Hi Patrice,
Just FYI --
The Internet Society currently holds a liability insurance policy that covers the IETF Chair, IESG members, IAB members, NomCom members, WG chairs (and maybe others that I am forgetting). This insurance is intended to protect IETF leaders and decisions makers from the personal liability associated with their IETF activities.
Margaret
At 10:34 AM -0500 11/2/04, Patrice Lyons wrote:
Brian,
While this shouldn't be viewed as legal advice on the issue, it is my understanding that, in general, members of an unincorporated association (and participants in IETF activities may be viewed as "members") will have personal liability for the authorized debts and actions of the association. In Virginia, state statutes permit an unincorporated association to become a "limited liability company" by filing articles of organization, maintaining a registered agent in the State, paying certain fees, and meeting certain other requirements. If it were to do so, IETF could limit the usual personal liability of its members. But in the absence of some such liability-limiting legal structure, the general personal liability principles would apply.
Regards,
Patrice ----- Original Message ----- From: "Brian E Carpenter" <brc@xxxxxxxxxxxxxx> To: "Patrice Lyons" <palyons@xxxxxxx> Cc: <ietf@xxxxxxxx> Sent: Monday, October 25, 2004 7:49 AM Subject: Re: I-D ACTION:draft-lyons-proposed-changes-statement-01.txt
Patrice,
I don't want to argue law with a lawyer :-)
However, in my experience on a couple of non-profit Boards, and in reviewing some experience of a family member in a completely different unincorporated association in the UK, I thought I understood that both fiduciary responsibility and potential for conflict of interest can only arise in a budget-holding organization. The IETF isn't one of those - it has delegated its budgets elsewhere.
Brian
Patrice Lyons wrote:Brian,
What corporate (or for that matter unincorporated body) are you talking about here? Even if the IETF remains an unincorporated entity, it should retain the fiduciary responsiblity for overseeing its activities going forward. Incorporation wouldn't change this basic obligation.
Regards,
Patrice ----- Original Message ----- From: "Brian E Carpenter" <brc@xxxxxxxxxxxxxx> To: "Patrice Lyons" <palyons@xxxxxxx> Cc: <ietf@xxxxxxxx> Sent: Thursday, October 21, 2004 4:41 PM Subject: Re: I-D ACTION:draft-lyons-proposed-changes-statement-01.txt
Patrice,
I'm extracting here soem of your comments to Joel and some of those to Margaret, because I think there is a single underlying point to be discussed:
Patrice Lyons wrote: ... > While there are many reasons why
incorporation of an association is desirable, one important reason for a
technical association like IETF to incorporate is the substantial increase
in exposure to potential liabilities arising from conflicting patent claims
that has arisen over the last few years. In this context, there has been
some talk of donation recently of patents for IETF, particularly a group
of patents, for IETF purposes at little or no cost.
What happens if a group of pooled patents is donated to IETF by the very
organization that also controls funding for the IETF? What happens if such
an organization is under no direct control by the IETF and takes steps that
embroil the IETF in patent litigation?
...
Second, you raised a question about ISOC. While my comments didn't single
out ISOC, if ISOC is viewed as a fundraising entity or an actual source of
funds for the IETF, and is also the organization charged with hiring an
Administrative Director for the IETF and supervising his/her efforts such
as contracting with third parties for IETF support services, I would again
assert: where are the checks and balances.
...
Apart from the provision of routine IETF support services, fundraising for
the IETF is a potential source of conflict of interest. To minimize the
possibility that a contributor of funds for IETF purposes might be perceived
as having an undue influence on IETF standards setting work, I have proposed
that a new, separately incorporated and independent entity called the IETF
Foundation be established to manage the IETF fundraising activities.
...
In any event, the IETF retains the fiduciary obligation to supervise and
control any support services provided to the IETF by third parties,
including any possible new administrative entity that may be established
to serve the IETF community. While supervisory responsibility for certain
support services (whether under contract or simply volunteer) may be
delegated by the IETF to others, the obligation to provide general oversight
for such activities resides ultimately with the IETF leadership, in
particular the IESG.
Now we agree that the IETF *is* an unincorporated association, and there was very strong consensus in earlier discussions that we don't want to change its fundamental nature and its open door policy. If that is granted, then the leadership (i.e. the IESG and IAB) are as far as I can see under no formal responsibility whatever - there's just a social contract in place (and if that breaks down, we can all go home anyway). So the *fiduciary* responsibility for supervision and control and for integrity in fund raising and fund disbursement *has* to lie with a body corporate in some jurisdiction. That body can join the IETF social contract by agreeing to accept policy and technical direction form the IETF leadership, but that doesn't move the legal responsibility. And that being so, I just don't see the conflict of interest - if the body disburses funds for purposes other than what they were collected for, or breaks its social contract with the IETF, that's a breach of responsibility, but that can happen in any scenario whatever.
Patent donations don't affect this - a patent is an asset and so it's really just like more money. Some poison pill would be needed to ensure that the patent can never be misused, but again I don't see conflict of interest.
I just don't see how any of this argues for more than one body corporate.
Brian
_______________________________________________ Ietf@xxxxxxxx https://www1.ietf.org/mailman/listinfo/ietf
_______________________________________________ Ietf@xxxxxxxx https://www1.ietf.org/mailman/listinfo/ietf