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RE: [nc-budget] Re: Intellectual-Property Arrangements Concerning AFNIC's Past Provision of Secretariat Services
Vany, you have the key issue in your comment:
" But the terms of the licence are not convenient for ICANN " according
to Louis.
Well, that what a contract negotiation is all about- the terms.
Since the license is being offerred for ICANN internal use, Free, then
ICANN- actually the DNSO could easily be flexible about the terms of the
license.
peter
-----Original Message-----
From: owner-nc-budget@dnso.org [mailto:owner-nc-budget@dnso.org] On
Behalf Of Nilda Vany Martinez Grajales
Sent: Wednesday, October 31, 2001 12:46 PM
To: Peter de Blanc
Cc: 'Gomes, Chuck'; 'Louis Touton'; nc-budget@dnso.org; 'Theresa
Swinehart'; 'Stuart Lynn'
Subject: Re: [nc-budget] Re: Intellectual-Property Arrangements
Concerning AFNIC's Past Provision of Secretariat Services
Peter:
Peter de Blanc wrote:
> Vany:
>
> First, the item was not "given". A license to use the developed work
> is the operative word.
OK
> And don't forget, the license was/is offerred free for internal ICANN
> use, as long as there is no money involved.
Excellent!!! But the terms of the licence are not convenient for ICANN
neither DNSO, and that's how Louis Touton understood.
> Elisabeth may, or may not reap some commercial benefit by licensing
> the software elsewhere for money, provided she retains ownership.
Excellent!!
> I do not see why you, or anyone else in this playpen would insist on
> "owning" software developed by someone, when that someone is offerring
> to let you use it for free.
She can retain intellectual property by providing in the code, some
lines that says " This was done by AFNIC, or Elisabeth Porteneuve" is
she wants.
> It is simply providing an acknowledgement of her work, and allowing
> the possibility of some income, from somewhere outside of ICANN in the
> future.
I said that in my previous e-mail...no body is denying her worl
> Finally, the ongoing DNSO secretarial functions NEVER included
> software development. As I have indicated before, I am in the
> business, and I pay US $ 50 to US $ 100 per hour for programmers to do
> software development.
And she never told us before making the software that she will charge to
the DNSO
or ICANN for make such software for us. She made in a voluntary basis
for
us.
No good that after we tasted the candy she offered, then she charges,
when the we didn't
know that her works implied to pay her. Also her status of
Secretariat,
as far as I understand, she was
representing AFNIC as Secretariat...whatever, she wanted to do by
herself in her own behalf should be
clarified BEFORE (not after) perfoming such work. And be AFNIC, be
Elisabeth, be whover, the right thing
to do is clarify BEFORE perfoming a work that such work will have a
charge.
> My recommendation is that we discuss this, face to face, in Marina Del
> Rey, and figure out a way for Elisabeth to get the acknowledgment she
> needs, preserve her Intellectual Property, and allow the DNSO
> continued use (free) of the software.
That's exactly what I want too...and I add that also the terms of the
licence be fair for us, and not something that be negative for the DNSO
in
the future. Remember, the one that the one pointed out that licences
terms was not good for DNSO was Louis Touton itself. I am not Louis
Touton, but also I saw the same danger than him some months ago. So,
here there is a real issue and concern and also Ken realized the
potential future implications of such a licences that Elisabeth proposed
to ICANN!!!
And, futher, if she wants more people working in her software for future
developments, as an advice she should use the GPL licence, if she is not
using it already (I am giving free advisory here).
