Subject: RE: Last Call on draft-bradner-rfc3979bis-08.txt ("Intellectual Property Rights in IETF Technology")

From: John C Klensin <[email-masked]>
Date: Wed, 13 Apr 2016 13:41:09 -0400

--On Tuesday, April 12, 2016 17:33 +0000 Michael Cameron
<[email-masked]> wrote:

> John said:
> 
> As a random member of the community, whether I'm participating
> in a WG, or even actively monitoring it, is fairly clear.  If,
> for example, I'm attending its meetings (f2f or remotely) or
> signed up for its mailing list, the community should be able
> to assume that I'm watching the work in that WG and should be
> required to make relevant IPR disclosures even if I don't
> actually say anything or otherwise generate Contributions.    
> 
> My response:
> 
> I appreciate that some are advocating for what they want the
> rules to be, but let's level set as to what they are.
> Attending meetings, being signed up for mailing lists or
> watching work in a WG does not obligate one to make any IPR
> disclosures.  That was discussed in detail at the last IETF
> meeting when the IPR Group met (Orlando, IIRC). The IPR
> disclosure obligation arises only with respect to known IPR
> reading on Contributions (for Contributors) and for
> non-Contributors, the disclosure obligation only applies to
> known IPR reading on a draft on which such non-Contributor
> actively seeks to influence the outcome of the disposition of
> a draft (active participation).

Again, you are splitting hairs in a very lawyer-like fashion
(you may take that as a complement if you like).   But I suggest
that, e.g., responding to a request for a hum, or even not
humming when a WG Chair asks a question and does not ask for
hums on the opposite or on any other alternatives, constitutes
"actively seeking to influence the outcome...".  If I'm sitting
in the WG session at a time a WG Chair asks
consensus-determining questions and I don't want to be counted
as for, against, or indifferent (itself a potentially
influencing position), I'd best head for the door rather than
sitting there.

My recollection of that last meeting of the IPR WG (and several
before it, both immediately before and over the years) is
apparently a bit different from yours.   My understanding of the
discussion there was that the community's intent is that, if one
knew of IPR that might reasonably be expected to bear on the
work of a WG or a particular document, the expectation was that
one would disclose (with the level of that expectation
deliberately lower if one was not directly connected to the IPR
than if one was directly connected.  If, for some reason,
disclosure was impossible and/or would violate other
commitments, then one was expected to be clearly isolated from
the work generally and from any reasonable doubts about whether
one had influenced a decision or attempted to do so.    IMO, the
alternatives lead to madness, e.g., can you imagine wanting to
know who was sitting next to someone so as to be able to ask is
he or she hummed, made silly faces, or otherwise tried to
influence the outcome of a discussion about a draft?

Now, I think there is a separate issue, which is when the cases
arise from which the IETF threatens to apply sanctions for
violating the rules.  I think we need to deal with the gray
areas in which someone made a reasonable judgment call
(including cases in which there is question about whether
first-party or third-party rules apply) in a reasoned, flexible,
and generous way, reserving the punishments and nasty behavior
for clear cases or patterns of abuse.     I think our actual
practice has been consistent with that approach.

> John said:
> 
> If you are the AD responsible for a WG, then I think the
> community gets to assume that you know what its work items
> are, have approved document editors, and have at least read
> the abstracts of the various drafts, i.e., that you are
> participating.  If you are some other AD in the same area,
> well, areas differ a lot and over time.  In some cases, ADs
> shadow each other as a mutual backup arrangements and I'd
> expect to be able to treat all ADs in the same area as
> "participating" in all WGs.  In others, WGs get divided up
> among ADs, after which the area might as well be as many
> separate ones as there are ADs.  At IETF evaluation time, any
> ADs who record a position other that "abstain" on a spec, or
> to engage in any IESG discussion about it, has presumably
> studied that spec closely enough to incur disclosure
> obligations if IPR is known to them because making a decision
> to adopt (or not) is clearly "participation".  The same issue
> might exist with Co-chairs of a WG with many tasks.  I'd
> normally assume that each one is familiar with and
> participating in every work item, but it isn't hard to imagine
> situations in which work might be split up along clear
> boundaries with one co-chair getting involved in the work of
> the other only at around the time of Last Call if then.
> 
> My response:
> 
> We need to be careful not to place on Area Directors
> unreasonable burdens and obligations.  Further, there needs to
> be certainty as to what the obligations are.   The obligations
> imposed on Area Directors to declare known IPR should be
> limited to those activities in which they actively
> participate.  I'll defer to the ADs, but I would think that an
> AD acting on a recommendation or advice from a WG as to how to
> proceed on a Specification, without more, does not necessarily
> rise to the level of active participation.

