|
Re: ASCII diff of ISOC-proposed changes to BCP
2005-02-10 17:26:02
Ted:
The suggestions ISOC made were pursuant to our lawyer's comments, so they
tend to have something to do with legalese. We are asking Skadden&Arps to
reply to your note. But let me interject...
At 09:56 AM 02/09/05 -0800, Ted Hardie wrote:
Some comments, using Harald's diff as a starting point.
ISOC has proposed this:
This document describes the structure of the IETF Administrative
Support Activity (IASA) as an IETF-managed activity housed within the
Internet Society (ISOC).
to replace this:
This document describes the structure of the IETF Administrative
Support Activity (IASA) as an IETF-controlled activity housed within
the Internet Society (ISOC) legal umbrella.
Speaking personally, I strongly prefer "controlled" to "managed", and I
believe that the formulations we've used up to now intended the "under
ISOC's wing" view that "IETF-controlled" implies. Changing it weakens a
formulation that is core to the community consensus that we've built over
time, and I don't think it is a good idea.
On this point, what we (IETF&ISOC) have been discussing is a variation on a
matrix management operation. ISOC provides the organization and
organizational support, while the IAD clearly takes operational direction
from the IAOC, who in turn have a responsibility to the IETF community.
While we have taken a lot of pains to specify this, because it is
organizations at work rather than the internals of a company, this is
something that we have all probably worked in and understand reasonably well.
I think the lawyer's desire for the word "managed" vs "controlled" is
seeking legal clarity in the terminology here. "Managed" is the usual word
for what the IAOC does in this context, and "controlled" isn't.
ISOC has proposed this:
Should the IETF standards process at some future date come to include
other technical activities, the IASA shall use reasonable efforts to
provide administrative support for those activities as well.
to replace this:
Should the IETF standards process at some future date come to
include other
technical activities, the IASA shall provide administrative support
for those activities as well.
I can see the desire not to write blank checks, and I suspect the concern
on ISOC's part is that saying IASA provides for support for future
technical activities implies such a blank check. I think "use reasonable
efforts" is the wrong set of weasel words, though, as it implies that the
IASA (in some vague fashion) gets to decide what those efforts are. May I
suggest the following instead:
Should the IETF standards process change over time, the IAOC will work
with the IETF community and ISOC BoT to adapt its support so that new
support activities can be managed under the IASA function.
That's not a blank check, it gets across the idea that new functions stay
under IASA/ISOC and don't go elsewhere, and it focuses the adaptation on
the IAOC as a body (rather than IASA as a function).
Actually, I think your proposed language is a blank check. It states that
the outcome will be (no way to say "no, that doesn't make sense") support
for the activity.
"Reasonable efforts" is a standard legal phrase. As your proposed change
below accomplishes the same thing, I don't understand the need to invent
phraseology - we should stick to commonly accepted terminology. We both
seem to agree that a blank check is not what we're looking for, so where's
the problem? In addition, the BCP describes the supporting decision
process quite well.
The ISOC lawyer's proposed edit, by the way, changes less words than your
proposed edit.
In a related note, the proposed changes shift "use reasonable efforts" to
"commercially reasonable efforts" in the following:
The IASA expects ISOC to use commercially reasonable efforts to build
and provide that operational reserve, through whatever mechanisms
ISOC deems appropriate.
I am not sure what, if any, specific meaning this change implies, but I
find it odd that it should occur here and not in the other areas. I also
found it odd when thinking of a nonprofit (this is likely due to my
ignorance of the term's usage). But I have expected from other
communication that explicit fund-raising efforts might go into this
process of building a reserve, and it would be nice to have it clarified
that efforts of that nature fall into "commercially
reasonable". Alternatively, using "use reasonable efforts" in the above
makes sense, since a fund-raising entities reasonable efforts pretty
likely include things like endowment/capital campaigns and the like.
Lynn and I just spent some time on the phone talking about this, and we
couldn't figure out the difference between a "reasonable effort" and a
"commercially reasonable effort" either. I'll give you that one.
ISOC proposes to replace this:
Within the constraints outlined above, all other details of how to
structure this activity within ISOC (whether as a cost center, a
department, or a formal subsidiary) shall be determined by ISOC in
consultation with the IAOC.
with this:
Within the constraints outlined above, all other details of how to
structure this activity within ISOC (whether as a cost center, a
division, or a wholly controlled affiliate) shall be determined by
ISOC in consultation with the IAOC.
Again, I am not an expert here, but my reading of "formal subsidiary" and
"wholly controlled affiliate" is not the same. The issue of control is a
very sensitive one here, and I strongly suggest not using the term
"control" here unless there is an extraordinarily strong reason to do so.
This activity is controlled by the IETF in partnership with ISOC, through
the offices of the IAOC. If there are other terms available that do not
muddy those waters, I would strongly prefer that they are used.
This edit was from ISOC's accountant, not the lawyer, but again we're
talking about the relationships between organizations, and legal language.
The term "formal subsidiary" didn't mean much to her, so she mentally
replaced the term with "wholly owned subsidiary" (see
http://www.investorwords.com/5311/wholly_owned_subsidiary.html). It turns
out that non-profit corporations don't have wholly-owned subsidiaries;
"subsidiary" is a legal and accounting term for a commercial corporation.
Non-profits do have "affiliates" of various kinds (see
http://www.investorwords.com/136/affiliate.html). I can't seem to find a
definition on the net for the term "wholly controlled affiliate", but I do
find a number of places where the term is used. I understand it to mean the
two organizations are separate but legally related, that one has a
fiduciary interest in the other but not the other way around, and there is
no other organization taking such an interest. In the question of "who do
you sue", the one taking the fiduciary interest is the lawyer-target -
which has been one of ISOC's roles for over a decade.
Maybe we can agree to call ISOC a non-profit corporation, and the IETF its
"affiliate"? Legally, so I'm told (IANAL), the relationship doesn't change
- ISOC is viewed as being legally "in control" and therefore legally "whom
to sue", and IETF is the child in the relationship. But we can sugar-coat
that if it makes the fact more palatable. That would make the paragraph read
Within the constraints outlined above, all other details of how to
structure
this activity (whether as a cost center, a division, or an
affiliate) shall
be determined by ISOC in consultation with the IAOC.
Alternatively, maybe you could suggest a better *legal* term for the
relationship?
_______________________________________________
Ietf mailing list
Ietf(_at_)ietf(_dot_)org
https://www1.ietf.org/mailman/listinfo/ietf
|
|