Subject: Re: [Ianaplan] control and negotiation (was Re: draft-ietf-ianaplan-icg-response-02 working group last call)
From: Miles Fidelman <[email-masked]>
To: [email-masked]
Date: Wed, 05 Nov 2014 19:11:28 -0500
List-Id: IANA Plan <ianaplan.ietf.org>

'Andrew Sullivan' wrote:
> On Wed, Nov 05, 2014 at 10:07:15PM +0000, Milton L Mueller wrote:
>
>>> And by my reckoning, there is as yet no consensus to ask for
>>> iana.org or the IANA trademark.
>> There is certainly a preponderance of opinion that we should. Failing to ask for it certainly has no consensus.
> "Preponderance of opinion" is not the way the IETF works.  We work by
> rough consensus, and it is possible in rough consensus for even one
> lone voice to derail the consensus, if the argument is strong.  See below.
>   
>> That's true enough, and a good point, so why is Miles's suggestion greeted with such panic?
> I'm not panicking.  Miles is suggesting that there's something
> _outside_ IETF processes -- the IAOC, some lawyers, the IAB, anything
> -- that is appropriately brought to bear here.  I argue that, on the
> contrary, there really _isn't_ anything outside the WG in IETF terms.
> So Miles says, "Well, IETF processes are inappropriate for this,
> because $some_authoritay_not_here."  I agree with him that there isn't
> some external Internet Boss who can decide.  I think that's a feature,
> not a bug.

No.. I'm NOT saying some Internet Boss outside the IETF.  I'm saying 
that processes for addressing technical issues are inadequate for 
dealing with issues that go beyond technical issues (kind of sounds like 
a tautology).

The IETF process for dealing with contracts is to delegate things to the 
IAOC, rather than deliberate them the way protocol issues are 
deliberated.  The IAB and IAOC are part of the IETF, but are not 
normally part of the technical process.  I'm suggesting that the process 
needs to expand it's scope and participation beyond the technical, to 
include parts of IETF that are not normally part of protocol 
standardization.  Nothing more.

>
>>   You're missing the point about confidence in standards. To continue
>> with the financial analogy, you are in effect saying, "we don't mind
>> if people issue counterfeit money, everyone knows where to get the
>> real stuff."
> No, I'm saying that is indeed a serious risk, and we ought to worry
> about it, but that meaningless shibboleths (viz. "the domain name
> where I got this") are not a protection.  If we think that there is a
> real problem with the legitimacy of data in the IETF registries, then
> we should sign the data.  (And in fact, I think we _should_ sign the
> data.  But that's not part of this transition, because it has nothing
> to do with outside people.)
>
>>   of people will be confused. And since the costs or downsides of
>>   controlling the domain and the trademark are negligible, why take
>>   that risk? Have you ever described one bad thing that would happen
>>   if this proposal calls for moving the trademark or the domain? I
>>   don't think you have.
> No, I have, but you reject the premise.  I have said that it forces us
> to negotiate with ICANN, potentially giving up something that we want
> instead of this.  You reject the idea that we'll have to negotiate
> over this, because NTIA will simply impose whatever we ask for.  In my
> opinion, that is a dangerous fantasy.  ICANN is also the source of the
> "names community" input to the ICG.  Just as we have the opportunity
> to comment on and express our views about the other communities'
> proposals where they don't fit with our understanding, the other
> communities will have a chance to do the same for us.  I just find it
> implausible that ICANN wouldn't care about this, but I believe that
> there are people busily trying to find out.  If I am wrong, I'll
> cheerfully withdraw my objection.

Personally, I agree that raising the issue, and stating a position may 
force us to negotiate with ICANN (and with other players).

I'll ask the question: why is that a problem, or something to be 
avoided?  Most contracts are negotiated.  The MoU, presumably, was 
negotiated.  The NTIA contract that is being replaced was negotiated.

Rather, I'd suggest that we acknowledge that there's going to be some 
issues that folks disagree on, and that some negotiation is going to be 
involved in getting to a consensus proposal to NTIA. And I'll state the 
opinion that it's better to identify and understand ALL the issues, not 
just the technical ones; to have a clear idea of what the IETF community 
believes to be desirable outcomes, in clear language (in this case, 
clear contractual language, rather than technical language and 
references to other documents), and to have some idea of how 
negotiations might go (which further suggests a distinction between 
desired outcomes and ideal language vs. minimally acceptable outcomes 
and language). That kind of suggests that IETF's lawyers and 
negotiators, as well as those in the community with such experience, be 
part of the drafting of the IETF proposal to the ICG.

Again, as a matter of personal opinion, I am concerned about how quick 
we have been to water down language, at least in some areas, to near 
meaningless - in what appears to be a fear of confrontation, or 
offending ICANN, or some such.  That's not a good way to go into a 
situation where negotiations and compromises will have to be made.

To the specific issues at hand, that of the iana.org trademark and 
domain registration:

1.If there's a good reason to believe that the transition, and 
post-transition world would be better served by having the iana.org 
trademark and domain registration in hands other than those of the iana 
functions contractor - better to be specific about that, and then hash 
out details with the multiple stakeholder communities as part of the 
upstream ICG process.  If we think the IETF Trust would be a good 
custodian, let's state that, and then see how other communities feel 
about the issue, and if they have counterproposals.

2. Regarding other intellectual property issues - someone (Richard, 
Martin?) just raised the issue of whether the public domain is the right 
model for IETF/registry data.  It strikes me that there are legitimate 
concerns about whether releasing data into the public domain allows for 
too little control, and potentially too much mischief re. how that data 
is used, copied, etc.  There are reasons why most open source software 
is released under a copyright license, not simply published into the 
public domain - it could well be that a carefully crafted copyright 
license (along the lines of GPL, or a Creative Commons license) might be 
more appropriate.  This is one where input from lawyers would be very 
appropriate.

In short, nobody in their right minds (IMHO) prepares a proposal without 
input from subject matter experts in all the relevant areas - why are we?

Miles

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