Best Regards
Vany
> Peter de Blanc
>
> -----Original Message-----
> From: owner-nc-budget@dnso.org [mailto:owner-nc-budget@dnso.org] On
> Behalf Of Nilda Vany Martinez Grajales
> Sent: Tuesday, October 30, 2001 1:44 PM
> To: Peter de Blanc
> Cc: 'Gomes, Chuck'; 'Louis Touton'; nc-budget@dnso.org; 'Theresa
> Swinehart'; 'Stuart Lynn'
> Subject: Re: [nc-budget] Re: Intellectual-Property Arrangements
> Concerning AFNIC's Past Provision of Secretariat Services
>
> Elisabeth, Peter and Chuck:
>
> If someone give in a voluntary basis something to you...and one or two
> years later comes to my door to ask me: "remember that thing I gave
> you? please pay me such ammount of money for all the time I gave such
> item or service in a voluntary basis". How would you feel?
>
> I understand that Elisabeth spent personal time in this. Also I spent
> personal time in this in a voluntary basis, to be an Names Council
> member is an activity totally voluntary. And now because I am serving
> voluntary to the Names Council, means that I will pass an invoice to
> the Names Council for all the time that I've been serving in the Names
> Council for an amount of money?
>
> Elisabeth spent personal time because she voluntary decided. The
fair
> is that she should ask to AFNIC if AFNIC was willing to pay extra
> time for this previous she began to work in a personal basis, if AFNIC
> said NO, then the fair it would be that Elisabeth had asked to Names
> Council and DNSO if we are willing to pay her directly for her
> personal services BEFORE she began to perform such services. All this
> time, she is being representing AFNIC both as Secretariat and ccTLD.
> AFNIC probably didn't wanted to recognize her all her personal time
> used was her business and now she wants to pass the bill to the Names
> Council.
>
> Elisabeth, I recognize that you made a great job with everthing
> related to Names Council needs, and no one is denying such facts.
>
> But morally and ethically, services offered in a voluntary basis might
> not be charged to the beneficiary of such services that, in fact, as
> you are working also voluntarily in this issue and always representing
> AFNIC.
>
> I will give you my own experience: I have being providing
> videonconferencing facilities to the NCDNHC since Melbourne meeting.
> I use personal resources both in money and equipment to do this.
> Also, when I didn't received economical support for travel, I have
> payed my own ticket. In other times, organizations as Salzburg
> Seminar and the Host Committee of ICANN in Meeting in Montevideo
> directed by Raul Echeberria and Ida Holz, supported me with travel
> grants, and also I invest my time coordinating with ICANN for use the
> same conectivity they are using, and also with other ICANN sponsors to
lend me equipment when
> it is necessesay. Do you think would be moral, ethical and fair
that
> on December 2001 I pass a bill to the NCDNHC for all the work done in
> Melbourne, Stockholm, Montevideo and, if G'd allows it, in Los Angeles
> when every time I announced the service I have never clarified to the
> NCDNHC that such service will have a charge for them?
>
> Excuse me Elisabeth, Peter and Chuck: Elisabeth is not the only one
> that make things like this for the DNSO or any of its constituencies.
>
> Regarding licences. I haven't seeing any software yet that have such
> restrictive and damaging conditions for the beneficiary of the
> software. Bill Gates still is dreaming to put such a licence in all
> Microsoft software. But if he didn't do it yet maybe is because two
> reasons: or it is not acceptable to the market, or it is not allowed
> by the USA laws.
>
> Best Regards
> Vany
>
> Peter de Blanc wrote:
> >
> > Greetings, colleagues:
> >
> > As I see it, AFNIC was not paid for software development. Let's face
> > it, I run a commercial shop and I pay US $ 75 to $ 150 per hour for
> > software development. If the software was developed by individuals,
> > on
>
> > their own time, or if AFNIC paid for software development, I do not
> > see how DNSO gets to automatically own such software as may have
> > been developed just because AFNIC was paid for web and secretarial
> > services.
> >
> > The concept of a non-exclusive license to use the software for $
> > 1.00 per year seems reasonable to me. Perhaps the license agreement
> > could or should be for 10 years, or 25 years.
