(CC'ed to ALAC Chair Jonathan Zuck)

Dear Colleagues,

a moment ago, we discussed the "ALAC Letter to the IANA IPR CCG re Proposed Amendment to IETF IPMC Bylaws" in the weekly CPWG call that I co-Chaired with my colleague Avri Doria.

In the "IETF IPMC" (IETF Intellectual Property Management Corporation) of Agenda Item 4, which we had moved to the end, there were no objections to sending the letter to the ALAC for approval by the ALAC prior to it being sent to the IANA Community Coordination Group (CCG) co-Chairs.

The draft letter can be found on: https://docs.google.com/document/d/18BN-ki3BpGKyfCTjKb1PZ-bSnYyN-yb9nyWpTOgqQKg/edit?usp=sharing

As a co-chair of the CPWG, I did not intervene in the discussion as a participant. I participate to ease discussion and am open to all views, thus I do find it difficult to sometimes intervene, taking my Chair's hat on and off - and in this instance, the matter is serious enough that it warrants a written intervention instead - because it is based on facts that take more than 5 minutes to explain. It would have also introduced confusion and stress at the end of the call.

I would like, therefore, speaking on my own behalf now, object to two inter-related paragraphs:

"Accordingly, the ALAC supports the transfer of the IANA IPRs and the assignment of related licenses and other agreements from the IETF Trust to the IPMC. 

The ALAC notes that there are numerous other issues with these Bylaws as currently drafted, which have been brought to the attention of the IETF IPMC by the CCG or members of the CCG. While these issues do not need to be resolved prior to the completion of the transfer of the IANA IPRs and related agreements, the ALAC strongly encourages the IETF IPMC to amend the Bylaws to resolve these issues expeditiously after the completion of the transfer in order to ensure that the governance of the IETF IPMC under the Bylaws is as clear and unambiguous as possible."


At this point in time, I do NOT agree with the mention "While these issues do not need to be resolved prior to the completion of the transfer of the IANA IPRs and related agreements"

Whilst I felt that, a few months ago, there appeared to be progress in the addressing of the problems relating to the IETF IPMC Bylaws, many of which I pinpointed before anyone else had a look at them, I do not find, at the present time, that there has been enough progress whilst the two month IETF public comment is taking place, to address any of the "numerous other issues with these Bylaws".

I cannot quite place my finger on why this is taking so much time and why all people concerned with this process appear to find this to be a secondary matter that is not so important. If Bylaws have to be fixed, they have to be fixed, otherwise we potentially have an organisation with defective Bylaws or Bylaws containing loopholes. Are we, the ICANN Names Community, ready to have the IANA IPRs, transferred to such an organisation?

I hope not.

Off-line and directly with the people concerned, I have shared my concerns in relation to:

(a) the lack of proper IETF Trust minutes recording the agreeing/signing of the current IETF Trust Agreement. By itself, I do not see this as a show-stopper. (yes, formal records for agreeing the current Trust Agreement at the Trustee Meeting of 6 November 2018 are missing!)

(b) the lack of progress in all parties resolving the "numerous other issues with these Bylaws".

When our esteemed colleague Greg Shatan transmitted his analysis and recommendations for Bylaws changes, he differentiated the issues into two categories:
- in YELLOW the comments that discuss concerns from the perspective of the Names Community relating to oversight/accountability/powers/obligations of the IETF IPMC.
- in BLUE the comments that discuss changes made to improve the document from a legal perspective relating to appropriateness, enforceability, correctness and clarity, based on his perspective as a practising attorney since 1986.

I attach his document - "Comparison of revised Bylaws to current Bylaws-1.docx"

After discussion within the Community Coordination Group (CCG), the CCG sent a letter to the IETF Trust with its proposed Bylaws Changes. 

This resulted in a document that outlined the Proposed Amended Bylaws, which was used in the announcement of the Public Comment, as published on https://mailarchive.ietf.org/arch/msg/ietf-announce/SWYX5CDJciD6W9qNsxmNaK-suZg/

The proposed changes to the IETF IPMC Bylaws, as sent to the IETF Consultation by the CCG, are provided as a Redline document, which I attach in this email: "Oct25_Proposed_Amended_Bylaws_REDLINE.pdf"

Comparing Greg's initial comments to the amendments that were carried over, a number of substantial issues are not addressed in the current Bylaw amendment proposals being considered in the consultation.

I will focus on the few that I think that are important enough to make them conditional for issuing the green light to transferring the IANA IPR over to the IETF IPMC. 


