Many thanks for the in-depth response.
--On Wednesday, 26 January, 2005 10:12 +0100 Harald Tveit
Alvestrand <harald(_at_)alvestrand(_dot_)no> wrote:
(everything on which I think your response is completely
satisfactory snipped)
...
(2) During the brief, and (I believe necessarily) very
indirect, discussion of this plan at the Washington Plenary,
it seemed to be the plan that such a transfer would involve a
transfer of any and all CNRI IPR claims (past, present, or
future) that related to the IETF, its name, its work, etc.,
to the purchaser. The note says "All future intellectual
property will be unequivocally accessible to the IETF and the
community". Does that imply that this deal would leave some
past or present IPR issues unresolved?
This is called "wiggle room".... at the current state of
negotiations, it seems that CNRI intends to give Neustar
permission to use some IPR that relates to the IETF, but will
not transfer that IPR to Neustar. If it is transferred at all,
it will be transferred to an entity that the IETF or its
representative approves of. (Note: This is my interpretation
of CNRI's stance as of some time ago. I can give no guarantees
either that it was correct then or that it is still correct.)
Just to be sure I understand what you are saying above... To the
extent to which CNRI's beliefs about what it owns are valid and
enforceable, doesn't that situation effectively give CNRI, and
not the IETF or IASA, the choice, forever, over who operates the
secretariat? Patents at least expire. If we are not going to
walk away from whatever they are claiming rights to, has the
transition team considered whether deferring that dispute might
not make it worse? In particular, has the transition team
consulted with counsel as to whether Neustar's accepting CNRI's
"permission" to use that IPR on behalf of the IETF could be
construed as IETF acceptance of those claims, hence making
things more difficult later?
(Note(2): The statement above does not say anything about what
I believe that CNRI owns. Separate topic.)
However, once Neustar enters into a contract with the IAOC, I
believe that the contract will state that IPR created under
that contract will be unequivocally accessible to teh IETF and
the community. Neustar has said that this is something they
want to be clear, and are happy with.
Good. I assumed this from Leslie's note.
(3) Assuming Neustar acquires all of the putative CNRI IPR
rights in this deal, is the planned transfer when the
Neustar/Foretec "arrangement" (I notice that the note doesn't
say "contract") ends, or are they prepared to transfer all of
those claimed rights to the IETF/IASA/ISOC unconditionally and
as soon as they acquire them?
See above - Neustar has indicated that it will be happy to
transfer any rights that it acquires to IETF/IASA/ISOC as soon
as possible, but there are rights that it does not expect to
acquire.
(4) I'm listing this separately because it really isn't an IPR
issue as such, but... From time to time, there have been
suggestions that, if ISOC assumes any role in operating,
sponsoring, or overseeing the IETF Secretariat or related
functions, CRNI would sue them under the terms of an agreement
that CRNI believes was made some years ago. If Neustar, or
someone else, acquires of ownership, does CNRI intend to
irrevocably waive any rights it might have (or believe it has)
against ISOC, the IETF, or anyone else to operate or oversee
the secretariat or to determine who does operate the
secretariat? If they do not, where does that leave us with
regard to getting the IASA up and functioning as "an
IETF-controlled activity within the Internet Society"?
I'll leave the details of the ISOC/CNRI relation to Bob Kahn -
I still have not seen a statement that makes it clear exactly
what the issue is. The closest I have come is the statement
that "we had a firm verbal agreement", but exactly what the
terms of that agreement were, I cannot tell.
I understand. But if, as implied by his posting yesterday and
some prior comments, CNRI is likely to try to prevent the
establishment of an IASA within an ISOC framework (at least on
that has any authority vis-a-vis the secretariat), then the
claim that this deal accomplishes many of the goals of the BCP
is a little dubious, isn't it?
(5) The note indicates three other goals which this deal would
accomplish, namely:
o The IASA operation will be in place as an IETF-controlled
activity within the Internet Society
o There will be full financial transparency and
accountability
o There will be full management accountability
The first of these seems to be to be entirely between the IETF
community and ISOC, as documented in the draft BCP. It seems
to me that, at least modulo the issue raised in (4) above,
arrangements between CNRI, Neustar, or others are neither
necessary nor sufficient (or even contributory) for that to
occur. Do I misunderstand something about this, or are there
conditions and considerations in this arrangement (such as
concerns about the possible litigation referred to above that
the transition team (and/or IAB, IESG, or ISOC) have not told
the community about?
"Full financial transparency and accountability" and "full
management accountability" are principles, lacking operational
definitions. As I understand the BCP, part of the role that
the community is delegating to the IAD and IAOC (subject to a
greater or lesser amount of community review once they
generate proposals and drafts) was to translate those
principles into contractual language and to accept proposals
only from those who were willing to agree to them. Is a
Neustar/Foretec definition now to be substituted? A
Transition Team definition? And, if the answer to either of
those questions is "yes", what mechanism is anticipated for
community input and (pre-decision) review?
As the transition team understands it, IETF will establish the
IASA no matter what happens between CNRI and Neustar. If the
Neustar deal goes through, Neustar has said that it is happy
to write a contract with IASA that specifies the transparency
and accountability requirements that it enters into. While I
should be careful about predicting the outcome of negotiations
that haven't occured yet, Neustar seems very open to embedding
the kinds of principles that we are looking for.