> >
> > Peter de Blanc
> >
> > -----Original Message-----
> > From: owner-nc-budget@dnso.org [mailto:owner-nc-budget@dnso.org] On
> > Behalf Of Gomes, Chuck
> > Sent: Sunday, October 28, 2001 7:28 PM
> > To: 'vany@sdnp.org.pa'; Louis Touton
> > Cc: nc-budget@dnso.org; Theresa Swinehart; Stuart Lynn
> > Subject: RE: [nc-budget] Re: Intellectual-Property Arrangements
> > Concerning AFNIC's Past Provision of Secretariat Services
> >
> > I certainly emphathise with the sentiments of Ken and Vany, but
> > before
>
> > we take to strong a position, it probably is wise to remember that
> > we received a lot of no-cost services from Elisabeth and AFNIC. I
> > think it would be useful if we as a committee discussed the concerns
> > we have
>
> > with Elisabeth with the goal of reaching a mutually acceptable
> > solution.
> >
> > Chuck
> >
> > > -----Original Message-----
> > > From: Nilda Vany Martinez Grajales [mailto:vany@sdnp.org.pa]
> > > Sent: Sunday, October 28, 2001 2:38 PM
> > > To: Louis Touton
> > > Cc: nc-budget@dnso.org; Theresa Swinehart; Stuart Lynn
> > > Subject: Re: [nc-budget] Re: Intellectual-Property Arrangements
> > > Concerning AFNIC's Past Provision of Secretariat Services
> > >
> > >
> > > Hi Kent:
> > >
> > > Ken Stubbs wrote:
> > > >
> > > > FWIW...
> > > >
> > > > i did not realize that there were "issues" here.. as far as
> > > i am concerned,
> > > > this issue is not one which i would want to turn into some
> > > sort of "intense
> > > > negotitaion" .. for my part in this matter, i would not be
> > > interested in
> > > > paying any sort of "royalty for this software and am quite
> > > certain that the
> > > > council can find other "alternatives" for future votes if
> > > we need to.
> > >
> > > I am totally agree with you.
> > >
> > > > frankly, i am somewhat disappointed that there are any
> > > "issues" in the
> > > > transition at all..
> > >
> > > As some points of the Counter-proposal to AFNIC I suggest the
> > > following
> > > points:
> > >
> > > 1. All software and hardware gotten in behalf of ICANN's DNSO
> > > with any funds products of donations, verbal and/or written
> > > cooperation agreements, explictily or implicitly included in any
> > > document where
> it
> > > is understood that such hardware was bought under based in DNSO
> Budget
> > > for Secretariat purposes, that was done to AFNIC, the property of
> > > all of these has to be transfered to ICANN since DNSO belongs to
> > > ICANN and
> we
> > > are paying such items. It won't be fair that if AFNIC bought
> software
> > > and hardware, has requested we pay for this, and still they claim
> > > to not transfer this to ICANN's DNSO. Please, read the following
> > > document for
> > > reference
> > > http://www.dnso.org/clubpublic/nc-budget/Arc00/msg00199.html
> > >
> > > 2. All documentation in hard paper or digitalized making
> > > references
>
> > > to DNSO that holds AFNIC, including any documents with third
> > > parties that agreeded in any moment to cooperate with DNSO
> > > operations with funds and/or equipment has to be disclosed and
> > > transfered to ICANN and
> also
> > > disclosed to the Names Council members and its constituencies
> > > since DNSO is part of ICANN.
> > >
> > > 3. With the specific item of the content of the website and
> > > mailing lists digest archives and archives containing the e-mail
> > > addresses of the suscribers of all DNSO mailing lists, all of
> > > these belongs to
>
> > > DNSO, and such should be transfered to ICANN, since DNSO is part
> > > of ICANN. Please, let me remind you that DNSO website is
> > > copyrighted to
>
> > > DNSO, so maybe none futher agreement is needed since this is
> > > stated in the website.
