Subject: Re: [Ianaplan] contract termination - loose ends?

From: Bernard Aboba <[email-masked]>
Date: Tue, 9 Sep 2014 17:26:03 -0700

Eric Burger said:

"Perhaps something similar to the replacement of the RFC Editor (not
to say that it wasn’t being performed well, rather that there was a
process established to change it).

It is also enumerated in the MoU. Non issue."

[BA] The ICANN-NTIA contract contains quite a few pages of text
relating to aspects of contract termination and succession.  This
includes sections relating to ownership of patents, IPR and
copyrights, as well as text relating to the transition to a successor
contractor, including a requirement for filing of a succession plan
(which ICANN was to have submitted to NTIA in April 2014).

Since the MOU doesn't cover these issues, it wasn't obvious to my
untrained legal eye whether all those pages of NTIA contract text
represented extraneous legalese that could be discarded with no ill
effect, or whether significant issues would arise in the event of
contract termination. For example, in reading through the NTIA
contract text, I did not note any mention of rights transfers to the
IETF, only text relating to USG or contractor rights.

Therefore I am curious as to whether any analysis has been done on
this, either by the IAOC (which owns contract negoitations under RFC
6220) or the IETF Trust (which presumably would deal with rights
issues).  As I recall at the BOF, these was some discussion relating
to transferring rights to the IETF Trust (and Steve Crocker indicated
that ICANN would cooperate with that), so at least at that time, it
seemed like there might be some loose ends to deal with.

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From: Brian E Carpenter <[email-masked]>
Date: Wed, 10 Sep 2014 14:27:08 +1200

> seemed like there might be some loose ends to deal with.

Yes, good point. For a transfer of IPR it isn't so much a contract as
two independent actions: ICANN offering to transfer rights, and the
IETF Trust accepting them. IANAL, but the IETF Trust Agreement clearly
indicates that it's within the Trust's rules to accept such a transfer
(section 5.2).

I think this point needs to go into the draft.

    Brian

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From: Bernard Aboba <[email-masked]>
Date: Tue, 9 Sep 2014 20:52:35 -0700

> I think this point needs to go into the draft.

[BA] I agree *something* needs to go in. But without a legal analysis, it isn't clear to me who might have what rights to transfer to the IETF Trust (e.g. USG or ICANN), or exactly what needs to occur to enable the transfer. I assume that the IETF-Trust folks can figure it out, though.