Subject: Legal review results 1: Intellectual property

From: Harald Tveit Alvestrand <[email-masked]>
Date: Fri, 21 Jan 2005 15:40:31 +0100

In this and a few later messages, I'm relaying comments from Jorge 
Contreras, the IETF's pro bono legal counsel.
------------------------------------------------------------
1.  Intellectual Property.  I think I understand the reason for including 
an explicit requirement that IP created in support of IETF activities be 
usable by IETF on a perpetual basis.  The way this concept is expressed, 
however, should probably be adjusted slightly to reflect the way IP rights 
are actually conveyed and licensed.

Old Text (Sec. 3.1, paragraphs 5-6)

The IAD is responsible for ensuring that all contracts give IASA and
   the IETF the perpetual right to use, display, distribute, reproduce,
   modify and create derivatives of all data created in support of IETF
   activities.  This is necessary to make sure the IETF has access to
   the data it needs at all times, and to ensure that the IASA can
   change contractors as needed without disrupting IETF work.

   Whenever reasonable, if software is developed under an IASA contract
   it should should remain usable by the IETF beyond the terms of the
   contract.  Some ways of achieving this are by IASA ownership or an
   open source license; an open source license is preferable.  The IAD
   shall decide how best to serve the IETF's interests when making such
   contracts.

Suggested new text (Sec. 3.1, paragraphs 5-6)

(A)  If a contract entered into by ISOC on behalf of IASA and/or the IETF
(an "IASA Contract") provides for the creation, development,
 modification or storage of any data (including, without limitation, any
data relating to IETF membership, documents, archives, mailing lists,
correspondence, financial records, personnel records and the like)
("Data"), then the IAD shall ensure that such contract grants to ISOC
the perpetual, irrevocable right, on behalf of IASA and IETF, to use, 
display, distribute, reproduce, modify and create derivatives of such Data.
ISOC will permit IASA and its designee(s) to have sole control and
custodianship of such Data, and ISOC will not utilize or access such
Data in connection with any ISOC function other than IETF without
the written consent of the IAD.

(B)  If an IASA Contract provides for the creation, development or
 modification of any software (including, without limitation, any
search tools, indexing tools and the like) ("Developed Software")
then the IAD shall, whenever reasonable and practical, ensure
that such contract either (a) grants ownership of such Developed
Software to ISOC, or (b) grants ISOC a perpetual, irrevocable
right, on behalf of IASA and IETF, to use, display, distribute,
reproduce, modify and create derivatives of such Software
(including, without limitation, pursuant to an open source style
license).  It is preferred that Developed Software be provided and
licensed for IASA and IETF use in source code form.
ISOC will permit IASA and its designee(s) to have sole control and
custodianship of such Developed Software, and ISOC
will not utilize or access such Developed Software in
connection with any ISOC function other than IETF without
the written consent of the IAD.  The foregoing rights are not required
in the case of off-the-shelf or other commercially-available software
 that is not developed at the expense of ISOC.

(C)  If an IASA Contract relates to the licensing of third party software,
the IAD shall ensure that such license expressly permits use of such
software for and on behalf of IASA and/or IETF, as applicable, and
that such license is transferable in accordance with the provisions of
Section 7 (Removability).

In addition, the principle stated in 2.2(7) should be expanded to
include software, as well as data.

--------------------------------------------------------------------

My biggest problem with this is size..........

_______________________________________________
Ietf mailing list
[email-masked]
https://www1.ietf.org/mailman/listinfo/ietf

---

From: Brian E Carpenter <[email-masked]>
Date: Fri, 21 Jan 2005 17:08:56 +0100

Harald Tveit Alvestrand wrote:
...
> My biggest problem with this is size..........

I think in the case of text resulting from legal review, that
is not something we should worry about.

     Brian

---

From: Jeffrey Hutzelman <[email-masked]>
Date: Fri, 21 Jan 2005 18:50:29 -0500

> the written consent of the IAD.

This looks problematic to me.  It suggests that if the IASA funds 
development work on an open-source ticketing system, that ISOC would not be 
allowed to use that system without the consent of the IAD.  This is wrong - 
if the IASA is going to fund any open-source development, it should not 
expect to have control over who uses the result.

Also, I'm a bit concerned about language that tries to limit what ISOC can 
do without the written consent of the IAD.  Given that the IAD will be an 
employee of ISOC, it's not clear that this actually provides any protection.

---

From: Sam Hartman <[email-masked]>
Date: Sat, 22 Jan 2005 17:16:42 -0500

I'm still concerned with not having the ability to sublicense rights
we have under this section.

The last time I discussed this issue Harald pointed out that I was
asking for more rights than we had under 3667.

However I have sense been convinced that 3667 is broken.

---

From: Dean Anderson <[email-masked]>
Date: Mon, 24 Jan 2005 00:09:57 -0500 (EST)

One problem:

One can have full control over the software source code copyright but not
over the patents that cover use of the software.  If you don't have a 
patent license, you can't use patented software.  

The text should be modified to include specifications that one is given
control over the applicable copyrights, patents, and trademarks as
necessary for use by the general public.  As someone pointed out, open
source software should meet the definition. Open patents should also meet
this definition.

Aside: This is an example of why you should avoid the term "intellectual
property". There is really no such thing as "intellectual property".  
Instead there are patents, copyrights, and trademarks. Each of these are
unique.  Thinking of a single concept of "intellectual property" leads one
to miss the differences between them.  "patents, copyrights, trademarks"  
is just a few more letters to type, and leads to much greater clarity.
"intellectual property" is a term, like "partial-birth abortion" that was
made up by one side to advance its views. Neither are technical terms.  
Both are misleading.

		--Dean

-- 
Av8 Internet   Prepared to pay a premium for better service?
www.av8.net         faster, more reliable, better service
617 344 9000