January 2016 - CWG-Stewardship

Agenda for meeting #75 on Thursday 21 January at 16:00 UTC
by Grace Abuhamad Jan. 19, 2016

Jan. 19, 2016

Dear all, Here below is the agenda for the meeting on Thursday 21 January at 16:00 UTC: > 1. Opening Remarks > > > > 2. Implementation Update > > > > 3. IANA IPR > > > > 4. CCWG-Accountability > > > > 5. ICANN Bylaws relating to CWG-Stewardship > > > > 6. AOB > > > > 7. Closing Remarks In reference to item #5, please see the attached document which includes a list of responses by DT-leads. Staff has been instructed to clean up the document and provide some draft responses in time for the Thursday call. Best, Grace

1 0

FW: IPR follow up
by Jonathan Robinson Jan. 14, 2016

Jan. 14, 2016

Please see below for draft principal terms as provided by Jari Arkko. Note that this draft was provided as an example that "could apply to other parties as well as the IETF Trust, are in no way set in stone, but hopefully they give some indication of the kind of arrangements that could be done." -- Example Principal Terms of Intellectual Property Agreements This draft relates to a possible use of IETF Trust as an independent entity to hold IANA-related IPR. The IETF Trust is one of the discussed alternative holders of IPR. This non-binding draft has been prepared in order to assist in discussion only. No offer to enter into a binding agreement is expressed or implied herein. The IETF Trust has provided this draft as a hopefully helpful initial contribution, but clearly discussion in the various communities and further work is needed. Comments are appreciated. A. Background The ICG proposal indicates that the IANA trademark and iana.org <http://iana.org> domain should be transferred to an entity independent of the IANA Numbering Services Operator. The IETF Trust would be a potentially acceptable candidate for this role, and the Trust has discussed the implications of assuming this responsibility. The following is some background of the Trust's position and an overview of how the role and responsibilities may be fulfilled. While this fulfillment is a part of implementation rather than the ICG proposal, the IETF Trust wants to ensure progress on determining those implementation steps. The Trust is of course only one of the possible ways to satisfy the requirements from the ICG proposal. Nevertheless, the Trust wanted to start by suggesting an overall framework for one way of satisfying the requirements. The IETF Trust is a Virginia USA private trust, the trustees of which are the members of the IETF Administrative Oversight Committee (IAOC), and the beneficiary of which is the IETF community. The purpose of the IETF Trust includes acquiring, holding, maintaining and licensing certain existing and future intellectual property and other property used in connection with the Internet standards process and its administration, for the advancement of the science and technology associated with the Internet and related technology. B. Framework The Trust believes it would need to enter into three different types of agreements to effect the transfer of the IANA intellectual property (IP) and to enter into licensing arrangements with the IANA service provider(s). These agreements include: 1. An Agreement between ICANN and the IETF Trust transferring the IANA IP to the IETF Trust 2. Community Assurance Agreements between the IETF Trust and each of the names, numbers, and protocol communities (the IANA communities) regarding the Trust's commitments to each as further described below, and 3. Agreement(s) whereby the IETF Trust provides for the use of the iana.org <http://iana.org> domain, or a subdomain, and licenses the use of the IANA trademarks to the IANA service provider(s) selected by the IANA communities. The Trust understands that each community would need to follow its own internal processes before entering into any agreements, or selecting an IANA service provider. The same is true of the Trust itself. The Community Assurance Agreements with the IANA communities would establish and recognize the responsibilities for each community to identify and enter into agreement with their selected service provider, and for the IETF Trust to provide, update, and revoke licenses as needed to support these selections. In order to preserve the value and integrity of the IANA trademarks, the IETF Trust would maintain, license and monitor the use of the trademarks. Trust actions would include enforcement against unauthorized users and monitoring the quality and uses by the licensed user(s). The Trust would work with the relevant IANA communities to address issues involving a licensee before taking action to maintain the quality of the trademarks. C. Terms The following contains examples of the principal terms that may need to be included in such agreements should the community desire for the IETF Trust to take on the role of the Independent Entity. This