That would be great, but it is just not consistent with how the
IESG functions.   ADs are just not expected to passively accept
WG recommendations, at least unless they have been very actively
involved in the WG and is management.  Instead, they are called
upon to evaluate those recommendations and make recommendations
to the community about them.  That is just not a passive,
"without more" sort of relationship.  

However, I think this is showing up a more fundamental problem.
If the community still has the same understanding of the general
intent of the IPR and disclosure rules as it did when the WG
concluded, then treating a document update that clarifies and/or
better aligned with that general intent as an individual
submission from Scott and Jorge.  If, however, we have
significant disagreements about what the intent was, and maybe
even about whether things have changed enough that the intent
needs to be re-evaluated, then, at least IMO, it is unreasonable
to expect that we can gets things right on the IETF list as part
of a Last Call on an individual submission.  Instead, if we have
reacted the point where a debate about principles is needed, it
is almost certainly time to reconvene/ recharter the WG.

    john

---

From: Michael Cameron <[email-masked]>
Date: Wed, 13 Apr 2016 18:32:51 +0000

Hi John, if we can't split legal hairs in a purely legal domain, then I probably need to find another line of work :-) 

I'lI try to respond to some of your other points in a later post, but one thing stood out that I'd like to address right away.   I disagree that sitting passively in a meeting and not humming could constitute "actively seeking to influence the outcome..."  

Best, Mike

---

From: "Joel M. Halpern" <[email-masked]>
Date: Wed, 13 Apr 2016 16:04:14 -0400

John, your memory / perception of the discussion around participation 
differs markedly from mine.
Your interpretation that even sitting quietly is still attempting to 
influence the outcome is specifically at variance with the discussion 
that gave rise to that wording, as I heard it.

I would also note htat any chair who tries to use the number of people 
who don't say anything as aqn indication of any aspect of a WG decision 
is simply asking for trouble.  Which is why most chairs, when trying to 
get a sense of the room on something, always ask the obverse question, 
and sometimes even ask "how many people don't care."

Yours,
Joel

---

From: Stephan Wenger <[email-masked]>
Date: Wed, 13 Apr 2016 20:06:06 +0000

Hi John and Mike,

On 4/13/16, 11:32, "ietf on behalf of Michael Cameron" <[email-masked] on behalf of [email-masked]> wrote:

>[...]

The Orlando IPRbis meeting report can be found here: http://www.ietf.org/proceedings/86/minutes/minutes-86-iprbis

The relevant section is this:
"
SENSE OF THE ROOM

Russ Housley: Let's take a sense of the room on this topic.  Is acting in
order to influence the outcome of the discussion, and not listening or
watching the action of others?  That includes show of hands, writing,
humming, and so on.

Strong sense of the room that active influence counts as participation,
but listening and watching does not.
“

I at least found the outcome of the discussion sensible then, and appropriately represented in 3979bis-08 now.

Tourism is allowed.  Sitting in the room (or on a mailing list for that matter), listing quietly, with good or ill intentions, is allowed.  Physical presence in the room (or subscription to a mailing list) does not constitute Participation.  We live with the risk of speculative patent application filings, and with people owning essential IPR being quiet and keep the IPR secret when they feel that others do enough to include their IPR in a  forthcoming RFC, and so on--all that in the name of openness, inclusiveness (including inclusiveness to newcomers on to the IETF, or the subject matter of the WG), cross fertilization and so on.  We do not want closed rooms and closed mailing lists.  The undeniable risk, and the cost associated with this, we are willing to pay.  

Stephan

---

From: Brian E Carpenter <[email-masked]>
Date: Thu, 14 Apr 2016 08:12:55 +1200

On 14/04/2016 05:41, John C Klensin wrote:
...
> ... My understanding of the
> one had influenced a decision or attempted to do so. 

