Name: Greg Shatan
Organization: GNSO Intellectual Property Constituency (IPC)
Submission ID: 125

The Intellectual Property Constituency of the ICANN GNSO appreciates the opportunity tosubmit the attached comments in response to the ICG's combined Proposal to Transition
Stewardship of the IANA Functions from the NTIA to the Global Multistakeholder
Community.
Respectfully submitted,
Gregory S. Shatan
President, Intellectual Property Constituency more information read the Privacy Note.

Comment of the Intellectual Property Constituency on the IANA StewardshipTransition Coordination Group Proposal to Transition the Stewardship of theIANA Functions from the NTIA to the Global Multistakeholder Community
The GNSO Intellectual Property Constituency (“IPC”) appreciates the opportunity to commenton the IANA Stewardship Transition Coordination Group (“ICG”) Proposal to Transition theStewardship of the Internet Assigned Numbers Authority (“IANA”) Functions from the U.S.
Commerce Department’s National Telecommunications and Information Administration(“NTIA”) to the Global Multistakeholder Community. The IPC has previously commented onthe Cross Community Working Group on Naming Related Functions (“CWG”) Draft Proposal1and Second Draft Proposal,2 and contributed to the GNSO’s approval of the CWG’s Final
Proposal submitted to the ICG, which now forms a significant part of the ICG Proposal.
Questions Concerning the Proposal as a Whole
1. Completeness and clarity: Is the combined proposal complete? Each of the operational community
proposals contains aspects to be completed in the future when the proposal is implemented. Is thecombined proposal specified in sufficient detail such that it can be evaluated against the NTIA criteria?

The IPC believes that the Proposal is specified in sufficient detail to be evaluated against theNTIA criteria. The IPC would not characterize the Proposal as “complete,” due to certain
accountability concerns under the proposal, which are raised more specifically in our answer
to question 3. Furthermore, any IANA Transition proposal would be incomplete if theCCWG-Accountability proposal is incomplete, which it is -- not least because it lacks
sufficient accountability mechanisms regarding ICANN’s responsibility to interpret andenforce contracts it enters into for management of the Domain Name system. The IPC’soverarching concern with the IANA transition is that it should only become effective once theproper accountability mechanisms have been agreed upon and adopted by ICANN and theInternet community. On the other hand, the IPC would not characterize the Proposal as“incomplete,” in the sense that there are glaring omissions that make it impossible tounderstand or evaluate the Proposal. The IPC understands that this Proposal was neverintended to be a “turnkey” proposal, and that significant work needs to be done to implement
the Proposal. There are, however, several ambiguities and implementation concerns that theIPC will highlight in this comment.
1

http://www.ipconstituency.org/storage/positionstatements/IPC%20Comments%20on%20CWG%20Draft%20IANA%20Transition%20Proposal.pdf
2
http://www.ipconstituency.org/storage/position-statements/CWGStewardship%202nd%20Draft%20Proposal%20Input%20Template.pdf

2. Compatibility and interoperability: Do the operational community proposals work together in a single
proposal? Do they suggest any incompatible arrangements where compatibility appears to berequired? Is the handling of any conflicting overlaps between the functions resolved in a workablemanner?

The IPC recognizes that each operational community’s proposal had a limited remit, andcould not go beyond that community’s relationship with the IANA functions. The underlying
proposals therefore tend to be fairly separate. The ICG’s approach has been rather“minimalist” in harmonizing the proposals. It would be hard to truly consider them a single
proposal. That said, there are relatively few outright incompatibilities.
One area where there is at least a potential incompatibility related to the IANA trademarks
and domain names. The IPC understands that the CWG has now conveyed to the ICG that it
does not object to the CRISP proposal that the trademarks and domain names be owned by anentity other than ICANN. While the IPC also does not object to this aspect of the proposal,
the IPC has significant concerns about it, from a trademark law perspective. It is not possible
for a trademark owner to be a “neutral” “container” for the trademarks. A trademark ownerhas active obligations and responsibilities. These include exercising quality control over thegoods and services (e.g., approvals, periodic checks, samples, metrics, etc.) produced bylicensees, monitoring authorized uses of the marks, protecting and enforcing the marks(including actively “policing” for unauthorized uses), and applying for and maintaining
trademark registrations. As the company behind the name, the trademark owner must havebroad discretion to exercise these responsibilities. As such, it is important that the owner of
the IANA trademarks is overseen by and accountable to all three operational communities.
3. Accountability: Do the operational community proposals together include appropriate and properly
supported independent accountability mechanisms for running the IANA functions? Are there anygaps in overall accountability under the single proposal?

