[Iana-ipr] IANA IPR Agreements

Hofheimer, Joshua T. jhofheimer at sidley.com
Wed Sep 21 05:07:51 CEST 2016


Jorge – I have not yet had the opportunity to consult with Greg, Jonathan and Lise, but I raise one question that the conditions subsequent to effectiveness – at least for CWG -- are different than what is set forth in the Names Function Agreement.  Specifically, the difference is as follows:

In the drafts sent per the email below, the language inserts in each of the documents an effective date based on the IETF-ICANN SLA:

       i.          This Agreement will become effective on the date (“Effective Date”) that the IANA functions contract between NTIA and ICANN ends or is terminated, provided that date occurs before January 1, 2017.  If such ending or termination has not occurred by January 1, 2017, this Agreement shall automatically terminate without further action of the Parties.  Except as provided in the preceding sentence, no Party shall have the right to revoke or terminate this Agreement prior to the Effective Date.

The above is different from the Effective Date in the NFA and Services Agreement:

      ii.          This Agreement 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.
I am not sure that any of these agreements should become effective without the inclusion of clause (b), namely ICANN’s acceptance by its Board of its responsibilities  associated with the transition.  Perhaps ICANN staff might weigh in on this as well.  If as a practical matter, termination of the NTIA agreement would never occur without ICANN’s acceptance of its new role, then maybe this is ok.
The sunset provision is less troubling, and we have no objection to that statement.
Thanks,
Josh
Joshua Hofheimer
Sidley Austin LLP
jhofheimer at sidley.com
(213) 896-6061 (LA direct)
(650) 565-7561 (Palo Alto direct)
(323) 708-2405 (cell)

From: iana-ipr-bounces at nro.net [mailto:iana-ipr-bounces at nro.net] On Behalf Of Jorge Contreras
Sent: Monday, September 19, 2016 9:22 PM
To: iana-ipr at nro.net
Subject: [Iana-ipr] IANA IPR Agreements

All,

As promised, I have attached revised versions of the Assignment Agreement, Community Agreement and the three License Agreements, redlined to show changes made since the last drafts.

Mostly I have inserted names and addresses and the definition of IANA Names Services provided on today’s call.

With respect to effectiveness,  we consulted the IETF-ICANN SLA, which contains the following language:

"This agreement is effective as of 1 October 2016 unless the IANA agreement between NTIA and ICANN has not ended or terminated, and then it will become effective at that time, so long as such event occurs within three months of that date.”

This provides for a deferred effectiveness, with a 3-month sunset period.

To adapt this for the IANA IPR Agreements, I have proposed the following:

1.  Preamble:  delete the definition “Effective Date”

2.  Definitions Section:  Change Definition of Effective Date to reference Section x (new paragraph in the Miscellaneous section) rather than the Preamble.

3.  Add new Section x “Effectiveness.  This Agreement will become effective on the date (“Effective Date”) that the IANA functions contract between NTIA and ICANN ends or is terminated, provided that date occurs before January 1, 2017.  If such ending or termination has not occurred by January 1, 2017, this Agreement shall automatically terminate without further action of the Parties.  Except as provided in the preceding sentence, no Party shall have the right to revoke or terminate this Agreement prior to the Effective Date.

Please let me know if you have any questions or corrections in any of these agreements.  Once the wording is agreed, I can generate clean, executable documents.

Best regards,
Jorge

Jorge L. Contreras
Contreras Legal Strategy LLC
1711 Massachusetts Ave. NW, No. 710
Washington, DC 20036
contreraslegal at att.net<mailto:contreraslegal at att.net>

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