non-binding draft has been prepared in order to assist in discussion only. No offer to enter into a binding agreement is expressed or implied herein. C.1. IP Transfer Agreement (between ICANN and IETF Trust) a. When requested by the IETF Trust, ICANN will transfer and assign all of its rights in and to the IANA IP, including all goodwill therein, to the IETF Trust (the "Transfer"). The IETF Trust will not assume any obligations or liabilities of ICANN that arose prior to the Transfer. b. ICANN will file all necessary assignment documentation with all local, national and regional offices in which the IANA IP is registered including, without limitation, the U.S. Patent and Trademark Office and the registrar for iana.org <http://iana.org> (GoDaddy), and will pay all fees associated with such filings. With respect to iana.org <http://iana.org> and any other domain names within the IANA IP, the IETF Trust will be designated as the administrative contact with the registrar. c. ICANN will make customary representations and warranties to the IETF Trust regarding title to the IANA IP, absence of actual or threatened litigation, the existence of any licenses or other encumbrances on the IANA IP, and non-infringement of third party rights, all qualified by the knowledge of ICANN's in-house legal department. d. ICANN will indemnify the IETF Trust, PTI and any future licensee of the IANA IP against any liability associated with use of the IANA IP prior to the Transfer Date. The IETF Trust will indemnify ICANN and any prior licensee of the IANA IP against any liability associated with use of the IANA IP after the Transfer Date to the extent that IETF Trust receives a comparable indemnity from PTI or its successor entity. C.2. Community Assurance Agreement (between IETF Trust, IETF, RIRs, and the names community) a. This Agreement will ensure that the IETF Trust holds and licenses the IANA IP in a manner that is agreed with the IETF, RIRs and the names community. b. For purposes of this Agreement, the RIRs, the IETF and the names community will each select a single Representative to be the point of contact with the IETF Trust on matters pertaining to the IANA IP, collectively the "IANA IP Reps". c. The IETF Trust will hold, maintain and renew the IANA IP in accordance with good IP management practices and shall seek new territorial registrations based on the IANA IP as instructed by the IANA IP Reps. d. The IETF Trust will license the IANA IP to PTI and any successor provider(s) of the IANA functions identified by the IANA IP Reps. Such license shall include the provisions described in Part III below. The IETF Trust will terminate the license to PTI or any successor upon the instructions of the IANA IP Reps. C.3. IANA IP License Agreement (between IETF Trust and PTI) a. The IETF Trust will grant PTI a non-exclusive, worldwide, royalty-free license, without the right to sublicense, to display and reproduce the IANA marks in connection with its provision and marketing of the IANA functions. b. All use of the IANA marks shall be in accordance with mutually-agreed quality requirements, as well as size, color, placement and similar guidelines to be agreed. c. The IETF Trust will authorize PTI to operate via the iana.org <http://iana.org> domain and any number of sub-domains. IETF Trust shall appoint PTI as the technical contact for the iana.org <http://iana.org> domain during the term of the agreement. PTI shall use iana.org <http://iana.org> and all associated subdomains exclusively for purposes of offering the IANA functions. d. All goodwill arising from use of the IANA IP will inure to the benefit of the IETF Trust, and PTI will not register or reserve any mark that contains, is identical or confusingly similar to any IANA mark in any jurisdiction, whether as a trademark, service mark, trade name or domain name. e. The IETF Trust will have the sole right to enforce the IANA marks against infringers, at its expense. PTI will use reasonable efforts to notify IETF Trust of any such infringement that comes to its attention. IETF Trust will be entitled to retain all damages received as a result of its enforcement of the IANA marks. f. The IETF Trust will be entitled to terminate the agreement, without penalty, following a material breach by PTI which is not cured within 30 days following notice thereof, an insolvency or bankruptcy event by PTI, the involvement of PTI or any of its officers or directors in any criminal, civil or regulatory proceeding or investigation that is likely, in IETF Trust's opinion, to tarnish the IANA marks or the reputation of IETF, the termination, expiration or non-renewal of the PTI Service Agreement(s), or upon the express instruction of the IANA IP Reps. g. Upon termination of the agreement, PTI will immediately cease all use of the IANA IP and shall transfer technical control of the iana.org <http://iana.org> domain to the IETF Trust.