A. Non Profit Status

Section 1.5 (b) currently mentions that the Directors will seek 501(a) status specifically 501(c)3 exemption from taxation. Greg proposed that this is improved to say that the organisation *is* a 501(c)3 organisation. This ties in with Section 1.5(c) whereas the current version of the Bylaws makes it conditional if the organisation obtain exemption, that no part of the net earning will go to the Directors etc. Greg suggests making this mandatory by adding "At all times" - which makes sense.


B. Definitions

Greg proposed that several terms relating to the whole Agreement, are formally defined in the "Definitions" section of the Agreement. This was ignored, thus some definitions happen on the fly in some sub-sections and sub-paragraphs. Ultimately this has less of an impact than some other matters, but it makes the Bylaws harder to read and easier to miss defining some specific terms. 

However, some current definitions are plainly wrong like:
 "IETF Administrative LLC" means the administrative arm of the IETF.

There is no "IETF Administrative LLC". (!)
There is an "IETF Administration LLC" which is the single-member LLC that provides the corporate legal home for the IETF, the IAB and the IRTF.  (Ref. https://www.ietf.org/administration/overview/ )


C. Wrong placement of a clause - an easy change?

Clause 3.3(c) is under clause 3.3 Nomination, Election and Term of Office of Directors. Greg suggested moving this to 3.4 Resignation and Removal. Since clause 3.3(c) speaks about removing a director, it makes sense to put it under 3.4 as 3.4(b).


D. Regular Meetings of the Board of Directors

The current clause 3.8 mentions that Regular meetings of the Board of Directors may be held without notice. Greg rightly proposes to fix this to mention how Directors will be notified of a Regular meeting. Holding a meeting without a notice does not make sense.


E. Fees and Expenses of Directors

In Section 3.14, Fees and Expenses of Directors, Greg proposes a straight forward: "No Director shall be entitled to compensation for his or her services as a Director of the IETF IPMC. " which he explains by the Bylaws currently being ambiguous since the Bylaws do prohibit compensation to Officers. This makes perfect sense.


F. Director Liability for Certain Act

Section 3.19 is headed "No Liability for Certain Act" and says: "No Director shall be responsible or liable for the acts or omissions of a custodian, agent, depositary, or counsel selected with reasonable care."
Greg proposed that the header should be "Director Liability" and that there should be a Duty of the Directors towards the Corporation - as part of essential accountability measures.
"(a)    Each Director is required, individually and collectively, to act in good faith, with reasonable and prudent care, and in the best interest of the IETF IPMC. If Directors act in good faith and in a manner that is reasonably in line with the best interests of the IETF IPMC, as determined by a reasonably prudent person in similar circumstances, then such Directors shall be immune from liability arising from official acts on behalf of the Corporation. "

And also add another Section that says:
"(c)    Directors who fail to comply with this section of the Bylaws may be personally liable to the IETF IPMC for any improper acts and as otherwise described in these Bylaws"

This would definitely raise the bar for Accountability, which is what everyone should wish for an organisation like the IETF IPMC that will  hold such important assets.


G. Limit as to the maximum contract value of Executed Contracts

Greg proposes adding a clause that says: "All contracts of $10,000 or more must be approved by the Board of Directors. " --- and this makes absolute sense - as Greg says "it is common to avoid fraud or just bad unilateral decisions".

He also proposes adding this clause to the Section 10.3:
"All payments of $10,000 or more must be approved by the Board of Directors, whether in a single instrument or in a series of instruments directed to the same or related persons."

Again, this makes sense.


Conclusion

I honestly do not understand why these were not included in the current round of Bylaw changes. If amending the Bylaws necessitates a full 60 day IETF consultation, why were these changes not included? If the current proposed amendments are agreed, the IETF will again need to restart a 60 day period when the next round of amendments will be proposed - what likelihood is there that any of the remaining issues will ever get fixed? Given the time it has taken to reach the current point, when there is a real pressure to complete the transfer, I am very concerned that we shall never see the other Bylaw improvements ever implemented if there is not a binding obligation for the other amendments to be effected within a certain period of time.


Given all of the above, I recommend forcefully that the paragraph I have mentioned above: ""While these issues do not need to be resolved prior to the completion of the transfer of the IANA IPRs and related agreements" is replaced with a paragraph that requests commitment from the IETF Trust and the IETF IPMC to address the other issues clearly explained by Greg, within a specific time period, for example within 3 months of the transfer of the IPR to the IPMC, or the transfer is voided.

I know this comes late, but we have to make sure we do not let mistakes happen that then take a lot more effort to fix later.

Again - all of the above views are my own.

Kindest regards,

Olivier Crépin-Leblond