Subject: Re: I-D ACTION:draft-lyons-proposed-changes-statement-01.txt

From: "Patrice Lyons" <[email-masked]>
Date: Thu, 21 Oct 2004 08:10:07 -0400

Joel,

Thanks for your comments.

First, incorporation of the IETF.  While there are many reasons why
incorporation of an association is desirable, one important reason for a
technical association like IETF to incorporate is the substantial increase
in exposure to potential liabilities arising from conflicting patent claims
that has arisen over the last few years. In this context, there has been
some talk of donation recently of patents for IETF, particularly a group
of patents, for IETF purposes at little or no cost.

What happens if a group of pooled patents is donated to IETF by the very
organization that also controls funding for the IETF?  What happens if such
an organization is under no direct control by the IETF and takes steps that
embroil the IETF in patent litigation?  Where an organization has a Board
of Directors or Trustees that are drawn for the most part from a corporate
group that may have some direct interest in seeing say a patented
architecture dominate any architecture or architectural elements viewed as
competitive, and decides to use  funding as a mechanism to influence IETF
decisions, say withholding funds from the IETF that would enable the IETF
to retain a patent attorney to mount a legal challenge, how is the IETF to
continue to operate effectively in the public interest?

In posing these questions, a further suggestion comes to mind:
perhaps the proposed new IETF Foundation could also receive patent
donations. Then the IETF could independently consider, in accordance
with the IETF procedures, whether or not to accept such donations
and to establish a working group(s) to further vet them.  But this may be
a bit complicated to get into at this stage of the dialogue.  The basic
steps of filing incorporation papers -- really not expensive or time
consuming -- and encouraging the establishment of the proposed IETF
Foundation appear to be a reasonable way forward that wouldn't
require much effort.

Second, you raised a question about ISOC. While my comments didn't single
out ISOC, if ISOC is viewed as a fundraising entity or an actual source of
funds for the IETF, and is also the organization charged with hiring an
Administrative Director for the IETF and supervising his/her efforts such
as contracting with third parties for IETF support services, I would again
assert:  where are the checks and balances.  The functions of funder and/or
fundraiser should be separate from control of what consitutes a CEO for
the IETF, particularly since the current plans being discussed would appear
to relegate the IETF oversight of such functions to an intermediary group.
What I term the IETF Executive Director would be hired by the IETF
itself and remain under its direct supervision (please not:  this is a
different role from the current job description of the Executive Director
of the IETF Secretariat).

Regards,

Patrice
P.S. I've just subscribed to the IETF discussion list and, although I've
cc'd it on my reply to you, please share my comments with the list in
the event I'm not listed yet.  Thx.
----- Original Message ----- 
From: "Joel M. Halpern" <[email-masked]>
To: <[email-masked]>
Sent: Wednesday, October 20, 2004 6:00 PM
Subject: Re: I-D ACTION:draft-lyons-proposed-changes-statement-01.txt

> Many of the items in this draft (and its earlier version) are very
> interesting and helpful.
>
> However, I am missing a step in your reasoning.
> You state "it appears desirable for ... to reconsider the current legal
> status of the Internet Engineering Task Force."  I understand your
> statement that establishing a corporate structure is not really a very
> difficult or expensive step.  (I think given this community, establishing
> such a structure that the community is happy with may be hard, but I
> understand that the legal side may well not be difficult.)
> What I am missing is the supporting argument for why it is important to
> make such a change at this time.  Given the many problems the organization
> is currently facing, it would seem that spending energy examining / making
> this sort of change would have to be driven by a significant benefit.  It
> is possible that you did spell out this benefit, and I missed it reading
> through this document.
>
> On a related note, you seem to be arguing that a new funding body,
> distinct from ISOC, should be created.  Given that ISOC sees funding the
> IETF as one of its primary roles, I would wonder why we would want to
> duplicate that function.
>
> Yours,
> Joel M. Halpern
>
> At 10:35 AM 10/20/2004 -0400, you wrote:
>>A New Internet-Draft is available from the on-line Internet-Drafts
>>directories.
>>
>>
>>         Title           : IETF:  Proposed Organizational Changes
>>         Author(s)       : P. Lyons
>>         Filename        :
>> draft-lyons-proposed-changes-statement-01.txt,.pdf
>>         Pages           : 0
>>         Date            : 2004-10-19
>>
>>This memo outlines the nature of the Internet Engineering Task Force
>>(IETF) as an unincorporated association, reviews some history of the
>>IETF Secretariat relevant to the current structure of the organization,
>>and proposes steps that might be taken to move forward in the interest
>>of the Internet community more generally. Since the IETF serves as a
>>focal point in the technical evolution of the Internet infrastructure,
>>it is important that any organizational changes take into account the
>>wider public interest. Considerations of who provides support to the
>>IETF hinge on the legal status of the IETF itself. Steps should be
>>taken to clarify this matter as a first priority.
>>
>>A URL for this Internet-Draft is:
>>http://www.ietf.org/internet-drafts/draft-lyons-proposed-changes-statement-01.txt
>>

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

---

From: Harald Tveit Alvestrand <[email-masked]>
Date: Thu, 21 Oct 2004 16:54:33 +0200

--On torsdag, oktober 21, 2004 08:10:07 -0400 Patrice Lyons 
<[email-masked]> wrote:

> In this context, there has been

could you give a little more pointer here, please?

All the talk I've heard recently is about free/no-paperwork licensing of 
patents for use in implementing IETF protocols - I haven't heard anything 
about giving patents to the IETF.

But then, I am not party to all conversations.

