Subject: The Trust Agreement

From: Brian E Carpenter <[email-masked]>
Date: Fri, 02 Aug 2013 08:59:54 +1200

Hi,

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.

> 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?

> 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.)

> 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

---

From: John C Klensin <[email-masked]>
Date: Thu, 01 Aug 2013 22:23:24 -0400

FWIW, I share Brian's concern and reasoning about these
questions (and his allergy).   I might have a lower threshold of
necessity as a requirement for changing the agreement, but I'm
not convinced -- from either the slide or what I could hear of
the audio-- that it is necessary.

   john

--On Friday, August 02, 2013 08:59 +1200 Brian E Carpenter
<[email-masked]> wrote:

> 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.
>...

---

From: SM <[email-masked]>
Date: Fri, 02 Aug 2013 12:58:55 -0700

Hi Chris,
>Is there some particular property of the CC license that causes a

I was told during the JSON chartering that relicensing of the 
specification was not a problem.  I would appreciate some feedback on 
the questions from Brian Carpenter.

>to maintain veryolddomainname.org, where's the crime?

The IAOC decided to register a domain name.  It wasn't well-thought 
in my humble opinion.  Anyway, I don't see why there will ever be a 
need for a new domain.  As for trademarks, well, I don't see why the 
IETF needs more of them.

Regards,
-sm

---

From: Chris Griffiths <[email-masked]>
Date: Sat, 3 Aug 2013 08:56:54 +0200

On Aug 2, 2013, at 9:58 PM, SM <[email-masked]> wrote:

Hello SM,

> I was told during the JSON chartering that relicensing of the specification was not a problem.  I would appreciate some feedback on the questions from Brian Carpenter.

I just replied to Brian's email, and also requested that Jorge Contreras (CC'd) weigh in with his legal review on this matter.  Please let me know if you need any further details.

> The IAOC decided to register a domain name.  It wasn't well-thought in my humble opinion.  Anyway, I don't see why there will ever be a need for a new domain.  As for trademarks, well, I don't see why the IETF needs more of them.

While I cannot speculate if we will need to register new domains or trademarks, there are some that have already been registered that the trust must continue to maintain indefinitely that we would prefer to see lapse.  The current state of having to hold onto them indefinitely seems impractical and requires the trust to go through efforts to maintain these every few years when they are most likely not needed.

Thanks

Chris

---

From: SM <[email-masked]>
Date: Sat, 03 Aug 2013 03:14:31 -0700

Hi Chris,
At 23:56 02-08-2013, Chris Griffiths wrote:
>I just replied to Brian's email, and also requested that Jorge 
>Contreras (CC'd) weigh in with his legal review on this 
>matter.  Please let me know if you need any further details.

I'll wait for Jorge Contreras's comments.

>While I cannot speculate if we will need to register new domains or 
>trademarks, there are some that have already been registered that 
>the trust must continue to maintain indefinitely that we would 
>prefer to see lapse.  The current state of having to hold onto them 
>indefinitely seems impractical and requires the trust to go through 
>efforts to maintain these every few years when they are most likely not needed.

I guess that the problem is "must continue to maintain 
indefinitely".  My (uninformed) understanding is that the IETF Trust 
has to take reasonable steps to maintain the value of a thing.  It 
would be very difficult to claim that the IETF Trust has taken 
unreasonable steps in not maintaining a thing which does not have any value.

Regards,
-sm

---

From: Chris Griffiths <[email-masked]>
Date: Sat, 3 Aug 2013 08:49:45 +0200

On Aug 1, 2013, at 10:59 PM, Brian E Carpenter <[email-masked]> wrote:

Hi Brian,

> overwhelming reason to do so. It was a very hard-won piece of text.

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.  

> Is there some particular property of the CC license that causes a

Unfortunately based on review by counsel the answer is no, we don't under the current language.  I will ask that Jorge Contreras (legal counsel) send over the specific issues if that would help.

> early draft and was never discussed, as far as I can tell from my

Thank you for your background on this one.  Based on the review with the other trustees and legal counsel, we wanted to raise this one but it is not nearly as critical as Issue #1 or #3, and agree we have alternative methods that are used now which do include ISOC handling this for IASA.

> to maintain veryolddomainname.org, where's the crime?

I am also not a lawyer, but based on review with legal counsel, they assessed that the language did not allow the trust to perform the action of not maintaining a domain or trademark, and we must hold onto them indefinitely.  This doesn't seem very practical, but again we want to make sure the community gets a chance to voice their thoughts on this.