> > >
> > > 4. Regarding the specific item of the votation software including
> > > its source code, binaries, etc, it should be transfered to ICANN,
> > > since DNSO is part of ICANN, as Louis Touton indicated: That ICANN
> > > should "acquire either title to the software, or at least the
> > > fully paid-up right to use the software perpetually for its
> > > purposes and also to make improvements
> > > to the software as the DNSO sees fit."
> > > Also I want to remind that if the software was with GPL
> > > licences of part
> > > of the software works with libraries of GPL licences, also the
> voting
> > > software should be free of distribution, free for modifications,
> etc,
> > > and also it should come with its source code. I don't know at
> > > this point if the software was made with GPL licences or uses GPL
> > > libraries, etc... But I strongly suggest investigation on this
> > > issue. Also please, I suggest you that you visit the following
> > > URL:
> > >
> > > http://www.dnso.org/secretariat/1999.Secretariatreport.html
> > >
> > > In this report from AFNIC, it reports the following:
> > >
> > > "With regard to specifications provided by the Names Council, the
> > > Secretariat sets up and writes scripts for a voting system
> > > allowing for anonymous votes by NC members, and disclosure of full
> > > records once
> >
> > > the results are known and adopted. This system is used for the
> > > first
>
> > > time for the vote on the WG-A report."
> > >
> > > As you may realize no where the Secretariat, and I understand the
> > > Secretariat as AFNIC and that Elisabeth Porteneuve is the deleguee
> > > of AFNIC, since Secretariat services wasn't perfomed in Elisabeth
> > > own behalf, never made any references or warning about costs
> > > regarding such voting software, and clearly implies that the
> > > Secretariat is giving voluntarily the software for the needs of
> > > the DNSO. I don't know why now Mrs. Porteneuve is claiming
> > > licences. AFNIC wrote it, AFNIC voluntarily gave it to us, and now
> > > Mrs. Portneuve wants to charge for a software voluntarily granted
> > > already with all sort of kind of
> limited
> > > licences, etc, that looks like the dream license that Bill Gates
> would
> > > wants for its software!. This is totally unfair.
> > >
> > >
> > > 5. With regarding the change of DNSO Secretariat, let me remind
> > > you that AFNIC wants a separate contract for provided all
> > > technical services regarding Internet Services. This means that
> > > contratation of AFNIC either if it is only one contract or two
> > > contracts cannot take place until all negociations regarding
> > > voting software, DNSO data, documents etc, has being
> > > satisfactorily transfered to ICANN.
> > >
> > > 6. Also I want to remind to this Committee that in view of this
> > > situation that is happening right now, it is more than wise to
> > > include
> >
> > > provission in the future contract with AFNIC and Lodger INC
> > > (either will be one or two contracts) provisions to avoid
> > > situations like
> this
> > > happens in the future. I suggested this provisions in the Search
> > > Committee several months before, but I never had knows if they was
> > > included in the list of points to cover sent to you by either
> > > Chuck and/or Erica.
> > >
> > > I hope this be resolved soon in the best interest of ICANN and
> > > DNSO.
>
> > > We must take care and protec ICANN's DNSO patrimony and stand
> > > against the abuse.
> > >
> > > Best Regards
> > > Vany
> > >
> > > > ken stubbs
> > > >
> > > > ----- Original Message -----
> > > > From: "Louis Touton" <touton@icann.org>
> > > > To: <nc-budget@dnso.org>; "Philip Sheppard"
> > > > <philip.sheppard@aim.be>
> > > > Cc: "Glen De Saint Gery" <gcore@wanadoo.fr>; "Theresa Swinehart"
> > > > <swinehart@icann.org>; "Stuart Lynn" <lynn@icann.org>
> > > > Sent: Saturday, October 27, 2001 7:12 PM
> > > > Subject: Intellectual-Property Arrangements Concerning AFNIC's
> Past
> > > > Provision of Secretariat Services
> > > >
> > > > > Dear Philip, and Names Council Budget Committee Members,
> > > > >
> > > > > We wanted to provide you with an update on the status of
> > > the transfer of
> > > > > AFNIC's claims to intellectual property used in DNSO
> > > > > operations.