                    Harald

---

From: Brian E Carpenter <[email-masked]>
Date: Thu, 21 Oct 2004 22:41:05 +0200

Patrice,

I'm extracting here soem of your comments to Joel and some
of those to Margaret, because I think there is a single
underlying point to be discussed:

Patrice Lyons wrote:
...
 > While there are many reasons why
> embroil the IETF in patent litigation?  

...
> assert:  where are the checks and balances.  
...

> Apart from the provision of routine IETF support services, fundraising for
> the IETF is a potential source of conflict of interest. To minimize the
> possibility that a contributor of funds for IETF purposes might be perceived
> as having an undue influence on IETF standards setting work, I have proposed
> that a new, separately incorporated and independent entity called the IETF
> Foundation be established to manage the IETF fundraising activities.

...
> In any event, the IETF retains the fiduciary obligation to supervise and
> control any support services provided to the IETF by third parties,
> including any possible new administrative entity that may be established
> to serve the IETF community. While supervisory responsibility for certain
> support services (whether under contract or simply volunteer) may be
> delegated by the IETF to others, the obligation to provide general oversight
> for such activities resides ultimately with the IETF leadership, in
> particular the IESG.

Now we agree that the IETF *is* an unincorporated association, and there
was very strong consensus in earlier discussions that we don't want to
change its fundamental nature and its open door policy. If that is
granted, then the leadership (i.e. the IESG and IAB) are as far as I can
see under no formal responsibility whatever - there's just a social
contract in place (and if that breaks down, we can all go home anyway).
So the *fiduciary* responsibility for supervision and control
and for integrity in fund raising and fund disbursement *has* to lie
with a body corporate in some jurisdiction. That body can join the
IETF social contract by agreeing to accept policy and technical
direction form the IETF leadership, but that doesn't move the
legal responsibility. And that being so, I just don't see the conflict
of interest - if the body disburses funds for purposes other than
what they were collected for, or breaks its social contract
with the IETF, that's a breach of responsibility, but that can
happen in any scenario whatever.

Patent donations don't affect this - a patent is an asset and
so it's really just like more money. Some poison pill would be
needed to ensure that the patent can never be misused, but again
I don't see conflict of interest.

I just don't see how any of this argues for more than one
body corporate.

     Brian

---

From: "Patrice Lyons" <[email-masked]>
Date: Sat, 23 Oct 2004 14:08:51 -0400

Brian,

What corporate (or for that matter unincorporated body) are you talking 
about here?  Even if the IETF remains an unincorporated entity, it should 
retain the fiduciary responsiblity for overseeing its activities going 
forward.  Incorporation wouldn't change this basic obligation.

Regards,

Patrice

---

From: Brian E Carpenter <[email-masked]>
Date: Mon, 25 Oct 2004 14:49:59 +0200

Patrice,

I don't want to argue law with a lawyer :-)

However, in my experience on a couple of non-profit Boards,
and in reviewing some experience of a family member in a
completely different unincorporated association in the UK,
I thought I understood that both fiduciary responsibility
and potential for conflict of interest can only arise
in a budget-holding organization. The IETF isn't one of
those - it has delegated its budgets elsewhere.

    Brian

Patrice Lyons wrote:
> about here?  Even if the IETF remains an unincorporated entity, it 
> should retain the fiduciary responsiblity for overseeing its activities 
> going forward.  Incorporation wouldn't change this basic obligation.
> 
> Regards,
> 
> Patrice
> ----- Original Message ----- From: "Brian E Carpenter" <[email-masked]>

---

From: "Patrice Lyons" <[email-masked]>
Date: Tue, 26 Oct 2004 15:50:07 -0400

Harald,

Thanks for sharing your thoughts about this.  As I recall, at a meeting with
you and Leslie in January 2004, you told me about a proposal under
consideration that involved the donation of a patented architecture to the
IETF.  You mentioned a group that wanted to donate the technology,
but I don't know if that has progressed in the interim.  By donation,
I mean such things as pooling patents in order to give technology
to the IETF at little or no cost (whether or not under license).  ISOC
was mentioned in this context. This came up again informally during
a coffee break at the ISOC Advisory Comm. meeting in Barcelona
where I recall some discussion of possible interoperability testbeds
for purposes of IETF architecture deliberations.

It was my understanding that one motivating factor in the admin.
restructuring process was the need to have a corporate entity to
receive such donations of patents;  ISOC also has some interest in
this. While this notion hasn't been developed to any extent, as far as
I am aware, there is an important kernel of thought here that needs
to be addressed.  Since the late 1980s when I first became involved in
considering  IPR policies for the IETF, I have been well aware of the
need to be flexible with respect to copyright, patent and other
rights and interests in an IETF context. Again, checks and balances
are essential here.

Regards,

Patrice

----- Original Message ----- 
From: "Harald Tveit Alvestrand" <[email-masked]>
To: "Patrice Lyons" <[email-masked]>; "Joel M. Halpern"
<[email-masked]>
Cc: <[email-masked]>
Sent: Thursday, October 21, 2004 10:54 AM
Subject: Re: I-D ACTION:draft-lyons-proposed-changes-statement-01.txt>

---

From: Harald Tveit Alvestrand <[email-masked]>
Date: Tue, 26 Oct 2004 22:44:52 +0200

> for purposes of IETF architecture deliberations.

Thank you for the clarification - I had understood this mechanism to be a 
granting of licenses under common terms to the members of the IETF 
community, with the IPR owners keeping all ownership rights - but I've 
never built a patent pool, so it's entirely too possible that I 
misunderstood.

                      Harald