Re: Supervision under previous admin relationships (was Re: RFC Series Editor (RSE) Statement of Work)

[John C Klensin <[e-mail]>]

--On Thursday, August 1, 2019 18:55 -0400 Michael StJohns
<[e-mail]> wrote:

>...
> So you're basically saying that what was in 4071 didn't
> reflect the actual legal landscape.  E.g. the authorities
> granted to the IAOC to manage/control/evaluate the IAD didn't
> really exist and there wasn't actually a formal agreement with
> ISOC to allow for the setting of performance goals or even
> hiring and firing?
> 
> And I seem to remember in one of the message chains a comment
> that the 6635 language that said "evaluate the RSE" got short
> shrift from ISOC as well?  So, from the ISOC's point of view,
> as the contract owner, at least part of 6635 did not reflect
> the actual legal landscape - correct?

Michael,

Independent of the substance of Andrew's reply --which I think
is more relevant than this note going forward -- I think we (the
IETF and its penumbra) actually have a considerable history of
documents that read as charters or legal requirements that are
actually no better than aspirational statements of general
intent.  They include various group charters that have not been
the result of formal EITF consensus calls even if the community
was asked for comment, IPR policies that depend on assertions of
copyright ownership that various of us have been told by
competent specialist lawyers would never told up and patent
policies that don't have explicit agreement of relevant/
controlling parties, at least one procedural MOU that a party
that was then required to sign off on to make it valid wasn't
consulted about, and probably a few others.  We've dealt with a
few other issues by just ignoring them and hoping that problems
would not arise (and, so far, they haven't).    For many of
those issues, the IETF's assertion that everyone is
participating as an individual independent of any employer
affiliations when people are attending with employer support and
employment contracts that effectively say otherwise is a
particular source of vunerability (something we've been
repeatedly told by at least the previous generation of IETF
legal counsel).   IANAL, but my understanding is that as long as
everyone behaves to a reasonable approximations of good faith
and does not specifically challenge them, such aspirational
statements and guidelines are just fine.   

If there were specific challenges involving real lawyers and
specific claims of damage being caused by how we do business,
things could get far too interesting.

The transition to the IETF LLC arrangement probably helps, or
will evolve to help, with some of those issues but is irrelevant
to others.  It may actually complicate yet a few others,
including posing choices between higher overhead costs and
higher-risk or more complex arrangements in some cases.   As one
example from earlier in this set of threads, the question of
"should X be an employee or a contractor?", especially if we are
using more than 50% of X's time, can be a matter requiring
skills HR and employment law advice that is sensitive to
jurisdictional issues.  For an organization the size that ISOC
is now, that is a necessary overhead expense that is spread
across the organization.  If ISOC is willing to lend their
sources of that advice without charging the IETF LLC, that is
clearly a win.  But, should some future ISOC administration take
the position that the IETF wanted to be a semi-independent and
disregarded entity and therefore that such issues are the IETF
LLC's problem, we, and the LLC Board members at that time, could
be faced with more constraints on choices than we would probably
consider ideal.

If we don't like or want to accept that situation going forward,
I suggest that we have a great deal of housecleaning to do, an
activity that would go far beyond the current RSE issues...
perhaps to the point that we would consider them far from the
greatest of the problems that would need cleaning up.

That is not legal advice or even an attempt at a summary of
legal issues.  Anyone who accepts in in lieu of either is likely
to get what they paid for or somewhat less.  It is, perhaps, an
over-long restatement and application of the old principles
about free lunches and about the difficulties of doing business
with one's head in the sand.

best,
    john