7 17

Notes, Recordings, Transcript CWG IANA Meeting #74 - 12 January 2016
by Brenda Brewer Jan. 12, 2016

Jan. 12, 2016

Dear all, The notes, recordings and transcripts for the CWG IANA Meeting #74 on 12 January 2016 will be available here: https://community.icann.org/x/V4xlAw A copy of the notes and action items may be found below. Kind regards, Brenda Action Items Action item: Does anyone object or feel strongly differently about the provisional conclusion that there is no need for structural neutrality which would require the creation of a new trust? Action item: Cross-Operational Coordinating Group to refine DT-IPR work based on the provisional conclusion and report back to the CWG-Stewardship. Action item: Discuss within Cross-Operational Coordination Group whether the mailing list can become publicly archived. Action item: Suzanne Woolf to inform the ICANN Board on the status of this discussion. Action item: Share proposed responses to questions with CWG-Stewardship and Sidley for review Action item: Review remaining questions that were not assigned to specific DT and determine how to respond Notes Audio only: Eduardo Diaz, Alan Greenberg 1. Opening Remarks * Packed agenda, so need to stick to time * Desire to make progress on IPR issue in order to catch up with other operational communities * Update on latest work of the CCWG-Accountability as it relates to the interdepencies * DT-Leads have made progress on Bylaw related questions - may need to be picked up on list and forthcoming call depending on time available * CRISP Team members will be joining the call to provide input on IANA IPR discussion 2. Implementation Update * See slides presented during the meeting (see also <https://community.icann.org/x/V4xlAw> https://community.icann.org/x/V4xlAw) * Members of RZERC are chairman of ICANN Board, member of RSSAC, SSAC, rep from IETF, senior IANA manager, RySG rep, ccTLD rep, ASO rep and Root Zone Maintainer (see specification in CWG-Proposal) * Implementation update will be regular item on future calls 3. IANA IPR * Original proposal was silent on this issue and expected to be dealt with as part of implementation * CRISP Proposal suggested that IETF Trust would take on IPR - CWG-Stewardship asked to confirm its view on this proposal * Design Team formed to review and discuss - output was shared prior to the previous meeting and briefly discussed * CWG-Stewardship Chairs have co-ordinated with other groups on progress being made * Timeliness of CWG-Stewardship is important - other communities are expecting a response (both other communities support the CRISP proposal) * DT-IPR Draft contains potential principles and requirements for owner of IANA Trademarks and Domain Names. DT-IPR didn't agree on single definition of 'neutral' (see principle 1) - two types identified structural neutrality and functional neutrality. * Progress needs to be made on some of the key decision points outlined in this document. Definition of neutrality is one of the critical questions that affects other questions outlined in the document. * Risk analysis is missing - what happens if everything falls apart? Least of concern will be trademark and domain names in the overall scheme of things. IETF is main group that has operational need for the domain name. * Neutrality discussions seems to imply that communities have opposite interests which is not in line with the reality. Is there any evidence / rationale for which the owner needs to be neutral to mediate between the other communities which may be at odds? * IPR solution needs to be in place by September in order for the transition to happen - need to decide which risk we are willing to take and what is practical. Transfer may not actually need to happen, but agreement on arrangement will need to be in place. View of ICANN Board may also be helpful. * Important to have free and full discussion around the topic to ensure that will of naming community is known. * Is too much time spent on this issue as path forward seems to have been identified that addresses concerns. IPR issue only becomes an issue when PTI fails to deliver service to the different communities. Higher priority should be given to the SLEs. * Focus should be on procedure to deal with rare cases of disputes. * Provisional conclusion that there is no need for structural neutrality which would require a new trust. Second reading of this topic expected for an upcoming meeting. * Are any further decision points needed or does the focus shift now to the practical arrangements? IETF Trust now becomes the only option - need to look specifically at how to set up relationships and review example terms provided by the IETF. Action item: Does anyone object or feel strongly differently about the provisional conclusion that there is no need for structural neutrality which would require the creation of a new trust? Action item: Cross-Operational Coordinating Group to refine DT-IPR work based on the provisional conclusion and report back to the CWG-Stewardship. Action item: Discuss within Cross-Operational Coordination Group whether the mailing list can become publicly archived. Action item: Suzanne Woolf to inform the ICANN Board on the status of this discussion. 4. CCWG-Accountability * Calls on a regular basis between CCWG-Accountability and CWG-Stewardship Chairs * Call earlier this week to discuss the status of the input provided by the CWG-Stewardship on the dependencies * Meeting twice a week for 3 hours, no current timeline for delivery of the final proposal by the ICANN Board. * New workplan shared on the mailing list, which includes work on the CWG-Stewardship input. * CCWG-Accountability Chairs will share feedback on discussion of dependencies and input received from CWG-Stewardship following first reading which will require discussion on the list in order to be able to provide input, if any, prior to the second reading. Update will also be provided on the calls, but CWG-Stewardship will need to work proactively in order to not delay the CCWG-Accountability in its deliberations. 5. ICANN Bylaws relating to CWG * Sidley prepared a draft of the Bylaws resulting from the CWG-Stewardship proposal. A number of questions were identified which were referred to the relevant 3 sub-team leads. First drafts have been received from the sub-team leads - all contained in same document. * Avri (DT-N): reviewed all of the comments related to DT-N and shared first draft of responses with the DT-N mailing list. No major issues identified that required structural changes. * Chuck (DT-M): provided responses to questions relating to DT M and shared those with the DT. No feedback so far. Full feedback is now required from the CWG-Stewardship and Sidley. * Donna (DT-C): reviewed questions, but DT CSC only has one other remaining member left. Full review now required by CWG-Stewardship and Sidley. CWG-Stewardship should be able to review revised Bylaws to ensure these accurately reflect the responses provided. * Some further work may be needed on questions Action item: Share proposed responses to questions with CWG-Stewardship and Sidley for review Action item: Review remaining questions that were not assigned to specific DT and determine how to respond 6. AOB * Next meetings scheduled for Thursday 21 January and 4 February * Replacement of Staffan Jonson as ccNSO appointed member - ccNSO is in the process of selecting a substitute representative. Probably by the next meeting a replacement will be identified. * Currently no CWG-Stewardship meetings scheduled in Marrakech * No intention to let biweekly call schedule lull work on IPR into a slower pace * Prepare to get active on the mailing list 7. Closing Remarks * Next meeting scheduled for 21

