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

[Milton L Mueller <[e-mail]>]

Andrew, this is still a substantive debate, so I hope others arent' tiring of our interaction. See below:

> -----Original Message-----
> 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

I think it's naïve to think that the risk is impossibly small, especially when the cost of finding out via an 'experiment' forced on the IETF at a moment of crisis would be quite large. I think that point has been made before, so let's move on.

> 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.

Whoa. It is completely invalid to call a final ICG proposal that was developed by the entire community, is endorsed consensually by all 3 operational communities, has survived one or more public comment periods, and is accepted by the NTIA  - as a kind of extortion, especially when ICANN itself was fully represented in the development of the proposal and had the ability to publicly comment on it. 

You need to get a grip on the reality of this process; it is highly public, highly political, the whole world is watching, etc., etc. The idea that ICANN could undermine a consensus ICG proposal by bargaining with IETF and ask for nasty things IETF did not want to give them just lacks basic plausibility. I think you'd better give up on that line of argumentation.
 
> 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.

You're saying "do nothing to avert an obvious problem" in order to avoid an "unnamed and undescribed threat." I'm not buying that. I repeat: tell us what you think the threat is, or might be, or stop making that claim.

> 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.

The controversy is not about whether that is ICANN's preference. The controversy is about the extent to which ICANN is able to unilaterally dictate the terms of the transition. Lots of things are going to happen in the next two years that do not conform to ICANN's first preference. ICANN itself knows and accepts that, and if you want proof just look at the difference between what ICANN first proposed for the ICG process (briefly, a steering committee appointed by the CEO and GAC chair and whose output needed to be endorsed by the board) and what we ended up with (a coordinating committee appointed directly by community entities whose output does not have to be endorsed by the board). How did that happen? Whose first-born daughter was sacrificed as a result?

> 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

And that's good, I am glad we agree on that. 

> I'm not opposed to that at all, since it appears to be something they've already
> agreed to.

There is no documentation or proof of that agreement. The I-D is too weak, it does not specifically mention the domain or the trademark. That means that in the event of a disagreement or rupture, we are have needlessly created all the conditions for a costly legal wrangle. 

> 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.

Please, stop the amateur lawyering. There is an official trademark registry and here it is. 
http://tmsearch.uspto.gov/bin/showfield?f=doc&state=4805:o861h2.2.7 

The owner of the IANA tm is ICANN. This is not a debatable fact. Raising the red herring of legislative action makes it appear as if you are pulling out all the stops to create FUD about a simple, feasible request. Can you tell us any more about why you don't want that to happen?