Re: [Ianaplan] [CWG-Stewardship] ICG request concerning IANA trademark and iana.org domain name

[Andrew Sullivan <[e-mail]>]

On Sun, Jun 21, 2015 at 08:50:13AM +1200, Brian E Carpenter wrote:
> sensibly about the TM. What we seem to be discussing now is a future in
> which the TM holder doesn't behave sensibly.

Yes.  And in the case where the TM holder doesn't behave sensibly,
some of us think that we're hosed no matter what, so we might as well
not negotiate over that issue.

As usual, speaking only for myself, here are the possible things I can
see:

1.  We maintain our current position, which is that we stand mute
about who holds the various intellecutal property (keeping in mind, as
some people familiar with trademark law keep pointing out on this and
other lists, that the trademark may be limited in who can hold it).

2.  We adopt a position that some or all intellectual property must be
disposed of in this or that way.  If that position is inconsistent
with some other community (and since CRISP and CWG aren't aligned,
there is bound to be some inconsistency), then that inconsistency must
be solved by the relevant communities (according to ICG rules).  That
means we have to come to mutual agreement, and that requires negotiation.

Now, to me, if we're going to start negotiating with someone, I think
we have to consider what we are willing to bargain away and what we
gain by that.  I have argued repeatedly that the gains are pretty
thin.  Others have argued that the gains are greater than I believe.
I'm not sure how we'd resolve that disagreement, but I think the test
for whether something is a meaningful gain is the extent to which it
protects the IETF-specified registries and our freedom of movement in
how we administer those.  As I've argued, I also think that the test
needs to be how things work in the bad cases, where a split happens
and it is disputed.  I think wherever there is any kind of dispute,
the problem is that the IETF loses its freedom to act as long as the
dispute persists.  Therefore, IMO, all such cases reduce to "emergency
transition".  If you don't think that conclusion follows, you will
probably not agree with my analysis in general.

So, assuming that's the state of affairs with gains, what is it that
we'd bargain away to get a gain?  The trouble that I have here is that
I can't think of anything.  We've said repeatedly that we are
satisfied with the existing IETF-ICANN arrangements for IANA.  I think
that's right.  Yet my impression is that the WG's consensus was that
we must have post-transition essentially what we have going in.  If
that's correct, then there's nothing we're willing to give up.  Now,
some people think that we can just issue whatever demands we want, and
that will force others to bow to our demand.  Others want the
transition to happen, and if we pick something we really want and hold
up the transition on that basis, then (the argument goes) we'll get
it.  I respond that this approach is risky.  It increases the
possibility either that the transition could fail, or that we would be
revealed to be bargaining for something we don't want that badly.  In
other words, we could walk away without our desired outcome, or we
could be revealed as bargaining in poor faith.

To me, then, there is a trade-off.  If the disposition of various bits
of intellectual property got us a big advantage, then perhaps a risky
bargaining position would be worth adopting.  But I'm failing to see
that big advantage, so I continue to believe that we should not ask
for something we don't really want.

Anyway, that's the thinking behind my view.  It's not, as Dave Crocker
suggested elsewhere, that I'm saying, "Don't worry, be happy."  I'm
instead saying, "Worry a lot, because our freedom of movement is
constrained by these external issues.  Getting the transition complete
is desirable to solve that."

Best regards,

A (for myself, as ever)

-- 
Andrew Sullivan
[e-mail]