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

[Alissa Cooper <[e-mail]>]

Hi Richard,

On Nov 1, 2014, at 2:10 AM, Richard Hill <[e-mail]> wrote:

>> I’d like to pick up on one comment I made in my last review of
>> the document that did not get sufficiently addressed. It concerns
>> this text:
>> 
>> "To address concerns regarding appropriate contingencies to transition
>>   to another operator, the IAOC is asked to conclude a supplemental
>>   agreement that-
>>  ...
>> 
>>   2.  requires the transfer of any associated marks and identifiers to
>>       subsequent operators."
>> 
>> My problem with this is that one mark cannot be transferred to
>> two operators.
> 
> Any type of property, including intellectual property such as copyrights and
> trademarks, can be jointly owned by two or more legal entities (physical
> persons and/or legal persons).
> 
> Of course the "two operators"  would have to sort out and agree how they
> would share the mark in question, but that is their problem.

If the whole point of the above requirement is to increase the certainty that transitioning to new operator(s) would be smooth, then the fact that the sharing would have to be sorted out between the parties severely undercuts the rationale for the requirement in the first place. In particular, although none of these possible scenarios are very likely, the most likely ones all involve ICANN continuing to operate some of the functions, IMO. Under that assumption, what you’re saying is that the transition plan must require ICANN to transfer its marks and identifiers to a subsequent operator, but if the situation arises where ICANN were to share the IANA operations responsibilities with another operator, then the transition plan is mute on the topic and the two operators can work things out any way they like. This makes little sense and it strikes me that it puts the protocol parameters in a much worse situation than if the current contractor is obligated to cooperate with subsequent operators to minimize confusion (or ensure backwards compatibility, in Eliot’s words). Either of those standards puts the obligation on ICANN to achieve the desired outcome, rather than to use a particular means which may or may not achieve the desired outcome.

> 
>> This is why I think this
>> requirement should be stated as requiring “cooperation with
>> subsequent operators to minimize confusion" associated with marks
>> and identifiers, or some similar language that provides a
>> safeguard in the event of transition but does not mandate
>> specific transfer actions related to marks and identifiers.
> 
> You seem to be reopening this issue.

There has been no consensus called on this issue, so I don’t see why you would accuse me of “re-opening” an issue that is already open. The amount of list traffic on this topic since Friday demonstrates fairly well that the issue is indeed still open and ripe for debate.

Alissa