Subject: Flaw in IPR Setup and IETF BCP78 with regard to IPR's

From: "TS Glassey" <[email-masked]>
Date: Fri, 18 Jul 2008 08:43:51 -0700

Russ - let me cut and paste the relevant BCP78 content here about what
happens when the IETF is told "NO, you cant have these rights" in a formal
IPR form.

In the US the United States First Amendment allows for
certain types of free speech to occur but a group all working on vetting a
technology is a stretch. So if someone submits something that includes "Y"
or a requirement to be able to build derivatives of "Y" then the IETF ***
MUST *** own the rights to do that since it is formally conveying those
rights to others.

If the IETF's incoming conveyance is flawed then so are the outgoing
licenses of any derivatives as well. If you doubt this ask your counsel. The
question  is where does this say so and the answer is section 3 of BCP78...
read on.

What you will find by a plain-text reading of the rules is that without an
assignment of derivative rights, the IETF cannot take on any new genesis
which violates those rights because it wont have:

    1)    The license necessary to release the core underlying IP in the
already issued patent-scope. It cannot vet technology it doesn't own with
others for the specific purpose of creating a derivative because its
processes mandate certain legal status be conveyed to the IETF. In an
instance where the IETF is told it cannot have those rights it simply cannot
start any efforts therein based on what it has to do to create standards.
This is pretty obvious to anyone who models the IETF's practice and
workflow.

Otherwise this directly violates the wording of BCP78 3.1 where we read:

3.1.  General Policy

   In all matters of copyright and document procedures, the intent is to
   benefit the Internet community and the public at large, while
   respecting the legitimate rights of others.

So then the IETF has a stated responsibility to 'respecting the legitimate
rights of others' as defined in the first half of the Unholy Twins
(BCP78 and BCP79). This is the operating policy of the IETF so when it is
notified that someone else has issued patents it has a formal obligation now
to stay out of any actions which will cloud or alter those rights or the
value of that IP.

The IETF probably becomes liable as well for those damages as do the parties
who are acting therein because hey, there is no "hold harmless" agreement in
the process. Funny that, I seem to recall asking for one to be added... and
Harald's threatening to have me removed for it too... It gets better though.
Trade Secret's or work's in process cannot be published by the IETF
either under BCP78 3.2 which reads:
-------------
3.2.  Confidentiality Obligations

   No information or document that is subject to any requirement of
   confidentiality or any restriction on its dissemination may be
   submitted as a Contribution or otherwise considered in any part of
   the IETF Standards Process, and there must be no assumption of any
   confidentiality obligation with respect to any Contribution.
------------
So if an individual submitted a Trade Secret for publication the IETF would
have a constructive responsibility to prevent the publications of that
content too one would think. Hey but how would someone tell the IETF about
areas that Trade Secret protected IP may exist. That probably would be an
IPR, one much like IPR201 for instance.

Also, there is the issue of that if the parties submitting the content do
not own all of it free and clear or have specific release to convey to the
IETF, then per the following, they simply cannot submit that content to the
IETF and the IETF may not publish it either. Section 3.3 reaffirms this by
describing the pass through granting of rights and permissions. And while
submitter's may own their own words, if they don't own the technology
rights to the core IP they cannot convey those to the IETF to allow its
mandatory production of the test-case products to meet the standards
requirements. See BCP78's Section 3.3 below:
------------
3.3.  Granting of Rights and Permissions

   By submission of a Contribution, each person actually submitting the
   Contribution, and each named co-Contributor, is deemed to agree to
   the following terms and conditions, and to grant the following
   rights, on his or her own behalf and on behalf of the organization
   the Contributor represents or is sponsored by (if any) when
   submitting the Contribution.
------------
Again, an IPR filing would constitute constructive notice of those rights
one would think.

So without the core release, the IETF's processes are
stymied. In the instance of the GEOPRIV WG the patent on securable
geospatial controls at the object level and its notice in IPR201 should have
been accepted or published since the IETF cannot resolve getting our patent
rights. (see #2 below)

The denial of rights directly effects publishing (i.e. the IETF's Publishing
Agent) too since the people submitting the work for publication have
to convey rights they wont own in that work.

NoteWell barfs on this too, no real vetting of anything that the
IETF doesn't hold title to can be done here either, or so it would seem. The
107 Exemption is also questionable. The IETF produces an IP. And in today's
world IP's have a demonstrable value in dollars. That means any number of
things -

    2)    The ability to license the parties who want to build the
derivative stack instances to meet the IETF's mandatory "two independent
implementation's" Requirement.

Again we run into that pesky issue that prevents the IETF's process from
working on any IP it doesn't hold either rights against in all instance, or
title to. This isnt rocket science its simple workflow and regulatory
analysis.

        C) unless explicitly disallowed in the notices contained in a
          Contribution [as per Section 5.2 below], to prepare derivative
          works (other than translations) that are based on or
          incorporate all or part of the Contribution, or comment upon
          it, within the IETF Standards Process.  The license to such
          derivative works not granting the ISOC and the IETF any more
          rights than the license to the original Contribution,

So when the core IP is proscribed through an IPR this requirement cannot be
met either can it? My point is that no GEOPRIV WG should have been able to
be formed nor should *** ANY *** of their RFC's been published since they
all violate the IPR201 notice's "refusal to convey the core IP rights to the
IETF".

---
Personal Disclaimers Apply

TS Glassey

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