Subject: RE: IPR-WG

From: "Allen Lo" <[email-masked]>
Date: Thu, 20 Mar 2003 08:29:56 -0800

Can you clarify why you feel that way?  Do you feel that the problems raised on the mailing list and at the SF meeting don't exist?  And why do you feel further investigation should not be pursued?

-----Original Message-----
From: Joe Zebarth [mailto:[email-masked]]
Sent: Thursday, March 20, 2003 7:41 AM
To: [email-masked]
Subject: IPR-WG 

I have been following this email thread and I was at the IETF IPR-WG meeting. 

To date based on what I have read, heard and saw in regards to this subject matter area, I still see no requirement that would necessitate a recharter of the IPR-WG at this time.  Thus I am taking this opportunity to go on record saying that I do not support a recharter of the IPR-WG at this time.

Kindest regards, 

Joe Zebarth 
Dept. 6L41 
ATI Strategic Standards 
Nortel Networks (Canada) 
Phone: +1 613 765 8481

---

From: Pekka Savola <[email-masked]>
Date: Thu, 20 Mar 2003 20:17:59 +0200 (EET)

On Thu, 20 Mar 2003, Allen Lo wrote:
> Can you clarify why you feel that way?  Do you feel that the problems
> raised on the mailing list and at the SF meeting don't exist?  And why
> do you feel further investigation should not be pursued?

One may gather some data by searching for "nortel" under
http://www.ietf.org/ipr and looking at the disclosures.

(All seem to be RAND or RAND++ to me..)

-- 
Pekka Savola                 "You each name yourselves king, yet the
Netcore Oy                    kingdom bleeds."
Systems. Networks. Security. -- George R.R. Martin: A Clash of Kings

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From: "Lawrence E. Rosen" <[email-masked]>
Date: Thu, 20 Mar 2003 12:04:21 -0800

To: The Open Source and Free Software Community

Until my eyes grew dim, I reviewed the long collection of patent
licenses on http://www.ietf.org/ipr.  All I saw were RAND or worse.
While some IETF members may have a preference for RF patent licensing,
clearly that standards organization isn't getting any RF patent licenses
worthy of the name.  

The situation in IETF is far worse than I feared.  The current IETF
patent policy is leading to all-RAND-all-the-time.  

As I understand the GPL, none of the IETF standards that include that
patented technology can be implemented under the GPL because of its
Section 7.  

Any open source projects implementing IETF standards should carefully
review the IETF IPR list to ensure that they have proper patent
licenses.  

Anyone who is concerned that the current IETF patent policy has allowed
this situation to occur should contact IETF and request that
organization to revise its patent policy.  

/Larry Rosen
General counsel, Open Source Initiative
Rosenlaw & Einschlag, a technology law firm
3001 King Ranch Road
Ukiah, CA 95482
707-485-1242 * fax: 707-485-1243
[email-masked]
www.rosenlaw.com

---

From: Keith Moore <[email-masked]>
Date: Thu, 20 Mar 2003 15:42:37 -0500

> clearly that standards organization isn't getting any RF patent 

I suspect this is a skewed sample; most of the technology that is 
available via RF licenses probably isn't posted there because the 
existence of an RF license meant that no WG needed to devote time to 
negotiating a RAND license.

Of course it would be better if all of the licenses were documented on 
the IETF web page.

---

From: Scott W Brim <[email-masked]>
Date: Thu, 20 Mar 2003 16:11:22 -0500

> (All seem to be RAND or RAND++ to me..)

Please give specific evidence that this is a problem?
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From: Eben Moglen <[email-masked]>
Date: Thu, 20 Mar 2003 15:39:01 -0500

On Thursday, 20 March 2003, Lawrence E. Rosen wrote:

That's my conclusion as well, on the basis of a less eye-dimming
sampling approach taken last winter.  I'm very grateful to Larry for
confirming my conclusion on the basis of an exhaustive study.

