Subject: Reviewing the IPR Trust agreement (was: Re: [IAOC] Re: A couple of questions about the IETF trust outbound licensing.)

From: John C Klensin <[email-masked]>
Date: Tue, 22 Nov 2005 08:40:15 -0500

Since the comment deadline on the Trust Agreement is rapidly
nearing, a few questions...

(1) Clarification of the impact of section 9.5 so that it
unambiguously applies only to work product of IETF contractors
and not to other IETF-related IPR, especially IPR in standards
documents...

--On Wednesday, 16 November, 2005 10:18 -0800 "Lucy E. Lynch"
<[email-masked]> wrote (on the ipr-wg's list):

>> Who knows what their intent was...
> 
> We are working on clarifing text, but I think this addresses
> your issue:
> 
> DRAFT:
> 
> "It is not the intention of the Settlor to modify the IETF
> community-approved policies and procedures regarding
> intellectual property rights in IETF standards documents and
> other contributions to the standards process. Thus, we confirm
> that rights in IETF RFCs and other standards-related documents
> will continue to be licensed under the terms set forth in BCP
> 78 and any IETF community-approved successors or modifications
> thereto, and that Section 9.5 of the IETF Trust Agreement
> should not be interpreted to supersede, contradict or impose
> additional restrictions on such licenses."

The purpose of this text, as suggested by notes from IAOC
members in various conversations and to the IPR list, is to
ensure that the provisions of 9.5, and the requirement for
agreement by both Settlors to agree to any changes in 9.5, are
not applied to standards-related materials developed by IETF
participants and to do so without having to reopen the Trust
Agreement itself.  Handling it separately may be reasonable: I
don't want to second-guess either the IAOC or Counsel on that
subject.

However, it is a key part of the overall agreement context.
Without either the text proposed above or its equivalent, or
modifications to the Trust Agreement itself, it appears that 9.5
could be used to attempt considerable mischief, perhaps to the
extent that it would be appropriate to reject the entire
agreement.

So...

Has this text been agreed to by the IAOC and both Settlors?  If
not, will the IAOC assure the community that the Trust Agreement
will not be signed until and unless such text is agreed to by
all relevant parties?

(2)  Some of the language in Schedule A also resulted in some
discussion with the IAOC and a commitment for text from the
Settlors.  "Current" and "historical" are poorly-defined.
Schedule A can be read to suggest that any rights that might
exist to historical materials transfer to the Trust (i.e., to
the IETF) only after a specific retrieval process is exercised,
even if those material are generally available before the Trust
comes into being.  It was my understanding that, through some
mechanism to be chosen by IAOC and Counsel and worked out with
the Settlors, the Settlors would either 

	-- transfer to the Trust any rights which they might
	have had, or
	
	-- explicitly disclaim any right or intent to enforce
	any such rights

in any materials that we legally obtained and that are generally
available (or "not under the exclusive control of the Settlor"
if that sort of language would be preferable legally).

Without this, we run some risk that one of the Settlors would
claim ongoing rights in, e.g., published IETF Proceedings,
published minutes or tracking data that are old enough to be
"historical", I-Ds, and similar materials.   To the extent to
which the purpose of the Trust arrangement is to obtain and
clarify the IETF's rights to these materials, the agreement is
not satisfactory if it opens up new opportunities for disputes.

But text clarifying the above, either by modification of the
Schedule or by letters from the Settlors, has yet to appear on
the IAOC web site or, as far as I have been able to tell,
elsewhere.

So...

Is there such text?   Will the IAOC commit to not signing this
agreement until such text is in place, the community has had an
opportunity to review it, and it has been agreed to as necessary?

thanks,
    john

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---

From: "Lucy E. Lynch" <[email-masked]>
Date: Wed, 23 Nov 2005 10:15:55 -0800 (PST)

John -

> will not be signed until and unless such text is agreed to by

This text is still under discussion, several parties have been
out of reach since IETF 64, and active review of the text began
this week.

I'd like to extend the Consensus call until 12/2/05 in order to
settle this issue and will announce the extension to the lists
today.

The IAOC is committed to resolving this issue, and we will post
the final text ASAP.

> the IAOC web site or, as far as I have been able to tell,

Again, under discussion. Clarifying text may not be the answer here -
we will publish an inventory of the data moved to the trust and will
update the FAQ with text clarifying the understanding of all the
parties regarding historical data that is stored in difficult to
retrieve formats. Note that anything currently available via IETF
servers (current or not) will be included in the transfer.

> opportunity to review it, and it has been agreed to as necessary?

see above.