A Special Meeting of the ICANN Board of Directors was held telephonically on 30 September 2016 at 23:00 UTC.
Steve Crocker, Chair, promptly called the meeting to order.
In addition to the Chair, the following Directors participated in all or part of the meeting: Rinalia Abdul Rahim, Cherine Chalaby (Vice Chair), Chris Disspain, Asha Hemrajani, Rafael Lito Ibarra, Markus Kummer, Göran Marby (President and CEO), Bruce Tonkin, and Lousewies van der Laan.
The following Directors sent their apologies: Ron da Silva, Bruno Lanvin, Erika Mann, George Sadowsky, Mike Silber, and Kuo-Wei Wu.
The following Board Liaisons participated in all or part of the meeting: Ram Mohan (SSAC Liaison), Thomas Schneider (GAC Liaison), and Suzanne Woolf (RSSAC Liaison).
The following Board Liaisons sent their apologies: Jonne Soininen (IETF Liaison).
Secretary: John Jeffrey (General Counsel and Secretary).
The following ICANN Executives and Staff participated in all or part of the meeting: Akram Atallah (President, Global Domains Division); Michelle Bright (Board Operations Content Manager); Samantha Eisner (Associate General Counsel); Jamie Hedlund (Vice President, Strategic Programs, Global Domain Division); Vinciane Koenigsfeld (Board Operations Content Manager); Melissa King (VP, Board Operations); Trang Nguyen (Senior Director GDD Operations); Wendy Profit (Board Operations Specialist); Amy Stathos (Deputy General Counsel); Theresa Swinehart (Sr. Advisor to the President on Strategy); and Christine Willett (Vice President, gTLD Operations).
- Main Agenda:
IANA Intellectual Property Agreements
The Chair introduced the agenda item. He noted that the approval of the proposed Assignment Agreement between ICANN and the IETF Trust, which assigns certain intellectual property rights associated with the IANA functions, was one of the final Board actions needed to be taken in advance of the IANA stewardship transition.
Rinalia Abdul Rahim asked whether the five Chartering Organizations of the Cross-Community Working Group-Stewardship had given consent or not objected to the proposed Assignment Agreement. Samantha Eisner provided the Board with a status update on the approvals submitted by the Chartering Organizations. Thomas Schneider provided the Board with an update on the GAC’s consideration of the matter, and the Board engaged in a discussion about whether the GAC needed to provide any additional approvals or non-objections before moving forward with the proposed Assignment Agreement. Thomas asked whether the Assignment Agreement was substantively new, and Bruce Tonkin commented that the Assignment Agreement is an implementation item that is consistent with the IANA Stewardship Coordination Group Proposal, to which the GAC issued a statement of non-objection. Thomas affirmed the GAC’s non-objection on the basis that the Assignment Agreement is consistent with the GAC’s previous non-objection to what was included in the IANA Stewardship Coordination Group Proposal.
The Board also discussed whether there were sufficient checks and balances in place on the IETF Trust trustees in the Assignment Agreement. As part of this discussion, Samantha highlighted some protections included in the Assignment Agreement to address the concern about building appropriate safeguards into the agreement. The President and CEO provided background on ICANN’s work with the IETF Trust on the agreement. He explained that the checks and balances, and other safeguards were developed by the community, and the Board is being asked to accept the work of the community.
Rinalia stated that the agreement requires trust between the parties, and the Chair commented that it was the Board’s expectation that the IETF Trust trustees would provide the mutual protections for the IANA domain name registrations as agreed to in the community and reflected in the agreement.
Rinalia and Bruce suggested edits to the proposed resolution to approve the Assignment Agreement. The Board took the following action:
Whereas, the IANA Stewardship Coordination Group (ICG) included in its proposal that the intellectual property held by ICANN in relation to performing the IANA functions should be transferred to a neutral third party to hold for the benefit of the global Internet community, and licensed back to ICANN.
Whereas, the intellectual property rights at issue include three IANA-related trademarks and a group of domain names registered by ICANN that are either currently in use for the performance of the IANA functions or use the IANA-related trademarks (collectively, the IANA IPR).
Whereas, on 15 August 2015 the ICANN Board issued a statement noting that ICANN is prepared to transfer the IANA IPR as contemplated within the community discussions then ongoing, with ICANN maintaining operational control of iana.org for so long as ICANN remains the IANA Functions Operator.
Whereas, the three operational communities served by the IANA Functions (protocol parameters community, through the IETF; numbering resources community, through the RIRs; and the naming community, through the CWG-Stewardship), agreed that the IETF Trust would be the entity to which the IANA IPR would be transferred, and coordinated with the IETF Trust in the drafting of a series of agreements to guide the assignment, licensing and holding of the IANA IPR.
Whereas, the series of agreements include: a Community Agreement among the operational communities and the IETF Trust, detailing how the IETF Trust will coordinate with the communities to assure that the IANA IPR is held for the benefit of the global Internet community; an Assignment Agreement between ICANN and IETF Trust, assigning the IANA IPR to the IETF Trust; and license agreements between IETF Trust and ICANN for use of the IANA IPR as it relates to each of the three operational communities.
Whereas, the agreements will only be effective upon the expiration of NTIA’s IANA Functions Contract with ICANN.
Whereas, after an initial set of agreements were drafted, ICANN was invited into the community conversation. ICANN worked with the IETF Trust and the operational communities to refine the language within the agreements.