This is further than I would go.  Section 7 prohibits distribution
under GPL if you cannot fulfill the requirements of the license
because of other conditions *imposed* on you by, among other things, a
judgment of patent infringement, interim measures short of judgment,
such as a preliminary injunction, or contractual limitations such as
non-disclosure agreements or patent licenses.  But you are not unable
to distribute under GPL unless those requirements have been *imposed*.
Until a particular party distributing GPL'd code has either accepted a
license whose requirements are incompatible with GPL or has been
ordered by a court of competent jurisdiction to do or refrain from
doing in a fashion incompatible with GPL, there is no direct conflict
with the requirements of the license, and no requirement to refrain
from distribution.  With regard to patents, in particular, no one
*ever* has an obligation to refrain from making, using or selling
technology that *may* practice patent claims solely because someone
somewhere has taken a patent, claims to have a patent, or even
publishes a license.  Only the demand that you in particular take a
license or cease infringing triggers theoretical liability under US
patent law.  Whether there can be liability for damages for the period
before such notification is another question, legitimately of
importance to those who commercially distribute free software, but not
ordinarily of significance to those who develop only, or who
distribute non-commercially.

Moreover, patents are not global, only local.  To say that we cannot
*develop* under GPL because a patent exists in country X, and a
license has been published there to which those making, using, or
selling in country X *might* be asked to subscribe would go much too
far.  That situation certainly does not prevent development elsewhere,
and distribution under GPL can certainly proceed.

None of this changes our fixed concern with patents embodied in
standards on GPL-incompatible terms.  They're bad, and we're fighting
hard.  But we need not refrain from releasing code under GPL solely
because someone is working a patent shakedown.  The license is more
robust than that, and indeed--for reasons I've described elsewhere--
section 7 can actually provide important mutual defense against
assertions of supposed patent rights, but it can only do so if code is
licensed under it.

Best to all,
Eben

-- 
 Eben Moglen                       voice: 212-854-8382 
 Professor of Law                    fax: 212-854-7946       moglen@
 Columbia Law School, 435 West 116th Street, NYC 10027     columbia.edu
 General Counsel, Free Software Foundation   http://moglen.law.columbia.edu
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From: John Cowan <[email-masked]>
Date: Thu, 20 Mar 2003 15:58:40 -0500

Eben Moglen scripsit:

> The license is more

Can you give us a pointer to these reasons?

-- 
LEAR: Dost thou call me fool, boy?      John Cowan
FOOL: All thy other titles              http://www.ccil.org/~cowan
             thou hast given away:      [email-masked]
      That thou wast born with.         http://www.reutershealth.com
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From: Pekka Savola <[email-masked]>
Date: Thu, 20 Mar 2003 23:39:39 +0200 (EET)

> Please give specific evidence that this is a problem?

Depends on whether you consider people who [try to] practise cashing off
on standards saying "no, don't change status quo, there is no problem at
all [I like my money well enough!]" -- and considering these people
inpartial -- a problem or not.

Same with Keith's question at the IESG plenary last night.  What use is it
to ask whether people are advocating their employer's interests (to
smaller or lesser degree)?  Do you _really_ believe people violating the
process would say so (or in some cases, admit it even to themselves!)?

---

From: Zenaan Harkness <[email-masked]>
Date: 21 Mar 2003 10:08:09 +1100

> Please give specific evidence that this is a problem?

There are two approaches to "the IPR issue".

One is to do nothing if there are few (none?) current cases where RAND
licensing has limited or excluded Open Source/ Free Software (OSFS)
implementations of a standard. This line of reasoning is currently being
pushed pretty hard by some people on this list.

The alternative is approach is to say, there is at least some evidence
(eg. programmers behind bars) to show that there are dangers mounting
when it comes to coding OSFS software, due, specifically, to IPR issues,
and that, rather than sitting around passively waiting for enough
problems to arise to "justify" doing something about it, that it is in
our best interest to get off our ass and do something now. I am of this
view.

To have a lax IPR policy requires ongoing vigilence in all IETF WGs, all
the time. To "work around" problems after the fact is always more work
than ensuring the problem doesn't occur in the first place (as much as
possible).

To create clear guidelines of prudent (IPR) policy is a sensible thing
to do.

zen

-- 
Mr Zenaan Harkness, Manager, VIDC
Phone: +678 25 151  Fax: +678 25 178  Mobile: +678 45 179
Please respect the confidentiality of this email.