3 2

Proposed Agenda for CWG IANA Meeting #74 | 12 January @ 16:00 UTC
by Brenda Brewer Jan. 12, 2016

Jan. 12, 2016

Dear all, Here is the Proposed Agenda for CWG IANA Meeting #74 <https://community.icann.org/x/V4xlAw> | 12 January 2016 @ 16:00 UTC. The CCWG Timeline is attached as a reference. 1. Opening Remarks 2. Implementation Update 3. IANA IPR 4. CCWG-Accountability 5. ICANN Bylaws relating to CWG 6. AOB 7. Closing Remarks Adobe Connect: <https://icann.adobeconnect.com/cwg-iana> https://icann.adobeconnect.com/cwg-iana Kind regards, Brenda

2 1

FW: The CRISP Team observation on IPR
by Jonathan Robinson Jan. 12, 2016

Jan. 12, 2016

This was sent back in August last year. Since it relates to the Sidley memo, only observations in relation to Scenario 3 remain relevant to current discussions. -----Original Message----- From: Izumi Okutani [mailto:izumi@nic.ad.jp] Sent: 17 August 2015 17:08 Subject: The CRISP Team observation on IPR Dear Jonathan and Lise, I'd appreciate it if you would help us share this with the CWG. As others have expressed in a seperate thread, it's great to see the CWG discussions are now moving towards consensus. Talk to you in a few hours. Thanks, Izumi & Nurani --- Dear CWG members, Attached is the CRISP Team observation on IPR. It is not fully brushed up nor articulate in terms of wording, as the CRISP Team wanted to deliver this to the CWG as early as possible, but all the points to be shared with the CWG are covered. We hope this serves as a reference in your discussions, and we would be happy to provide any additional information, clarifications needed for discussions in the CWG. Best Regards, Izumi Okutani, Nurani Nimpuno Chair, Vice-Chair, The CRISP Team

1 0

FW: [client com] IPR Memo
by Jonathan Robinson Jan. 12, 2016

Jan. 12, 2016

All, A reminder of the work that Sidley undertook on the IANA IPR issue. Of the three scenarios discussed by Sidley as follows: * ICANN maintains ownership of the IANA IPR, * PTI becomes the registered owner of the IANA IPR, and * An independent trust, such as the IETF Trust, becomes the registered owner of the IANA IPR. Only the third scenario remains under consideration by the CWG. It is discussed in detail on pages 5-7 of the attached. Thank-you, Jonathan From: Flanagan, Sharon [mailto:sflanagan@sidley.com] Sent: 05 August 2015 04:06 To: Client Committee <cwg-client(a)icann.org> Subject: [client com] IPR Memo Dear All, Attached is a memo on the IPR issue under the three ownership structures. Please let us know if you have any questions or would like to discuss. Best regards, Holly, Josh and Sharon SHARON FLANAGAN Partner Sidley Austin LLP +1.415.772.1271 sflanagan(a)sidley.com <mailto:sflanagan@sidley.com> **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. ****************************************************************************************************

