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

[Miles Fidelman <[e-mail]>]

Andrew Sullivan wrote:
> On Mon, Nov 03, 2014 at 02:03:19PM -0800, Eliot Lear wrote:
>> How does that sound to you in principle?
> My objection to moving the relevant bits to the IETF Trust has never
> been one of principle.  It's been one of practicality: I don't see any
> incentive whatsoever for ICANN to give up that property without
> getting something in return, and I can't think of anything I want to
> give up more than iana.org in case there's more than one operator.
>
> Again, to be clear, I think that would be a very bad outcome.  I don't
> think it would be good to have to split the iana.org stuff, and I
> think we should avoid it.  But I think it is preposterous to imagine
> that ICANN is going to give away an asset just because we want it,
> without extracting some concession.  Therefore, it'd be fine to say to
> the IAOC, "Please ask for this."  But if they don't get it, what then?
>
> The burden of proof, IMO, is on those who claim that ICANN will simply
> have to give up control of that asset.  I've yet to see a good
> argument that they will, and I note it is somewhat unusual in the US
> for a government department to force a corporation to give up an asset
> without any compensation.

As far as the USG is concerned, ICANN is a contractor - nothing more, 
nothing less.  Generally, unless there are clear exceptions in law, 
regulation, or contract, work performed under contract is the property 
of the contractee (USG), not the contractor (ICANN).

By all rights, IMHO, iana.org should have been registered by either the 
USG, or SRI - back when John Postel was doing the work; and transferred 
to the USG when the work moved - with the USG delegating management to 
ICANN, as part of the contract.  Instead, ICANN unilaterally staked a 
claim to the domain, by registering it.

Yes, possession is nine 10ths of the law - but what we're talking about 
here is an oversight to be rectified, not an overstepping to be ratified.

Why NOT take the opportunity to at least attempt to fix this.  This is 
the best opportunity to do so, and perhaps the last that would not 
involve the potential for hostile litigation at some point down the line.

As to burden of proof re. whether or not ICANN will "simply give up 
control" - well.. seems to me that the best way to find out is to run 
the experiment.  Put it in our proposal, stand fast, and stand fast.  At 
the very least, it puts IETF in a stronger negotiating position for 
getting to compromise language.

Miles Fidelman

-- 
In theory, there is no difference between theory and practice.
In practice, there is.   .... Yogi Berra