---

From: Zenaan Harkness <[email-masked]>
Date: 21 Mar 2003 12:09:47 +1100

On Fri, 2003-03-21 at 11:13, Joel M. Halpern wrote:
> I understand that there is some reason for concern.
> What noone has answered is that in fact there are serious risks of negative 
> consequences to the proposed changes.
> Given that the changes are drastic, and the risks associated with them 
> significant, it would seem to require something more than a small to 
> moderate current risk before one should undertake the change.

Possibly. I personally feel, perhaps irrationally but it sure doesn't
feel that way, that due to the rather public cases involving patents,
the DMCA, etc, over the last couple of years, that the potential threat,
particularly with regard to standards, is both very real, and
significant.

> The fact is that there are open implementations of many IETF 
> standards.  There are open implementations even of some IETF standards 
> against which there have been IPR claims.
> Hence, the evidence is that we do not have a serious problem.

It doesn't make me comfortable to know that open standards, with open
implementations, could potentially have cases brought against them. I
would not feel comfortable building infrastructure on such code, in a
community or a corporate project. It just doesn't seem prudent. And I
would like to see an attempt to minimize the possibility of further such
circumstances. That seems prudent to me.

> Yours,
> Joel M. Halpern
> 
> At 10:08 AM 3/21/2003 +1100, you wrote:

---

From: Eben Moglen <[email-masked]>
Date: Thu, 20 Mar 2003 22:34:39 -0500

On Thursday, 20 March 2003, John Cowan wrote:

  

A couple of people having asked off list as well, let me put the whole
matter in a nutshell:

Under US patent law, injunctions against distribution of infringing
goods are scarce as hens' teeth.  The adequate remedy is assumed to be
royalties by way of damages.  In the free software context, that means
independent developers and non-commercial distributors, both of whom
don't as a rule charge for their code, are pointless defendants to
sue.  The people who get hassled are the large commercial distributors
who make money and who therefore are potential sources of royalties.

Those enterprises, however, usually have substantial patent
inventories of their own.  Therefore, they don't pay royalties either;
they cross-license.  So let's suppose that (naming someone at random)
Microsoft has a patent that reads on some standard and wants to assert
its patent against, say, the Linux kernel's implementation of the
standard.  Suing individuals who don't charge won't work, so they go
to (again, picking a name at random) HP.  Under ordinary
circumstances, HP would cross-license on non-sublicensable RAND terms,
using its own patent portfolio to make a separate peace and leaving
the rest of us to hold the bag.  *BUT* not with section 7 of GPL.  If
HP accepts that RAND license, it has conditions imposed on it
incompatible with GPL, and therefore must stop distributing the Linux
kernel.  The only terms it can accept are GPL-compatible terms, and if
those terms are available to it, they are de facto available to all.
If it can't get a GPL-compatible license, HP has no choice but to
defend the infringement action, which it (unlike most of the rest of
us) has resources to do.

In this way, by preventing separate-peace deals among fat cats, GPL
section 7 actually ensures vigorous defense of patent assertions
against free software.  Unlike patent retaliation and "mutual defense"
provisions, which have some side effects of their own and which only
work against patent plaintiffs who also distribute free software, GPL
section 7 does more than discourage the assertion of claims; it
actually mobilizes the relevant resources by creating incentives for
well-funded potential *defendants* to do the right thing.

This approach to patent defense is--if you'll pardon a slight
professional joke--novel and non-obvious.  It's one of the subtleties
of GPL.  I'm not sure it's all we need; Richard Stallman and I are
still considering the full range of options for GPL v3.  But I think
it deserves careful consideration by those who are trying to decide
what license to use with one eye on the egregious problem of software
patents.

Best to all,
Eben

---

From: John Cowan <[email-masked]>
Date: Thu, 20 Mar 2003 23:12:06 -0500 (EST)

Eben Moglen scripsit:

> royalties by way of damages.  

IANAL, but it seems to me that that is the precise situation when the
plaintiff would ask for an injunction in lieu of damages, since so many
of us are not only royalty free but judgment proof.

-- 
John Cowan           http://www.ccil.org/~cowan              [email-masked]
To say that Bilbo's breath was taken away is no description at all.  There
are no words left to express his staggerment, since Men changed the language
that they learned of elves in the days when all the world was wonderful.
        --_The Hobbit_
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