Re: [Ianaplan] control and negotiation (was Re: draft-ietf-ianaplan-icg-response-02 working group last call)

['Andrew Sullivan' <[e-mail]>]

On Thu, Nov 06, 2014 at 06:08:02AM +0000, Milton L Mueller wrote:
> 
> I know that. Never said it was the way it works. I am simply pointing out to you that your view is far from commanding consensus. 
> 

Right.  "There's no consensus on the topic," is the way I usually
spell that.  Which is, IIRC, what I said in the first place.

> procedure. I saw him say that we shouldn't misconceive THIS process
> as being fundamentally about engineering. And he's right.

Obviously it's not abou engineering.  But the plain meaning of his
words is that we shouldn't use the same procedure we use for
engineering things for non-engineering things, and I disagree.

> Oh man. Do you know how much money has been spent by trademark litigants on those supposedly meaningless shibboleths called domain names that correspond to trademarks? 

I have a small bit of experience about that, yes.  And if you're a
trade mark litigant, you _have to_ spend that money, because your
lawyer told you that your trademark is being diluted, and that's a
problem.  And it could well be that, if you have a brand, people
magically type it into their URL bar and get to your home page, and so
someone else having control over that domain name is a problem.  (Of
course, nobody actually does this any more, and your "URL bar" hasn't
been exclusively for URLs in most browsers for about a billion years
in Internet time.  But never mind that.)  In any case, neither of
those is the problem we have.

The problem we supposedly have, but which proponents of declaring that
we have moral authority over IANA don't seem to want to analyse,
happens just in case there is a separation of the IANA functions and
it happens in an unfriendly manner.  Supposedly under those
circumstances, whoever then controls iana.org is going to set up a
competing protocol parameters registry, and sow confusion all over the
Internet by sending people to ports 35 and 344 instead of 53 and 443.
I claim that the risk of this is impossibly small, and that in the
case of such a dispute anyone who actually cares about protocol
parameters will learn pretty quickly how to get the IETF ones; or
else, that the IETF's legitimacy will be so poor by that point that it
will make no difference what we do because people will already be
using someone else's protocols.  (Given the amount of time we waste on
governance discussions, I'm betting on the latter long before any IANA
split.)  So yes, I believe that iana.org is a meaningless shibboleth.
I don't think that all domain names are, but for this particular
purpose it is one.

> I do think the NTIA is in a position to require ICANN to provide what the final proposal posits, if it wants the transition to happen. I also think the U.S. Congress, the EC and the rest of the world would not look favorably upon any attempt by ICANN to extort the IETF in some way, and that such disfavor could have severe consequences for ICANN as it moves into the second, "enhanced accountability" phase of the transition. 
> 

Yet you apparently believe that the IETF can extort ICANN, which is
what is actually being proposed: they have property, and some are
proposing that they have to give it to us without compensation.

> Not only have you never provided any evidence that anything like that will happen, you have never explained why, if it does, the IETF can't simply say, 'no' to any unreasonable positions. If you want to be credible, you might start by identifying the 'something we want' that ICANN would be in a position to force you to give up if the transition plan included a requirement that they turn over the trademark and the domain. 
> 

You put the burden of proof on the wrong side.  I'm saying, "Do
nothing," you're saying, "Do this," and then you want me to prove that
your proposal is actually going to cost something.  

> I think ICANN cares about this, but I think it cares more about making sure the transition happens and continuing to be the home of the IANA. 

Right.  And as part of "continuing to be the home of the IANA",
surely, it will be better for it if it controls the trademark.  I
cannot see how that is even a little bit controversial.

> I think most of the community, including ICANN, is coming to accept the position that if it wants to keep the IANA functions it has to be accountable, and that the most important form of maintaining accountability involves the ability to move the IANA functions provider to another entity. 

But we already have in the I-D the term that they have to agree to
move the IANA trademark to some other entity in the event the
functions move.  I'm not opposed to that at all, since it appears to
be something they've already agreed to.  But what people seem to want
is something else: that the trademark and iana.org domain name move to
the IETF Trust _even if_ the functions aren't moving.  I don't see any
reason to ask for that, and I don't see why ICANN should agree to it.

Moreover, as someone pointed out upthread, the trademark might have
been obtained as part of a function of a contract with the USG.  If
so, and the usual rules apply, then it may actually be the property of
the USG.  In that case, there's another problem: trasnferring USG
assets around requires legislative action.  I don't think we want to
open that possibility.

Regards,

A

-- 
Andrew Sullivan
[e-mail]