Re: [Ianaplan] who or what is the proper authority to control the IANA domain and the trademark?

[Miles Fidelman <[e-mail]>]

Peterson, Jon wrote:
>
>> Milton L Mueller wrote:
> </snip>
>>> I do not see how any reasonable person can maintain that the fate of
>>> the IANA domain and mark are not relevant to the IANA transition. Any
>>> adequate IANA transition plan has to deal with both those issue.
> The fate (future ownership, etc) of the IANA domain and mark are essential
> to the IANA transition. They just aren't essential to the question of how
> the IETF uses the IANA. The IETF ICG response is about how the IETF uses
> IANA and what the IETF needs from IANA going forward. Other stakeholders
> will be providing other perspectives. The ICG should combine and consider
> these as appropriate.
>
>>> My position is simple: the IANA domain and mark should be associated
>>> with whatever entity is running the IANA functions. And if ICANN¹s
>>> performance of those functions is contingent upon IETF approval, as it
>>> should be, those resources have to be movable. I have not heard a
>>> single argument against this. I have only heard: ³we don¹t want to
>>> deal with this.
> Speaking as someone with no skin in that game, it sounds reasonable that
> the IANA domain and mark should be associated with whatever entity is
> running the IANA function, sure. In fact it sounds platitudinous. I don't
> however think that ICANN's performance of the IANA function overall is
> contingent on the IETF's approval, and it probably shouldn't be. Only the
> operation of the protocol parameter registries is covered by our agreement
> with ICANN for IANA (RFC2860). The other aspects of IANA's performance
> probably shouldn't be monitored or evaluated by the IETF, as we don't
> operationally interact with them.

Where that gets trickiest is if, at some point in the future, we end up 
with different entities performing different pieces of the IANA 
functions.  Then who holds the marks and domain?

I'm starting to think about this as akin to writing a journal article.  
Sometimes the author retains copyright, and grants rights to the journal 
to publish it; sometimes rights are transferred to the publisher.  In 
general, it's to an author's advantage to retain copyright ownership - 
makes it a lot easier to publish in other forms, change publishers, and 
so forth.  Seems to me IETF, and the other IANA users, should be 
thinking of ourselves as authors, and ICANN/whomever as the publisher of 
the moment.  But that's me.


>
> Should the protocol parameter registry be movable? Of course it should.
> And we have the power to move that resource any time we want, irrespective
> of the portability of domain names and trademarks. I don't want our
> flexibility to be limited by getting us all tangled up in obligations
> about trademarks.
>
>>> As I understand your position, it is that ICANN should be the entity
>>> that holds them perpetually. You have not said this directly, but the
>>> argument ³the fate of the marks and the domain doesn¹t matter² is, de
>>> facto, an argument that ICANN is the proper entity to hold them in
>>> perpetuity because that is who holds them now. Please explain to us
>>> why ICANN should be given a permanent property right in those
>>> resources when it does not and should not have a permanent,
>>> inalienable right to run the IANA functions.
> I doubt it would be possible, or appropriate, to gauge IETF consensus on
> the question of whether or not a corporation should own a perpetual right
> to a trademark. The scope of the IETF and its expertise are more narrow
> than you seem to think. No one here is likely to defend the proposition
> that ICANN or any other entity should have a permanent property right. But
> we are not the right organization to take a stand on this kind of
> question. Surely other organization participating the ICG process are in a
> better position to provide this feedback than us.

Perhaps a silly question, but what other organization(s)?  If not the 
IETF, and in parallel the other IANA stakeholders, then whom?

and.. as a final note, it occurs to me to mention that, while this is 
taking up an inordinate amount of time, I'm reminded that, for an awful 
lot of proposals that I've been involved with, intellectual property 
rights clauses almost always took the most time to pin down (and maybe 
liquidated damages clauses).

Cheers,

Miles Fidelman


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