I apologize for splitting hairs in what is probably just English
usage, but there is a huge difference between "happy to write a
contract with IANA" and "happy to agreed to an IASA-specified
contract". And of course, I don't know (and you presumably
don't know either) what conditions CNRI might attach to either
the deal or to those "permissions" that would constrain
Neustar's ability to agree to provisions the IAD/IAOC might
specify.
Until we have the contract in place, we will be in the same
situation as we are today: We are looking at, and discussing
with, a body that performs a secretariat function that helps
us get our work done, but the IETF has no formal control over
what that body does, and that body has no formal obligation to
the IETF. No change.....
And, as I pointed out in my earlier note, no change based on
whether the IETF reaches some long term agreement with Neustar
immediately or waits until the IASA can issue and RFP on which
Neustar can compete (with the obvious advantages over other
bidders of staff experience) as long as their agreement with
CNRI does not prevent that.
(7) The notion of a performance review _at the end of_ that
"limited period of time" is a variance with several of the
discussions that have been going on about the BCP in recent
days. Can it be brought into better alignment with whatever
the BCP discussions conclude?
I'm not sure what alignment mismatch you see - the BCP is
(deliberately) not terribly prescriptive on when performance
reviews occur.
Part of my understanding of the Sam-Avri-Mike-myself (and
others) discussions is that they are about who can induce
reviews --internal or external-- whether about specific
decisions, mechanisms for making decisions, or about performance
generally. And I have understood the BCP to suggest that the
IAOC will make decisions, with appropriate community input,
about what reviews are appropriate for each case and then write
those decisions into RFPs and contracts. By saying that a
performance review will occur at the end of the "limited period
of time" (i.e., the contract (?)), it seems to me that Leslie's
text/proposal preempts the responsibility of the IAOC to make
that decision.
I'm certain some evaluation will be continuous, but it seems
logical to do a "zero-based" performance review (ie don't just
look at "is it doing better than before" but "is it within
<delta> of the best we can achieve given our situation") as
the time draws near when the IASA has to decide what to do
next.
I'm concerned about a different case, which you have commented
about on several occasions, which is a secretariat that, for
whatever reason, becomes unresponsive to the needs of the IETF
(at least as perceived by the leadership). Good management
practice --and I believe that part of the purpose of the Admin
Reorg process was to get us closer to good management practices
-- would argue for detecting those problems early, having tools
for correcting them short of contract termination, and getting
them fixed. Mere "openness and transparency" is not enough for
accomplish that -- the organization and contract has to be
structured so that IAD can induce responsiveness. Nothing you
have said leads me to be convinced that the IAD/IAOC can
determine those contractual provisions as it believes
appropriate.
(9) When that hypothetical "open RFP" is issued, will the new
organization get any special status as a consequence of
incumbency? E.g., will the RFP (or evaluation process for
bids) permit them to claim some advantage on the basis of
familiarity with the IETF and its work, prior good deeds,
familiarity with custom-built tools, or similar experience?
While logic argues that they should --greater familiarity
should translate to improved efficiency and/or lower costs--
the effect could be similar to a permanent allocation to
Neustar/Foretec (unless they screw up), under conditions not
completely determined by the IASA, which might make many of
the efforts of the last few months somewhat irrelevant.
The organization will certainly be able to argue for lower
transition costs and a less steep learning curve. I believe
that it would be foolish not to allow them to make that
argument.
However, I (personally) think that there's value in flexible
thinking about where resources are allocated - for instance,
the transition team has briefly considered the option of
making "permanent institutional memory" in the form of
archives a separate task that is carried out outside the
present "secretariat" framework - since Carl's reports
indicate that this task may need a different skillset, and
different resources, than the secretariat currently has.
And the transition team has concluded that it is appropriate to
postpone that decision, and action on it, for some "limited
period of time" (the rumor is that we are talking about one or
more years, not week or months and it would be helpful if you
could confirm or deny that).
(10) I also wonder about the possible interactions between
this arrangement and the process of selecting an IAD. If
the basic IASA design stays in place, as the note indicates,
the IAD is responsible to the IASA and the IETF for the
performance of the Secretariat operator (or, more
specifically, for the standards-support and meetings
functions). Under the model as outlined in the draft BCP,
the IAD can presumably arrange the RFPs and contracts so as
to have adequate controls _in the judgment of whomever is the
IAD_ to make that level of responsibility feasible. If the
IAD doesn't have any control over what is in those contracts,
but still have responsibility for performance, isn't that
going to make it much more difficult for us to persuade
someone competent (and sane) to take that position? Do we
need to change the BCP to relax the IAD's responsibilities
for ensuring performance during the term of this
"arrangement"?
Or, more generally, if the IAD is expected to act merely as a
conduit for information between the IETF leadership and
Neustar/Foretec, is the job description correct (at least for
the duration of the Neustar arrangement) and does the job
really require a full-time person.
I believe the IAD should be negotiating those contracts, and
that these contracts should have adequate controls. And I
believe that this can EASILY consume a full-time employee.....
See Scott's note.
In conclusion - I believe the Neustar arrangement does not
lead to the need for changes to the BCP. We still need all the
BCP mechanisms.
See my previous note. It is my belief that, if the IAOC is to
consider a sole-source unsolicited proposal from Neustar,
without issuing an RFP and solicitation for competitive bids,
the BCP at least needs some modification to permit that
arrangement. I don't oppose such a modification, but I do
oppose asking the IAD or IAOC, as their (nearly) first official
acts, to violate the principles in the BCP as written.
john
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