Resending without most cc's, since the mail software blocked this for having too many recipients.

On Thu, Jul 28, 2016 at 6:59 PM, Greg Shatan gregshatanipc@gmail.com wrote:

Andrew,

A few brief replies inline.

Greg

On Thu, Jul 28, 2016 at 9:39 AM, Andrew Sullivan ajs@anvilwalrusden.com wrote:

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Hi Greg,

I am speaking for myself and _not_ for the Trust here. The Trust has not yet expressed a view of the position that the names community is taking, and I don't want anyone to mistake my remarks below as a position of the Trust. But I too was involved in the discussions that led to the Principal Terms and I think we may have different memories.

On Thu, Jul 28, 2016 at 04:33:09AM -0400, Greg Shatan wrote:

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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

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months, and these comments seem to ignore or contradict many aspects of that document, which formed the design and basis for preparing the

actual

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Community Agreement and License Agreement.

I agree that we want to be true to the Principal Terms, but I think we need to be very careful with attempting to rely too hard on that document, because it also makes perfectly clear that the Trust is the ultimate controller here and that it is not subject to the CCG.

I believe that the original drafts that were offered cleave to that principal, and that the position you are taking leans further toward empowering the CCG to direct the Trust in various ways. I also recall several occasions during the development of the Principal Terms in which you argued for a more formal or more supervisory role for the OCs -- a position that I and others then resisted as implying unacceptable modifications to the Trust Agreement or else to the way the Trust actually operates. It appears to me, if I may be quite frank, that you are attempting to reintroduce your position as part of the negotiations over this agreement. You're free to do that, but I am no more reconciled to that mode of working now than I was many months ago when we were hammering out the Principal Terms.

​My view is somewhat different. I think the first draft backed away from a number of aspects of the Principal Terms. I think the Principal Terms represented the balance and outcome of the discussions we all had about the relative roles of the Trust and the communities/CCG. The intent of t​he second draft was to move closer to the letter and concept of the Principal Terms. If there are places where we missed the mark as well, I'm sure we can correct for that together. I'll also say again that there are very few instances where the CCG actually directs the Trust; in almost all instances, the Trust takes the initiative subject to advice and approval (but not in all cases) from the CCG.

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I believe I was crystal clear all along that the Trust needed to retain its abolute and independent control over the marks and domain names, because the advice I have is that that is the only way that the Trustees can ensure their ability to perform their fiduciary duty.

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Speaking as someone on the pointy end of that duty, I feel the

responsibility quite strongly. I believe that the Principal Terms say

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that the Trust holds the ultimate authority, and I do not believe that the draft you have circulated is quite as faithful to those Terms as you suggest. The Terms were always ambiguous on this matter, however, because we knew this was where the trouble was going to be.

​I think what we need to do here is strike the right balance between the CCG and the Trust. I would say that we're not there yet, and that the answer lies somewhere between the two drafts, so that we carry out the intentions of the Principal Terms and the plans that preceded it, while respecting the concerns of all parties.

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This is why many months ago I was pressing for us to move on to actual drafting, rather than polishing the Terms document until it was shiny. We chose not to do that, and now we have this problem.

I'm confident that with good will all around we can come to an agreement in time. But to me, that agreement should not vest too much responsibility or authority in the CCG. The normal mode of operation of the IETF is to create bodies that do such work as is absolutely necessary, and no more. I think it's a good approach, and I think we should design an agreement here that encourages and maximises collaboration and minimises formal approval and authority.

​I also think we can get this done, and that there should not be "too much" authority vested in the CCG/communities. But neither should there be too little. I like the idea of encouraging and maximizing collaboration and minimizing formal approval and authority. The more we can avoid hierarchy -- in either direction -- the better. But collaboration requires some shared responsibility and authority and the right balance between the parties. That is the key.​

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Best regards,

A

-- Andrew Sullivan ajs@anvilwalrusden.com