Subject: RE: The IETF Trust License is too restricted

From: "Hallam-Baker, Phillip" <[email-masked]>
Date: Mon, 5 Dec 2005 08:40:16 -0800

> From: Brian E Carpenter [mailto:[email-masked]] 

> Its purpose is to give the IETF control of its own IPR, which 
> has previously been held by 3rd parties. (That's not the 
> legal statement of purpose in the formal Trust Agreement.)
> 
> What we then do once we have such control is then something 
> we can discuss and reach consensus on. Part of that 
> discussion is already happening in the IPR WG.

That is an interesting approach.

The reason I raised the point was that I suspect that there will be many
members of the IETF community who would prefer to have the debate on use
before they have surrendered control.

The IETF constitution is not one that lends itself well to the 'trust
me' approach. 

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Ietf mailing list
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---

From: Brian E Carpenter <[email-masked]>
Date: Tue, 06 Dec 2005 10:42:46 +0100

> before they have surrendered control.

Right now we have agreement from the Settlors of the Trust, which is
what we need to get started, and refers only to IPR that those
Settlors already own. So I don't see your point.

    Brian

---

From: Simon Josefsson <[email-masked]>
Date: Tue, 06 Dec 2005 13:07:50 +0100

> before they have surrendered control.

I agree.

It seems this process is being rushed through before all issues are
settled or even discussed.

I'd feel more comfortable if the outbounds right issue was settled,
before all IPR is signed away to some external body that, to me, it
seem unclear whether the IETF has total control over.

The license text that went out for final review was clearly
insufficient, and would have made it impossible for the IETF community
to fix things later on.  The IETF would not have been in control of
the IPR if that license would have passed.

I stress this: All past IETF IPR would appear to have been lost and
out of control for the IETF community if the initial legal document
had passed.

Giving the community 3 additional days to review the revised legal
document, to identify similar problems, is ridiculous.  (Brian's
announcement of the updated section 9.5 was posted on December 5th,
and the deadline extended to December 8th.)

The problem raised and the fix was non-trivial.  The normal procedure
when that happens for a technical document would have been to have
another last call.  It may have been wise to follow the RFC 2026
procedures when attempting to reach consensus on this work.

Please, give the community more time to review this.

Thanks,
Simon

---

From: Harald Tveit Alvestrand <[email-masked]>
Date: Tue, 06 Dec 2005 13:55:19 +0100

> seem unclear whether the IETF has total control over.

Remember that it's signed away FROM bodies that the IETF has NO control 
over.

---

From: Brian E Carpenter <[email-masked]>
Date: Tue, 06 Dec 2005 14:50:35 +0100

>>before they have surrendered control.

As I already pointed out, the rights we will get when the Trust
is signed into existence are only the rights that the Settlors
currently have; they will be moving from two bodies over which
the IETF has *no* control (CNRI and ISOC) to a body whose Trustees
are appointed according to RFC 4071. Phill's argument doesn't compute.

> settled or even discussed.

I imagine we'll be discussing IPR issues for the next twenty years
at least. What we are doing *now* is moving some of the IPR into
the IETF's control.

> seem unclear whether the IETF has total control over.

That is completely wrong. We are moving *some* IPR, not all, from bodies
where the IETF has no control to a body that exists only for the benefit
of the IETF.

> the IPR if that license would have passed.

That isn't a license, it is a Trust Agreement that sets boundary
conditions. The community objected to one of the boundary conditions,
and we fixed it. That was the purpose of the community review.

> out of control for the IETF community if the initial legal document

Absolutely not. That is completely untrue. There was an unintended side
effect on derivative works, and we fixed it. If we hadn't been able to
fix it in the Trust Agreement, we would have found another way to fix it.

> and the deadline extended to December 8th.)

Yes, well, some of us take weekends sometimes. Also, this point was
raised with the IAOC during the Vancouver meeting; we didn't rush
the fix.

> Please, give the community more time to review this.

Unfortunately, we need to close on these documents before the
holidays. Sometimes, we have to work 'just in time.' I would
have been much happier if we could have exposed the draft
several months earlier, but it just wasn't possible.

     Brian

---

From: Simon Josefsson <[email-masked]>
Date: Tue, 06 Dec 2005 14:51:10 +0100

Harald Tveit Alvestrand <[email-masked]> writes:

> Remember that it's signed away FROM bodies that the IETF has NO
> control over.

My point was that before drafting what conditions the IETF Trust
should operate under, we should know what kind of permissions we want
the IETF Trust to be able to grant.

The updated text now permit the IETF Trust to grant rights to Standard
documents without requiring the licensee to grant back all rights to
derivative works.

When looking into what copying conditions the IETF should grant to
third parties, we may reach consensus on giving third parties the
rights to other Contributions as well, not only RFC and I-Ds.  The
IETF Trust can never, under the current legal document, give any third
party that license.

I believe the IETF Trust should be able to grant unrestricted
perpetual sub-licenses for all rights to third parties.  The IETF
Trust doesn't have to use that right, but should be able to, if the
IETF community decide if that is what we want.

