Subject: Re: Topic drift Re: An Internet Draft as reference material

From: Vernon Schryver <[email-masked]>
Date: Wed, 27 Sep 2000 21:45:28 -0600 (MDT)

> From: Keith Moore <[email-masked]>

> > It's not merely that I-D's are already archived, albeit inconveniently
> > and obscurely.  
>
> yes, but IETF isn't (yet) maintaining public archives, so IETF doesn't
> (yet) have the liability of breaking its agreement to expire the draft
> after six months.

"expectation", yes.  But "agreement"?  Written where?

> I agree that anyone who expects an I-D to completely disappear is naive.
> But the real issues here are IETF's legal liability and loss of faith.

"loss of faith"?--perhaps.
"legal liability"?--to which bar are you admitted so that you can say
whether the current boilerplate imposes any such liability on the IETF?

> > Essentially all I-D's that are submitted with the
> > expectation something very similar to their contents will become an RFC.
>
> statistics by themselves would make that a fairly naive expectation.
> but it is not really relevant.

I'm not a lawyer, but that observation sounds like an excellent defense
against legal claims of I-D authors unhappy about a new IETF I-D archive.

>                                 there are folks who are quite 
> willing for IETF to publish their documents as RFCs if they are approved,
> but would prefer that their documents not be archived if they are not
> approved.  it's sort of a "either give my document the respect it 
> deserves or you can't have it at all" mentality.  and the author clearly
> has the right to do that.  (though since the days of required boilerplate,
> perhaps only if he limits IETF's rights to publish as an Internet-Draft). 

That expectation might be common, although it says bad things about the
IETF.  Do you honestly think that before the boilerplate that any such
legal liability existed and that courts would not be more likely than not
to laugh at an I-D author with such a complaint?

> > The only "right" of an I-D author that might be violated by the IETF
> > keeping a copy of an I-D as an I-D instead of as an RFC is the "right" to
> > not look like a fool or not have the world know what fraction of the
> > author's ideas are bad or unpopular.
>
> are you willing to accept IETF's liability should a court decide otherwise?

That's an offensive statement because we all know that regardless of the
merits of any suit, there is always a non-zero probability of the wrong
verdict.  Only very deep pockets can accept such liabilities.

Let's turn it around.  Are you willing to accept the legal and criminal
liabilities for the legal advice you are giving?  I'm not a lawyer, but
I've seen regular public comments by people claiming to be lawyers admitted
to at least one state bar saying that for non-lawyers to offer legal advice
is a crime in their state.  Yes, the word they used was crime, and they
make clear they were not talking about of torts.  The specific context is
a mailing list concerning TCPA actions against junk faxers, where the
lawyers frequently say they are not giving advice and warn the non-lawyer
participants against doing so.

Consider the many cases over the years where I-D's were accidentally not
deleted on time.  Are you advising the relevant authors to contact the
ISOC's insurance company with offers to settle their claims against the
IETF?

sheesh!--let's try to keep this intellectually honest and not quite so silly.

Vernon Schryver    [email-masked]

---

From: Keith Moore <[email-masked]>
Date: Thu, 28 Sep 2000 00:08:35 -0400

> "expectation", yes.  But "agreement"?  Written where?

rfc 2026, for instance.

> whether the current boilerplate imposes any such liability on the IETF?

the same one as you are.  obviously IETF should solicit and give due 
consideration to the advice of its legal counsel on this topic; I'm  
merely pointing out (as have others) that there might be a liability here.

> against legal claims of I-D authors unhappy about a new IETF I-D archive.

doesn't follow.  if someone submits an I-D with the naive expectation that 
it will be blessed as an RFC, this has no bearing whatsoever on a legal
claim by an I-D author that IETF broke its rules by putting his I-D
in a permanent archive.

> IETF.  

it says nothing at all about the IETF.  

> Do you honestly think that before the boilerplate that any such

I've seen far worse things done by courts (not to mention the US Congress)
in the name of copyright.
 
> make clear they were not talking about of torts.  

my advice is for IETF to very carefully consider the legal implications 
(along with the other implications) of making old I-Ds available in a 
public archive, given that (a) it has publically stated in its official
process documents and elsewhere that internet-drafts expire after six 
months, and (b) for at least some of these I-Ds IETF may not have 
permission to use them for other than their originally intended purpose.

if stating that is a crime...well, I'm guilty of far worse.

Keith

---

From: Michael Oh <[email-masked]>
Date: Wed, 27 Sep 2000 22:54:48 -0700

Below is a so called representation agreement I received but it has many
ambiguities.  Is this agreement clear to you why there's $25,000.00 fee
assessed prior and why it can be prudently fined for any "unspecified
damages without proof of actual damages" on a call of "any would be damages
or threat of breach of agreement"?  Is this common amongst Silicon Valley
companies?

