Please see below for some specific responses to Brian's concerns.
On Sat, Aug 3, 2013 at 1:49 AM, Chris Griffiths <cgriffiths@xxxxxxxxx> wrote:
On Aug 1, 2013, at 10:59 PM, Brian E Carpenter <brian.e.carpenter@xxxxxxxxx> wrote:
Hi Brian,
I recognize that this was a very hard-won piece of text and agree we should put a much higher threshold in order to update it. Based on review of some recent items with legal counsel, we were advised that there were some sections that would need to be updated in order to deal with some recent requests and we felt we would ask the community for feedback if we had enough justification to make changes.
> Re the Trust's plenary slides (I was not in Berlin):
>
> I have an allergy to modifying the Trust Agreement unless there's an
> overwhelming reason to do so. It was a very hard-won piece of text.
Indeed, I was also part of that original negotiating team in 2005 and have recently spent a great deal of time reviewing the records of that negotiation.
>> Issue #1
>> We have recently been asked permission to
>> republish the TAO with a creative commons
>> license, but unfortunately the current trust
>> agreement does not give the trustees the
>> rights to do this
>
> It doesn't? You have the right to license "existing and future
> intellectual property" according to clause 2.1 of the Trust Agreement.
> Is there some particular property of the CC license that causes a
> problem?
Brian - the restriction is contained in Section 9.5 which, as you may recall, was added quite late in the negotiation. It reads as follows:
9.5 Licenses. The Trust (acting through the Trustees) shall have the right to grant licenses
for the use of the Trust Assets on such terms, subject to Section 7.1, as the Trustees deem
appropriate; provided, however, that the Trust shall not grant any license that would be
deemed a transfer of ownership or abandonment of any Trust Assets under applicable law.
Specifically, any license granted by the Trust for the use of the Trust Assets consisting ofiPR
other than rights in IETF standards-related documents (such as RFCs, Internet Drafts and the
like) that have been acquired by the Trust through non-exclusive licenses granted by their
contributors pursuant to the IETF community-approved procedures currently set forth in RFC
3978, and any community-approved updates and revisions thereto, shall include provisions
stating that (a) the licensee agrees to grant and assign to the Trust all right, title, and interest it
may have or claim in any derivative works of licensee that are based on or incorporate the
IPR, and (b) the licensee's use of the IPR and any goodwill associated therewith shall inure to
the benefit of the Trust.
The last sentence of this clause makes the Trust is quite limited in its ability to grant licenses to IPR other than standards-related documents. That is, it cannot grant licenses to non-standards IPR unless the requirements of sub-clauses (a) and (b) are met. If you recall, the original negotiating position of CNRI was that the Trust have NO right whatsoever to grant licenses to non-standards IPR. We requested the exceptions in clauses (a) and (b) to address planned tools development by paid and volunteer contractors. Those exceptions were negotiated and allowed, and now the only way that the Trust can grant licenses to non-standards IPR is if the licensee agrees to grant the Trust ownership of any derivative works of the IPR. Such a requirement is normal and appropriate when dealing with contractor-developed tools and other software. However, it does NOT work in the case of something like the Tao, which is non-standards track, but not a commissioned software tool. In particular, the requirement that derivative works be assigned to the Trust is not consistent with the CC-BY license that the Tao team has requested. Thus, in order to allow this and similar requests, which the Trustees feel is in the interest of the IETF community, a relaxation of the restrictions in Section 9.5 has been suggested.
>> Issue #2
>> We cannot currently accept physical assets
>> like hardware donations into the trust
>> Once accepted into the trust, we would be unable
>> to dispose of these items in the future if they are
>> identified as no longer being needed
>
> It was definitely intended that the Trust would only handle
> intellectual property, and that ISOC on behalf of IASA would handle
> money and material property. Why change this?
>
> (I'm not quite sure why the Trust Agreement included the words
> "and other property" in the first place. It was there from a very
> early draft and was never discussed, as far as I can tell from my
> 2005 email archive.)
As you point out, the Trust does have the ability to accept property other than IPR. This point is not being debated. You may recall that CNRI wanted the Trust to be able to raise funds to support itself, and to accept monetary donations. That is not a path that the Trust has gone down, but in 2005 it was unclear what the eventual operating mode would be.
>> Issue #3
>> Once a domain name or trademark is
>> registered by the trust, it cannot be
>> abandoned even if it is no longer needed
>> We must maintain these in perpetuity
>
> IANAL, but it isn't clear to me that clause 9.4 forces you to do this.
> It requires you to "take reasonable steps" and to file applications "as
> the Trustees deem necessary in order to maintain and protect the Trust
> Assets." If you decide (and minute) that it isn't reasonable or necessary
> to maintain veryolddomainname.org, where's the crime?
Brian - the relevant restriction in contained in Section 7.1(a): "the Trustees shall not, and shall not have the right or power to, (i) exchange, distribute, assign, sell, transfer, renounce, or convey the Trust Assets, (ii) terminate the Trust Assets' registration,"
These restrictions, intended to prevent the Trustees from improperly dissipating the Trust's assets, now prevent the Trust from engaging in transactions that would help to conserve its funds (provided by ISOC) and the community overall. As noted before, there are trademark registrations being maintained that are no longer necessary (i.e., the IETF SECRETARIAT mark, which is duplicative of, and a subset of, the broader IETF mark). These marks cost money to maintain, both in terms of official maintenance fees and attorney fees (not paid to me, by the way!) However, because under 7.1.a.ii the Trust can't terminate the registration of any Trust Assets, we're stuck with these unnecessary registrations.
The same applies to physical assets: historical documents that could be donated to a museum, networking equipment that a company wants to donate and have the Trust re-donate to worthy causes. None of these are possible because the Trust can't "sell, transfer, renounce or convey the Trust Assets".