Re: [Trustees] The Trust Agreement

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

On 03/08/2013 23:50, Jorge Contreras wrote:

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


On Sat, Aug 3, 2013 at 1:49 AM, Chris Griffiths 
<cgriffiths(_at_)gmail(_dot_)com>wrote:

On Aug 1, 2013, at 10:59 PM, Brian E Carpenter <
brian(_dot_)e(_dot_)carpenter(_at_)gmail(_dot_)com> wrote:

Hi Brian,

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.

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.

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".