Sincerely,

Michael Oh

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

THE ADDERLEY GROUP  REPRESENTATION AGREEMENT

 This Representation Agreement is entered into by and between the Adderley
Group (the "Company", including its parents, subsidiaries, successors and
assigns), and                              ("Candidate").  This agreement is
a material part of the consideration given to Company for its representation
of Candidate in seeking to place Candidate in an employment position with a
client of the Company.

1 The purpose of this agreement is to memorialize the terms of
representation between the Company and Candidate pursuant to which the
Company shall use its best efforts to place Candidate in a position of
employment with a client of the Company.  It is understood that at no time
shall Candidate be considered an employee of Company.

2. Company may represent Candidate to clients in Candidate¹s field of
expertise.  Company shall, at its own expense, spend time and effort
researching the job market and contacting potential clients, which efforts
may result in job interviews or placement for the Candidate.  Candidate
understands that Company provides the above-mentioned services on the
Candidate¹s behalf as a potential independent contractor, or an Adderley
Group employee, or employee of client.
 
3. Therefore, in consideration for the services provided herein, Candidate
agrees that he/she shall not directly or indirectly solicit or seek
employment or contractual relationship with any client, individual, or
contact associated with or referred to by Company, with whom Company
arranges representation for Candidate, now or at any time during the six
months following Candidate¹s initial referral to any such client.
 
4. Candidate understands, should Company succeed in placing Candidate in a
position of employment, the Company shall receive compensation for its
services from the client pursuant to an understanding between the Company
and the client.  Candidate  further understands that any payment made by
client to Company constitutes the sole consideration received by employment
with such a client.  Thus, Candidate agrees that he/she shall take no action
and engage in no conduct which has the purpose or effect of interfering
with, inhibiting or preventing payment by a client to the Company for the
Company¹s services.
 
5. Candidate agrees that he/she shall immediately notify Company of any
employment or independent contractual relationships offered to him/her by
any client of Company or any other business entity or concern whose identity
Candidate learns from Company.  This obligation shall extend for a period of
six months after Candidate is referred to any such client or learns of the
client through Company.
 
6. In addition to the agreement set forth above, Candidate agrees that
he/she shall keep in confidence and trust and will not use either
him/herself or disclose to anyone else, either orally or in writing,  any
proprietary information of Company.  For purposes of the agreement,
proprietary information is defined as information developed by or belonging
to Company which has commercial value in Company¹s business and which gives
Company a competitive advantage over other business entities concerns and/or
managers that may be discussed with regard to possible employment or
independent contractual placement of Candidate.  Candidate understands that
this agreement creates a relationship of confidence and trust between the
Company and Candidate with respect to proprietary information and that of
Company¹s clients which may be learned by Candidate while discussing
positions for which Candidate may be qualified.
 
7. Candidate agrees that if he/she is in doubt as to the confidential status
of any information, or if any information is alleged to be proprietary,
Candidate will immediately advise Company management of the question as to
whether such information is available for disclosure and use for the benefit
of Company.
 
8. Candidate certifies that he/she has the legal right to be present and
hold employment in the United States.
 
9. The remedy at law for breach of this agreement being inadequate, Company
shall be entitled, in addition to such other remedies as it may have, the
temporary and injunctive relief for any breach or threatened breach of this
agreement without proof of any actual damages that have been or may have
been caused to Company by such breach.
 
10. In addition to the above, the parties hereto agree that it is very
difficult to ascertain the amount of damages to be incurred by Company
should Candidate breach any of the provisions of this agreement.  Therefore,
it is agreed that as a liquidated damage for each and every breach of this
agreement by Candidate, Candidate shall be liable to Company as and for a
liquidated damage, in the sum of  $25,000.00, per breach.
 
11. This agreement shall be effective as of the date of signing and shall be
binding upon Candidate, his/her heirs, executors, assigns and
administrators, and shall inure to the benefit of Company, its parents,
subsidiaries, successors and assigns.

Date                            "CANDIDATE"

9/27/00
Date                            Dawn Pelham
                            Sr. Account Manager

---

From: John C Klensin <[email-masked]>
Date: Thu, 28 Sep 2000 03:47:04 -0400

--On Wednesday, 27 September, 2000 22:54 -0700 Michael Oh
<[email-masked]> wrote:

> Below is a so called representation agreement I received but
> it has many ambiguities.  Is this agreement clear to you why
> there's $25,000.00 fee assessed prior and why it can be
> prudently fined for any "unspecified damages without proof of
> actual damages" on a call of "any would be 
>...

Michael,

Find a lawyer and get competent legal advice.   The suggestions
you will get from the amateurs on this list are mostly worth
less than what you will pay for them.  Moreover, if any
disagreements occur over the conditions of an agreement like
this one, you will probably be much better off if you have legal
advice and legal people familiar with the agreement before
disagreements occur rather than after.

As a superficial answer to your closing question, it is common
for companies to try to protect themselves to the fullest extent
they think they can get away with.

     john