> > > > >
> > > > > At its meeting on 24 January 2001
> > > > >
> > > <http://www.dnso.org/dnso/notes/20010124.NCtelecon-minutes.html>,
> > > the
> > > > > Names Council voted (in Decision D5) as follows:
> > > > >
> > > > > "The Names Council Chair (Ph. Sheppard according to
> > > the results of
> > > > > the election at this meeting) will instruct ICANN to
> > > make a payment
> > > > > upon a receipt of two compliant reports and after the
> following
> > > > > conditions have been met:
> > > > >
> > > > > * Services provided at no cost during interim period,
> > > > > * A satisfactory report from AFNIC on the IP acquired
> > > by the DNSO,
> > > > > * Additional report on how AFNIC'S costs should be
> > > allocated within
> > > > > the DNSO."
> > > > >
> > > > > We were asked to assist on item 2, namely that "a
> > > satisfactory report
> > > > > from AFNIC on the IP acquired by the DNSO."
> > > > >
> > > > > Six months after the Names Council vote, on 26 July 2001,
> > > we received a
> > > > > "Confidential draft" document from Elisabeth Porteneuve, which
> > > > > she
> >
> > > > > explained had been prepared by Eric Barbry, AFNIC Legal
> > > > > Counsel,
>
> > > > > entitled "Transfer Agreement for the IP Rights and Use of
> > > the Software."
> > > > >
> > > > > We have reviewed the document and find it is
> > > unsatisfactory, for two
> > > > > reasons:
> > > > >
> > > > > 1. The document provides a limited-term license to
> > > use software for
> > > > > e-mail voting prepared by Ms. Porteneuve. This agreement
> > > would be with
> > > > > Ms. Porteneuve, not AFNIC. The scope of the rights that
> > > are offered
> > > > > appear
> > > > > inadequate and the agreement seeks to impose conditions
> > > and obligations
> > > > > that preclude ICANN from entering into the agreement.
> > > > >
> > > > > In reviewing the document, we have considerable concerns that
> > > > > the so-called "Transfer Agreement" (not a descriptive term,
> > > for reasons
> > > > > explained below) does not encompass the intent of the
> > > Names Council
> > > > > objectives as to the voting software. The Names Council
> > > > > decision contemplates paying for the development of this
> > > > > software.
> > > One would
> > > > > expect that in return the DNSO/ICANN would acquire either
> > > title to the
> > > > > software, or at least the fully paid-up right to use the
> > > > > software perpetually for its purposes and also to make
> > > > > improvements to the software as the DNSO sees fit. However,
> > > > > this is not at
> > > all what the
> > > > > software's author has offered. By way of example:
> > > > >
> > > > > a. The Term of the proposed Transfer Agreement is
> > > > > "tacitly renewable, each year, for a one (1) year period
> > > > > unless one of the parties notifies the other party of its
> > > > > decision not to renew the agreement, by certified letter with
> > > > > a return receipt,
> > > sent no later than
> > > > > one (1) month prior to the expiration date." In other
> > > words, software's
> > > > > author has the option to terminate DNSO/ICANN rights on any
> > > > > anniversary date of the Transfer Agreement. It is our
> > > understanding
> > > > > that the NC intended the transfer to be for unlimited
> > > time, not subject
> > > > > to annual renewal.
> > > > >
> > > > > b. The proposed Transfer Agreement prohibits
> > > DNSO/ICANN from
> > > > > "adapting, modifying, transforming, developing or
> > > arranging the software
> > > > > in order to create derived or new functionality of an entirely
> > > > > new
> >
> > > > > software and/or derived software." In other words,
> > > DNSO/ICANN would be
> > > > > required to obtain the software's author's additional
> > > > > permission
>
> > > > > (possibly for a fee) in the event that it wishes to make any
> > > enhancements to the
> > > > > voting software.
