the emotions without illuminating the issues and often (as here) mask the lack of substance in the underlying claims.  The detailed analysis below makes this quite clear.

We need to be moving toward the concepts in the Principal Terms, not away from them, if we are going to meet our deadlines.  That is the common basis we all developed.  I encourage a more constructive engagement with the current drafts of these Agreements, and hope that others will take that road.  This is an iterative process, but we can't iterate too many times.

Greg