Whereas, the agreements were posted on the ICG webpage for a 30-day public comment, from 12 August – 12 September 2016. Seven comments were received. None of these comments required any modification to the agreements. During the comment period, conversations continued among ICANN, the IETF Trust and the operational communities to refine and produce final modifications to the documents.
Whereas, ICANN understands that the Assignment Agreement and the License Agreements that ICANN will be expected to enter into will take the form of the documents submitted to the Board, though some minor modifications will occur.
Whereas, the Cross Community Working Group to Develop an IANA Stewardship Transition Proposal on Naming Related Functions (the CWG-Stewardship), in its implementation role for the Names Community portion of the proposal, has sent a letter to ICANN requesting that ICANN serve as the signatory to the Community Agreement for the Names Community. The CWG-Stewardship identified a group of instructions that it wishes for ICANN to agree to in serving in this role.
Whereas, ICANN is aware of consent to the instructions included in the Instruction Letter from four of the five Chartering Organizations of the CWG-Stewardship.
Resolved (2016.09.30.01), the ICANN Board approves ICANN entering into the Assignment Agreement between ICANN and the IETF Trust to assign the IANA IPR.
Resolved (2016.09.30.02), the ICANN Board approves ICANN entering into the requisite License Agreements for the purpose of using the IANA IPR in the performance of each of the IANA functions.
Resolved (2016.09.30.03), the ICANN Board approves ICANN serving as the signatory to the Community Agreement at the CWG-Stewardship’s request, based on the consent to the Instruction Letter received by four of five the Chartering Organizations to the CWG-Stewardship, the ALAC, ccNSO, GNSO and SSAC. Further, this is an implementation item that is consistent with the ICG Proposal, to which the GAC issued a statement of non-objection. With all five Chartering Organizations consenting or not objecting, the Board confirms that it will accept the Names Community appointment of representatives to the IANA Community Coordination Group (CCG) to the fullest extent of the law, and will defer to the CCG representatives where appropriate for coordination with the IETF and other operating communities.
Resolved (2016.09.30.04), the ICANN Board authorizes the President and CEO, or his designee, to take all steps necessary to execute the agreements as identified above.
All members of the Board present voted in favor of Resolutions 2016 2016.09.30.01 – 2016.09.30.02. Ron da Silva, Bruno Lanvin, Erika Mann, George Sadowsky, Mike Silber, and Kuo-Wei Wu were unavailable to vote on the Resolutions. The Resolutions carried.
Rationale for Resolutions 2016.09.30.01 – 2016.09.30.04
The ICANN community set out a requirement in its transition proposal that the IANA IPR should be held by an entity separate from the IANA Functions Operator. As ICANN will continue as the IANA Functions Operator, the community identified the IETF Trust, a Virginia common law trust, as the independent party to hold the IANA IPR for the benefit of the global Internet community. Taking this action today supports and implements this part of the proposal.
The agreements considered by the Board are in line with the requirements set out by the community, as well as the Board’s inputs provided on 15 August 2015. The agreements do the following: (i) assign and transfer the IANA IPR from ICANN to the IETF Trust; (2) license back to ICANN the ability to use the IANA IPR, including that ICANN will retain the operational control of the relevant domain name registrations; (3) set out the expectations of how the IETF Trust, as the owner of the IANA IPR, will make sure that the operational communities’ concerns are taken into account. The IETF Trust is not able, prior to the anticipated assignment date, to consider any modifications to its trust documents to allow for more explicit participation of the operational communities in the management of the IANA IPR. As a result, the Community Agreement sets out these expectations, as well as a commitment by the IETF Trust to consider modifications to its trust documents to address this and potential bankruptcy/involuntary transfer situations.
There are fiscal considerations to this transfer. First, this represents a transfer of ICANN’s assets. However, because of the public nature for which ICANN currently holds the IANA IPR, ICANN assigns the assets with a US$0 value. In addition, aligned with the community expectations for the continued public nature of the IANA IPR, ICANN is transferring the IPR to the IETF for US$0. As part of the Agreements, ICANN may have some financial exposure. First, ICANN is currently in the process of informal enforcement actions against two entities for the use of the IANA trademarks. ICANN has agreed to continue those enforcement actions at its own cost. ICANN has also agreed to indemnify the IETF Trust for infringement actions based upon usage identical to how ICANN uses the marks today. Finally, ICANN agrees that it has the opportunity to initiate new enforcement actions, in coordination with the IETF Trust, for enforcement actions that the Trust is willing to have ICANN control. Given the low frequency of IANA-mark-related enforcement actions, these obligations are not likely to represent a large financial obligation.
The Board understands that all of the Chartering Organizations to the CWG-Stewardship have provided consent (ALAC, ccNSO, GNSO and SSAC) or non-objection (GAC) to the instruction letter. ICANN is therefore willing to serve as the signatory to the Community Agreement. ICANN can accept the IANA Community Coordination Group representatives as identified by the Names Community, to the fullest extent of the law. Where the Community Agreement identifies that the CCG representatives are the entity to consult with the IETF Trust or other operating communities, ICANN will defer to the CCG representatives identified by the Names Community. As anticipated under the letter, ICANN is not agreeing in advance to take any action at the direction of the CCG representatives that would ICANN to breach the Community Agreement or License Agreements, or that would otherwise result in liability to ICANN.
This action does not have an impact on the security, stability or resiliency of the Internet DNS. The signing of the Assignment Agreement and License Agreements are Organizational Administrative Functions for which public comment was received. The signing of the Community Agreement is an Organizational Administrative Function for which additional community inputs are desirable.
The Chair called the meeting to a close.
Published on 10 November 2016