Milton, On Sat, Jun 20, 2015 at 2:47 PM, Milton L Mueller <mueller@syr.edu> wrote:
Greg:
Here I am speaking as a CWG participant and not as an ICG member.
Let me call to your attention that the ICG letter asks CWG to “review the proposals from the protocol parameters and numbers communities” and then to “determine if it can adopt an approach taken by those communities.”
I note that the language you so kindly called to my attention goes on to say "and if not, work together with the protocol parameters and numbers communities to reconcile the incompatibilities that have been identified." There's no reason to work in silos.
I suggest that we start with that. Is there anything preventing the CWG from quickly and easily resolving the incompatibility by simply going along with the proposal to turn the trademarks over to the IETF Trust as requested? Frankly I don’t think there is. No one has argued that there is any problem or harm to the names community hat would come from adhering to the CRISP proposal.
I disagree. First, I don't think we should make this decision without appropriate analysis, which should still be relatively quick (although maybe not particularly easy). Second, our marching orders are to make changes only where they are justified and we need to provide a justification;"going along to get along" is not an appropriate justification. Third, and while I won't repeat what I said in prior emails, I put forward a number of problems that could lead to harm to the community -- for instance, we don't know if the IETF Trust is capable of exercising the quality control and approval rights, and policing and enforcement obligations, required of a trademark owner. In any event, that is a fact-based analysis, which is why I encouraged us to come to a common understanding of the facts before coming to any conclusions or for that matter, engaging in advocacy of any position.
I was interested in this part of your response:
I also think we as a community need to decide what our *desired* outcome would be (whatever the facts are, and whatever the law may be (as long we recognize that a trademark identifies where the goods and services come from)).
MM: This is a discussion that never happened the first time around. No one has ever explained how PTI or ICANN holding the trademarks accomplishes anything of value for the names community. On the contrary, it was pointed out by several people that the principle of separability is violated by having a specific IFO hold the trademark.
For the reasons I've already stated, I'm refraining from advocacy of any position. However, I think the concern about separability (which is the state of being capable of separating, not the act of separation) is misplaced. ICANN currently holds a variety of assets used in and necessary to the execution of the IANA Functions. Many of these may be transferred to PTI; others may be retained by ICANN. All of these need to be capable of being transferred to a new IFO (whether for one community or all); these are just a few assets on the list -- assets that are fairly easy and straightforward to transfer to the right party at the right time. Actually, transferring the marks (and domains) to the IETF Trust is more likely to have a negative effect on separability, since a trademark owner must approve (after due diligence, inspection and analysis, not just a rubberstamp) any new licensee or a transfer of any license; so, the IETF Trust would have to approve any transfer of the IFO, even one solely for names (or numbers). Greg
I suggest we put together an ad hoc team to deal with this.
MM: I would insist on being on this team.