A significant gap exists regarding oversight or appeal of actions by PTI affecting the rootzone relating to ccTLD root zone actions, in particular delegations/redelegations. The CWG
decided to drop any oversight process for IANA decisions and actions regarding ccTLD rootzone entries, and there is no timetable for developing such a process prior to the transition(see page 51 and Annex O). This violates Section 5(vi)3 and 7(v)4 of the “principles andcriteria” adopted by CWG (page 77) and raises questions about compliance with the NTIA
criteria. We are skeptical that such a process will ever be developed if it is not developed
now. At the least, we believe there should be a firm and explicit commitment to develop
such a process on a known timeline.
3“Appeals and redress: Any appeals process should be independent, robust, affordable, timely, provide binding
redress open to affected parties and be open to public scrutiny. Appeals should be limited to challenging theimplementation of policy or process followed, not the policy itself.”
4“The decisions and actions of the IANA Functions Operator should be made objectively based on policy agreed tothrough the recognized bottom-­‐up multistakeholder processes. As such, decisions and actions of the IANA
Functions Operator should … Be appealable by significantly interested parties.”

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Furthermore, in light of the strong interdependencies of this proposal with the ICANN
accountability enhancements proposed by the CCWG-Accountability, the transition cannot
be implemented until those accountability enhancements have been agreed upon andimplemented.
4. Workability: Do the results of any tests or evaluations of workability that were included in theoperational community proposals conflict with each other or raise possible concerns when considered
in combination?

The IPC has no comment to offer in response to this question.
Questions Concerning NTIA Criteria
5. Do you believe the proposal supports and enhances the multistakeholder model? If yes, please
explain why. If not, please explain why and what proposal modifications you believe are necessary.

Overall, the IPC believes that the proposal supports the multistakeholder model. However, inone very important aspect, the IPC believes that the proposal does not support and certainly
does not enhance the multistakeholder model. In the bodies created by the CWG -- and theCCWG-Accountability as well -- representation from the GNSO stakeholder communities is
set at the stakeholder group level. This means that the IPC, Business Constituency (BC) andInternet Service and Connectivity Providers Constituency (ISPCP) will be crammed into asingle Commercial Stakeholder Group (CSG) seat. This is far removed from (and aninappropriate use of) the narrow purpose of the CSG, which was to organize voting for theGNSO Council. The result is that the IPC will, more likely than not, fail to be directly
represented on those bodies. When an IPC member is seated, they will need to represent a
homogenized view of the ISPCP and BC communities rather than speak for the IPC. This
tends to diminish and exclude the IPC, and compromise representation of the entire
commercial sector. For specific examples, see, e.g., the composition of the IANA Function
Review Teams on pages 85 and 87.
6. Do you believe the proposal maintains the security, stability, and resiliency of the DNS? If yes, please
explain why. If not, please explain why and what proposal modifications you believe are necessary.

Modifying the proposal to provide for implementation (before transition) of an
oversight/appeal mechanism regarding ccTLD root zone decisions would enhance the extent
to which the proposal maintains the security, stability and resiliency of the DNS. Satisfactionof this criterion also depends on the extent to which the accompanying accountability
enhancements affirm and support ICANN’s responsibility to negotiate, interpret and enforce
contracts for management of DNS functions such as gTLD domain name registration.
7. Do you believe the proposal meets the needs and expectations of the global customers and partnersof the IANA services? If yes, please explain why. If not, please explain why and what proposal
modifications you believe are necessary. Please indicate if you are a customer or partner of the IANAservices.

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The IPC is not a direct customer or partner of the IANA services (although our members are
directly or indirectly affected by the IANA services). As such, we do not believe it isappropriate to offer a comment in response to this question.
8. Do you believe the proposal maintains the openness of the Internet? If yes, please explain why. If not,please explain why and what proposal modifications you believe are necessary.