> > > > >
> > > > > c. To a similar effect, the Transfer Agreement
> > > > > prohibits DNSO/ICANN from "describing directly or indirectly
> > > > > or translating
> > > the software in
> > > > > any other language as well as modifying it even
> > > partially, even in part,
> > > > > in order to use the software on any other hardware that the
> > > > > one described in the special terms and conditions." Thus,
> > > the software may
> > > > > only be used on the hardware specifically authorized by
> > > > > software's
> >
> > > > > author.
> > > > >
> > > > > d. Apparently dissatisfied with the level of
> > > control inherent in
> > > > > the above restrictions, the agreement adds a general
> > > prohibition from
> > > > > "using it for any processing unauthorized by Ms. Elzbieta
> > > Porteneuve"
> > > > > and warns that "any use of the software non-expressly
> > > authorized by Ms.
> > > > > Elzbieta Porteneuve is illegal in application of section
> > > 47 of the July
> > > > > 3rd 1985 Act of French Intellectual Property Code."
> > > > >
> > > > > The above are examples only of the inadequate nature of
> > > the rights being
> > > > > offered.
> > > > >
> > > > > In addition, the proposed Transfer Agreement imposes
> > > requirements on
> > > > > DNSO/ICANN that we believe are not contemplated by the
> > > Names Council
> > > > > decision. In particular, it imposes on DNSO/ICANN an
> > > > > affirmative obligation to register the software's source code
> > > > > with the Agence de Protection des Programmes (APP), including
> > > > > complying with
> > > applicable
> > > > > rules and paying costs related to that registrations.
> > > > >
> > > > > 2. The second reason that the proposed Transfer Agreement
> > > > > is
>
> > > > > inadequate is that it applies only to the voting
> > > software. In proposing
> > > > > to pay AFNIC for the activities of the past, the Names Council
> > > > > can
> >
> > > > > reasonably expect to obtain, formally and unequivocally,
> > > all rights that
> > > > > AFNIC and its consultants may have acquired in connection with
> > > > > the
> >
> > > > > material on the DNSO web site. No such offer was made.
> > > We alerted Ms.
> > > > > Porteneuve to this inadequacy, and she indicated that
> > > AFNIC would likely
> > > > > be willing to provide a transfer of any rights it may
> > > have in the DNSO
> > > > > web site, without warranty as to AFNIC's having any such
> > > rights. This
> > > > > should be adequate, but would require preparation of an
> > > appropriate
> > > > > agreement.
> > > > >
> > > > > To proceed in this matter, it will be necessary to prepare a
> > > > > counter-proposal to AFNIC's proposal that we believe
> > > would meet the
> > > > > Names Council's objectives. As I'm sure you can
> > > understand, we did not
> > > > > anticipate needing to take on this level additional work
> > > as a result of
> > > > > the changing of the DNSO secretariat, but will seek to
> > > complete a draft
> > > > > transfer agreement as soon as possible. If you believe,
> > > in view of the
> > > > > substantial inadequacies of the AFNIC offer, that further
> > > work on our
> > > > > part in preparing an agreement is not justified, please
> > > let me know.
> > > > >
> > > > > Best regards,
> > > > >
> > > > > Louis Touton
> > > > >
> > >
> > > --
> > > Nilda Vany Martinez Grajales
> > > Information Technology Specialist
> > > Sustainable Development Networking Programme/Panama
> > > Tel: (507) 317-0169
> > > http://www.sdnp.org.pa
> > > e-mail: vany@sdnp.org.pa
> > >
>
> --
> Nilda Vany Martinez Grajales
> Information Technology Specialist
> Sustainable Development Networking Programme/Panama
> Tel: (507) 317-0169
> http://www.sdnp.org.pa
> e-mail: vany@sdnp.org.pa
--
Nilda Vany Martinez Grajales
Information Technology Specialist
Sustainable Development Networking Programme/Panama
e-mail: vany@sdnp.org.pa
http://www.sdnp.org.pa
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