Thanks,
Simon

---

From: Simon Josefsson <[email-masked]>
Date: Tue, 06 Dec 2005 15:17:01 +0100

Brian E Carpenter <[email-masked]> writes:

>>>> Its purpose is to give the IETF control of its own IPR, which has
>>>> previously been held by 3rd parties. (That's not the legal
>>>> statement of purpose in the formal Trust Agreement.)
>>>>
>>>> What we then do once we have such control is then something we can
>>>> discuss and reach consensus on. Part of that discussion is already
>>>> happening in the IPR WG.
>>>
> are appointed according to RFC 4071.

That is true, but irrelevant to my point.

The IETF Trust should be allowed to grant licenses to their IPR
without requiring the licensee to grant back all rights to derivative
works.  The IETF Trust doesn't have to use that ability.  For most
licenses, requiring the licensee to contribute back all rights to
derivative works would be useful.

> at least. What we are doing *now* is moving some of the IPR into

No, some of the IPR that is moved into the IETF Trust will, under the
updated IETF Trust license, not be under IETF's control.  For example,
the IETF cannot grant a third party the right to use IETF IPR without
giving up all rights to derivative works.  I know RFC/I-D's are
excepted now, but there are other material which the IETF may decide
to grant third parties rights to.

> where the IETF has no control to a body that exists only for the benefit

Right.  And the license in which the IETF Trust should permit all
things the IETF may decide to do.  Otherwise we lose the control over
the IPR.

> conditions.

That's hair splitting.  The boundary conditions imply what flexibility
the license can have.  If the boundary conditions are too narrow, all
licenses are not possible.  That restrict the IETF's ability chose
some licenses.

> The community objected to one of the boundary conditions, and we
> fixed it. That was the purpose of the community review.

Right.

> fix it in the Trust Agreement, we would have found another way to fix it.

You fixed it only for RFC/I-D's, not all material.

> raised with the IAOC during the Vancouver meeting; we didn't rush

Was this discussed in public?  If not, the fact remains that the
community were given 3 days of review time for the updated text.  If 3
days isn't rushing the fix, I don't know what is.

> several months earlier, but it just wasn't possible.

I understand, but still feel this was rushed ahead.  I don't
understand why there is a hurry to move this forward now.

Thanks,
Simon

---

From: Sam Hartman <[email-masked]>
Date: Wed, 07 Dec 2005 23:55:49 -0500

>>>>> "Simon" == Simon Josefsson <[email-masked]> writes:

    Simon> Harald Tveit Alvestrand <[email-masked]> writes:
    >>> I'd feel more comfortable if the outbounds right issue was
    >>> settled, before all IPR is signed away to some external body
    >>> that, to me, it seem unclear whether the IETF has total
    >>> control over.
    >>  Remember that it's signed away FROM bodies that the IETF has
    >> NO control over.

    Simon> My point was that before drafting what conditions the IETF
    Simon> Trust should operate under, we should know what kind of
    Simon> permissions we want the IETF Trust to be able to grant.

I think it is sufficient the trust be able to operate under any set of
outbound rights we come up with.

---

From: Simon Josefsson <[email-masked]>
Date: Thu, 08 Dec 2005 17:39:35 +0100

> outbound rights we come up with.

That won't be possible, given the current (and even the updated) IETF
Trust agreement.

The IETF may decide that third parties should be given rights to all
contributions, not only to RFCs/I-Ds.

Currently, the IETF Trust would be unable to comply to such a wish
from the IETF, because the Trust agreement prevent them from doing so.

Thanks,
Simon

---

From: "Lucy E. Lynch" <[email-masked]>
Date: Thu, 8 Dec 2005 08:59:53 -0800 (PST)

> from the IETF, because the Trust agreement prevent them from doing so.

explain please, I don't understand this.

Straw man?

---

From: Brian E Carpenter <[email-masked]>
Date: Thu, 08 Dec 2005 18:17:46 +0100

> explain please, I don't understand this.

To me, the new phrase "IETF
standards-related documents (such as RFCs, Internet Drafts and the
like)" clearly covers contributions to the standards process, i.e.
the same scope as RFC 3978. I don't see a problem here.

     Brian

---

From: Simon Josefsson <[email-masked]>
Date: Thu, 08 Dec 2005 18:20:29 +0100

> explain please, I don't understand this.

The new section 9.5 would appear to read: (I note that it would be
useful to continuously update to actual document so we can quote it,
rather than relying in various e-mails updating portions of the
document)

  The Trust (acting through the Trustees) shall have the right to
  grant licenses for the use of the Trust Assets on such terms,
  subject to Section 7.1, as the Trustees deem appropriate; provided,
  however, that the Trust shall not grant any license that would be
  deemed a transfer of ownership or abandonment of any Trust Assets
  under applicable law.  Specifically, any license granted by the
                                       --------------------------
  Trust for the use of the Trust Assets consisting of IPR other than
  -----
  rights in IETF standards-related documents (such as RFCs, Internet
  Drafts and the like) that have been acquired by the Trust through
  non-exclusive licenses granted by their contributors pursuant to the
  IETF community-approved procedures currently set forth in RFC 3978,
  and any community-approved updates and revisions thereto, shall
  include provisions stating that (a) the licensee agrees to grant and
                                  ------------------------------------
  assign to the Trust all right, title, and interest it may have or
  -----------------------------------------------------------------
  claim in any derivative works of licensee that are based on or
  --------------------------------------------------------------
  incorporate the IPR, and (b) the licensee's use of the IPR and any
  --------------------
  goodwill associated therewith shall inure to the benefit of the
  Trust."