While the proposal may “maintain” the openness of the Internet, it presents an opportunity
for improving transparency, access and openness of operations which should not be missed.
For one example, the provisions of the “draft term sheet” in Annex S (page 140) would add
greater transparency to decisions regarding the IANA naming functions. Consideration
should be given to making these transparency provisions a binding aspect of the transitionplan.
9. Do you have any concerns that the proposal is replacing NTIA’s role with a government-led or intergovernmental organization solution? If yes, please explain why and what proposal modifications you
believe are necessary. If not, please explain why.

The IPC is concerned with one aspect of the proposal in this regard. In the event of apotential separation by the naming community, the recommendations of the IANA Functions
Review and of the SCWG are to be approved by the “community mechanism” to be createdby the CCWG-Accountability. As proposed by the CCWG, the community mechanism may
have the GAC as a voting body within the mechanism, with votes equal to the GNSO or theccNSO. This contrasts with the GAC’s current role on the ICANN Board, where it has novotes and acts in an advisory capacity (albeit with special weight given to formal advice to theBoard). This voting role for the GAC significantly expands the GAC’s mandate within
ICANN, including (but not limited to) IANA-related matters.
10. Do you believe that the implementation of the proposal will continue to uphold the NTIA criteria in thefuture? If yes, please explain why. If not, please explain why and what proposal modifications you
believe are necessary.

There are still unresolved or unfinished issues relating to each of the NTIA criteria. Until
these issues are resolved, we cannot say with confidence that the proposal will continue touphold the NTIA criteria in the future. In particular:
1. Broad Community Support: Although the ICG has concluded that each of the individual
proposals has broad community support, the ICG will make a determination about
whether the combined proposal has achieved broad community support only after reviewof the public comments on the combined proposal.
2. Support and enhance the multistakeholder model: While the IANA side of themultistakeholder model (retaining the functional separation between policy development
processes and IANA) seems straightforward and clear, the ICANN policy development
process is supported by the statement that it “remains bottom-up, transparent, and4

3.

4.

5.
6.

inclusive of all stakeholders.” While the IPC does not see anything in this Proposal thatlessens the transparency and inclusiveness of the ICANN policy development process,the IPC also does not believe that it particularly enhances it. The IPC continues toemphasize that the policy development process needs enhancement in order to be fully“inclusive of all stakeholders.”
Maintain the security, stability, and resiliency of the Internet DNS: The ICG notes that
there is ongoing work on developing Service Level Expectations for names and that theongoing work must be completed. The IPC notes that this ongoing work has now led torecommendations from the CWG’s SLE Working Group, and it appears to be a welldrafted and considered set of recommendations. However, it is too early to comment on
this aspect of the work and confirm that it maintains the security, stability and resilienceof the operation of the DNS. Additionally, there is currently no clear replacement oramendment for the Cooperative Agreement between the Root Zone Maintainer (RZM)(currently Verisign) and the IANA functions operator for the Root Zone Management
process, which the ICG states needs to happen to clearly define roles and responsibilities
of both parties and is essential for the secure, stable and resilient operation of the RootZone of the DNS. While there have been some recent statements about progress in this“interrelated and parallel” process, these statements have not been sufficient to provide
clarity on the RZM process and oversight after the transition.
Meet the needs and expectations of the global customers and partners of the IANA
services: As noted above, the IPC is not particularly well placed to comment on this
aspect of the NTIA’s criteria.
Maintain the openness of the Internet: This has been answered earlier in this comment.
Does not replace NTIA role with a government or intergovernmental organization: Thisseems to relate largely to “preventing capture.” The primary vulnerability seems to bethat “a government that operates a ccTLD may become a member of the CSC;
governments are expected to comprise at most a minority of the CSC.” However, there isno limitation on how many governments (as ccTLD operators) may become members ofthe CSC. The GAC will also have a voting seat on the IANA Functions Review Team,
which could also be viewed as an expansion of its current non-voting role in ICANN
governance.

Questions Concerning ICG Report and Executive Summary
11. Do you believe the ICG report and executive summary accurately reflect all necessary aspects of theoverall proposal? If not, please explain what modifications you believe are necessary.

Please see our comments above regarding aspects of the proposal where we have identified
gaps and concerns.
General Questions
12. Do you have any general comments for the ICG about the proposal?

5The IPC would like to take this opportunity to thank the ICG, the operational communities
and their teams (the CWG, IANAPLAN Team and the CRISP team), and each of the members
and participants in those groups, for their hard work in developing these proposals.

Respectfully Submitted,

Intellectual Property Constituency

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