Thanks 

Chris

---

From: Chris Griffiths <[email-masked]>
Date: Sat, 3 Aug 2013 09:09:07 +0200

> the audio-- that it is necessary.

Thank you John for your feedback on this matter, it is appreciated.  The Trustees recognize that any changes to the trust agreement must have a very high threshold of review,  and that the community should provide guidance on if we should even undertake this work based on the issues presented.  I have asked that Jorge Contreras (legal counsel who reviewed these items) weigh in with his assessment.

Chris

---

From: Jorge Contreras <[email-masked]>
Date: Sat, 3 Aug 2013 06:50:21 -0500

Please see below for some specific responses to Brian's concerns.

On Sat, Aug 3, 2013 at 1:49 AM, Chris Griffiths <[email-masked]>wrote:

> 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.
>

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.

> > Is there some particular property of the CC license that causes a

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.

> > early draft and was never discussed, as far as I can tell from my

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.

> > 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".

---

From: "Adrian Farrel" <[email-masked]>
Date: Sat, 3 Aug 2013 12:58:04 +0100

Hi Chris,

> Unfortunately based on review by counsel the answer is no, we don't under the
> current language.  I will ask that Jorge Contreras (legal counsel) send over
the
> specific issues if that would help.

I recognise that the reason we pay an expert is to provide expert advice.

CC is *not* an alarming or scary thing. It is a license and is not a surrender
of assets.

If it would be helpful for the trust or Jorge to speak with CC direct, I am sure
they can use a web page and a telephone, but I would be happy to try to
facilitate if necessary.

I also wonder whether we have got caught by something in moving the Tao from an
I-D/RFC to a web page. The I-D/RFC republish requirements/license are easy and
allow someone to make and charge for a book containing RFCs etc. so long as they
comply with specific rules. It is (to me) much less clear whether the Tao can be
reproduced in full or part now that it is a Web page.
rust's mandate) and it would be very sad to let a set of trust issues block this
work.

Thanks,
Adrian

---

From: Brian E Carpenter <[email-masked]>
Date: Sun, 04 Aug 2013 14:10:29 +1200

Jorge,

Thanks for the careful explanations. My only quibble is whether the phrase
"other than rights in IETF standards-related documents (such as RFCs,
Internet Drafts and the like)" actually excludes the Tao, which is not
a standards document, but is very relevant to the standards process
and was an RFC in earlier forms. The web page version is clearly
a derivative work of the preceding RFC. However, I can see this being a
problem some time in the future, even if the Tao squeezed past.

For issues #1 and #3, I can see the case for a cautious procedure
for exceptions to the current restrictions. Clearly the Trust shouldn't
have blanket permission to abandon or dispose of assets (except if the
IETF itself winds up, which I believe is already covered).

As for the physical property issue #2 I can see that there's an
inconsistency but (IMHO) we need to be sure that any change is fully
consistent with BCP 101. To be specific, RFC 4371 says:

   A Trust ("the IETF Trust") has been formed for the purpose of
   acquiring, holding, maintaining, and licensing certain existing and
   future intellectual property and other property used in connection
   with the administration of the IETF.

If we are picky, we'd need to slightly modfiy that sentence if
the Trust has the right to abandon or dispose of assets.

Regards
   Brian

---

From: John C Klensin <[email-masked]>
Date: Mon, 05 Aug 2013 10:29:06 -0400

Jorge,

Given this explanation, I'm ok with seeing a specific proposal.
I think that proposal should reflect a minimum change model.  As
far as CC is concerned, I'm not persuaded that it meets out need
but not persuaded that it would cause great harm for
non-standards documents either.  I hope you and the IETF Trust
can continue to educate us as needed.

best,
   john

---

From: Paul Hoffman <[email-masked]>
Date: Mon, 5 Aug 2013 07:48:02 -0700

On Aug 5, 2013, at 7:29 AM, John C Klensin <[email-masked]> wrote:

> As
> non-standards documents either.

At the risk of opening up the paint cabinet inside the bike shed: what do you think meets our "need"? I ask this specifically about the Tao, the document that was brought up as a good use for the Creative Commons Attribution-ShareAlike ("BY-SA") license (see <http://creativecommons.org/licenses/>). That license seemed to meet the desire (not need) to make the Tao more easily distributed to a wider audience, in multiple languages, and thus open the IETF up to more people.

--Paul Hoffman