[Iana-ipr] CWG Comments to IANA IPR License and Community Agreement

Andrew Sullivan ajs at anvilwalrusden.com
Thu Jul 28 15:39:24 CEST 2016


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:

> 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.

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.

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.
Speaking as someone on the pointy end of that duty, I feel the
responsibility quite strongly.  I believe that the Principal Terms say
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.  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.

Best regards,

A

-- 
Andrew Sullivan
ajs at anvilwalrusden.com



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