The marked sentence imply that not all IPR held by the IETF Trust can
be licensed away to third parties without requiring them to give up
all rights to derivative works.

As far as I see, the IETF community may decide that granting someone
the right to IETF IPR, without granting back the rights to derivative
works, in some cases.  With the current text, the IETF Trust would be
unable to comply with that IETF community decision.

> Straw man?

  The Trust (acting through the Trustees) shall have the right to
  grant licenses for the use of the Trust Assets on such terms,
  subject to Section 7.1, as the Trustees deem appropriate; provided,
  however, that the Trust shall not grant any license that would be
  deemed a transfer of ownership or abandonment of any Trust Assets
  under applicable law.

In other words, remove everything after "Specifically".  The
restrictions in the current text limit what the IETF Trust can legally
do.

If the IETF decide that third parties should be given some rights to
IETF IPR, the IETF Trust should be able to comply with that decision.
To me, it doesn't seem like it would be able to, given the current
text.

Thanks,
Simon

---

From: "Lucy E. Lynch" <[email-masked]>
Date: Thu, 8 Dec 2005 10:39:09 -0800 (PST)

<snip>

> rather than relying in various e-mails updating portions of the

Updated - see:
http://koi.uoregon.edu/~iaoc/docs/IETF-Trust-12-08-05.pdf

>   under applicable law.  Specifically, any license granted by the

Simon -

Please see Sec. 5.2 - I believe that IPR that transfers into the IETF
Trust at closing should all fall under the terms of the current Sec.
9.5 as re-written and if any future contributors wish to add gating
conditions to their own (non standards related) IRP, they may want to
License those items TO the IETF Trust with appropriate provisions for
downstream rights rather than contribute them out-right if derivative
rights are a major concern.

- regards

lel

---

From: Simon Josefsson <[email-masked]>
Date: Thu, 08 Dec 2005 19:57:14 +0100

> http://koi.uoregon.edu/~iaoc/docs/IETF-Trust-12-08-05.pdf

Thanks!

> rights are a major concern.

Section 5.2 is about IPR added after the Trust is signed, so I fail to
see its relevance.  I'm talking about the IPR listed in "Schedule A"
in the document.  Please reread my previous e-mail in that context.

To make things even more clear, here is the problem I see:

The IETF may later decide that, e.g., (excerpts of) records of past
IETF meetings should be licensed to a third party, a third party that
cannot grant the IETF Trust all rights to derivative works.  The IETF
may understand the problem for the third party, but decide that it
furthers the goal of the IETF anyway, and that it wishes to grant that
third party rights to the data.

With the current section 9.5, this request from the IETF cannot be
approved by the IETF Trust.

Replace "records of past IETF meetings" with other items (except
RFC/I-D's) in Schedule A as you please.  For example, mailing list
archives, web pages, IESG material, document processing history.

I agree with Sam that the Trust agreement should not prevent any set
of outbound rights that the IETF community may decide on.

Thanks,
Simon

---

From: Simon Josefsson <[email-masked]>
Date: Thu, 08 Dec 2005 20:05:49 +0100

> the same scope as RFC 3978. I don't see a problem here.

RFC 3978 define Contributions as:

   c. "IETF Contribution": any submission to the IETF intended by the
      Contributor for publication as all or part of an Internet-Draft or
      RFC (except for RFC Editor Contributions described below) and any
      statement made within the context of an IETF activity.  Such
      statements include oral statements in IETF sessions, as well as
      written and electronic communications made at any time or place,
      which are addressed to:

      o  the IETF plenary session,
      o  any IETF working group or portion thereof,
      o  the IESG, or any member thereof on behalf of the IESG,
      o  the IAB or any member thereof on behalf of the IAB,
      o  any IETF mailing list, including the IETF list itself, any
         working group or design team list, or any other list
         functioning under IETF auspices,
      o  the RFC Editor or the Internet-Drafts function (except for RFC
         Editor Contributions described below).

That is considerably more than what even a lax interpretation of "IETF
standards-related documents" would mean.

So I do see a (minor) problem.

Thanks,
Simon

---

From: Sam Hartman <[email-masked]>
Date: Thu, 08 Dec 2005 14:19:54 -0500

I don't see the problem here.  For example, I believe the IETF could
license a tool under the GPL if it wanted to.  I believe it would need
to require that work it paid for was assigned to the trust but that's
a fairly common practice.