2 1

Fwd: [DT-IPR] Answers to DT-IPR's IANA IPR Questions
by Greg Shatan Jan. 12, 2016

Jan. 12, 2016

All, The following email was received in response to questions asked by DT-IPR. I'm passing it on in connection with our upcoming discussions. Greg ---------- Forwarded message ---------- From: Trang Nguyen <trang.nguyen(a)icann.org> Date: Mon, Jan 11, 2016 at 3:51 PM Subject: [DT-IPR] Answers to DT-IPR's IANA IPR Questions To: "dt-ipr(a)icann.org" <dt-ipr(a)icann.org> Dear Greg and DT-IPR members: During one of the previous DT-IPR calls, five questions relating to IANA IPR were raised for ICANN staff. Please find below answers to these questions. If there is any additional information that we can provide to inform the discussion, please do not hesitate to let us know. 1. What is the cost to set up a trust (to house the IANA IPR) with the 3 operational communities as beneficiaries? The total costs to set up a trust and apply for 501c3 status is expected to be around $30-$50K. The most time-consuming part of the trust formation is expected to be the development of the terms of the trust, which is necessary whether the community decides to go with an existing or a new trust. The key terms being: - Identifying the trustee and trust directors, and the method of their selection; - Identifying the beneficiaries of the trust; - Listing the property to be held by the trust; - Describing purposes of the trust which will inform its administration and interpretation; - Listing the general and specific duties of the trustee and trust directors; - Establishing the governing law and venue for disputes; - Setting forth dispute resolution mechanisms; - Providing mechanisms for amendment of the trust instrument; and - Providing enforcement mechanisms of the trust. The operational communities will need to reach agreement upon the above terms for the trust instrument. Many of these items could be handled simply, such as processes for selection of trustees could borrow from the ICANN Board selection processes already in existence across ICANN, and the scope of the trust property (the IPR) has already been determined. The operational communities that will serve as the beneficiaries of the trust would need to be in agreement across all the terms. Notably, even if an existing trust were used to house the IANA IPR, specific terms for the treatment of new trust property (the IANA IPR) would still have to be developed to confirm that the beneficiaries are appropriately identified and agreeable to the terms of how the IPR will be held and maintained. Therefore, the most time consuming part of the process – the development of the terms of the trust to assure neutrality – would be present if the IPR went into an existing or a new trust. 2. How much time and effort would it take to set up such a Trust? See above 3. What are all of the IANA related trademarks that ICANN currently owns? “Internet Assigned Numbers Authority”, “IANA”, the IANA logo, and by extension the IANA domain names 4. Has ICANN licensed any of these trademarks? See below. 5. If yes, what quality control and enforcement has ICANN performed as owner of these trademarks? ICANN has licensed the use of many of its trademarks as appropriate, through the use of royalty-free licenses. ICANN has imposed style and usage guidelines to ensure the consistency of use of the marks internally and when licensed to other entities. ICANN has experienced IP counsel that assists ICANN in its efforts to maintain and enforce all of the marks. Warm regards, Trang _______________________________________________ dt-ipr mailing list dt-ipr(a)icann.org https://mm.icann.org/mailman/listinfo/dt-ipr

1 0

DT-IPR Draft Document
by Greg Shatan Jan. 12, 2016

Jan. 12, 2016

All, In anticipation of our call tomorrow (Tuesday), I attach a draft document from DT-IPR. These should be viewed as proposed or potential principles and requirements for the consideration of the CWG. In particular, there are several items where choices have been laid out for discussion by the CWG, which should lead to making choices on these alternatives. I look forward to our discussion. Greg

2 2

FW: CRISP Feedback on IPR principles (Re: SV: IPR follow up)
by Jonathan Robinson Jan. 8, 2016

Jan. 8, 2016

Please see attached for CRISP team feedback on DT-IPR principles.

1 0