Yes. Our aim, as I understand it, is to facilitate open discussion
and publication of open, interoperable standards, without damaging
the legitimate rights of IPR owners. That does not include allowing
IPR owners to disguise their IPR during the discussion, even by silence.
It also does not include forcing individuals to trigger onerous patent
searches, which is why our criterion has always been "reasonably and
personally known". This still seems like a reasonable compromise, and
I don't see the proposed updates as a fundamental change to the way ADs
and WG Chairs have always been expected to behave. We're just trying
to make it crystal clear.

As far as I know, the IETF isn't infected by people from non-practicing
entities, and all the major patent-writing companies have generally
played the game honestly. So I don't think we have a burning issue
here, just a desire to clarify the documents for future participants
and contributors.

    Brian

---

From: Brian E Carpenter <[email-masked]>
Date: Thu, 14 Apr 2016 08:27:09 +1200

On 14/04/2016 08:04, Joel M. Halpern wrote:
...
> Which is why most chairs, when trying to get a sense of the room on something, always ask the obverse question, and sometimes even ask "how many people don't care." 

I've also heard "who is abstaining?" and even "who is not listening?".

I think what John is getting at (please correct me if I'm wrong) is
individuals who have influenced the draft behind the scenes but stay
silent in public. Whether they are in the room is a little beside the
point.

...
> "Strong sense of the room that active influence counts as participation,
> but listening and watching does not."

Fair enough - but that doesn't mean that the IETF condones non-disclosure.
And (for the topic originally under discussion) it's clear that a WG Chair
who declares consensus for adopting a document, or forwards it to the IESG
for publication, or an AD who reviews a document prior to an IESG ballot, is
participating. If the text doesn't make that clear to all readers, the text
is defective.

    Brian

---

From: John C Klensin <[email-masked]>
Date: Wed, 13 Apr 2016 19:15:22 -0400

--On Wednesday, April 13, 2016 16:04 -0400 "Joel M. Halpern"
<[email-masked]> wrote:

> John, your memory / perception of the discussion around
> participation differs markedly from mine.
> Your interpretation that even sitting quietly is still
> attempting to influence the outcome is specifically at
> variance with the discussion that gave rise to that wording,
> as I heard it.

ok.  I certainly agree that sitting quietly would be pushing it
and defer to your memory and that of Stephen and the Orlando
minutes.  Again, what I think is more important is avoiding
getting into a discussion of "did he or did he not actually
hum?"   Or do you think humming is not "attempting to influence
a decision" and, if so, how loudly is needed?   See below.

> I would also note htat any chair who tries to use the number
> of people who don't say anything as aqn indication of any
> aspect of a WG decision is simply asking for trouble.  Which
> is why most chairs, when trying to get a sense of the room on
> something, always ask the obverse question, and sometimes even
> ask "how many people don't care."

I absolutely agree with that.  But the last time I heard a chair
try to take only a "for" hum, only to be asked by the group to
ask the negative question was, hmm, in a WG last week.  It may
be a bad practice, but it isn't an uncommon behavior.   Note
that these distinctions will get increasingly important as
remote participation (as distinct from remote watching or
observing or lurking increases).  For example, last week,
Meetecho required that I check a box to distinguish between
being "a participant" and "an observer".  If I check the
"participant" box, but don't get myself in queue, say anything
substantive on Jabber, or click on "hum" does "solely to the
extent of such participation" [3979bis section 1(f)] protect me
from IPR obligations regardless of what 3979bis section 1(k)
might say?    If the answer is "yes, I am protected", how
substantive do my Jabber comments have to be to to constitute
participation?  Can I say "the audio isn't working" without that
being a comment to the WG?    

Just to be clear about how muddled this is, I note that 39796bis
Section 3.3 is titled "Obligations on Participants" and starts
"By Participating in IETF, each Participant..." but then the
specific statements that follow talk only about Contributors.
Given the level of hair-splitting we seem to be getting into,
could that be taken to mean that non-Contributor Participants
are really not Participants?

At the other extreme, Section 6 says "Since disclosure is
required for anyone making a Contribution or _participating in
IETF activities_..." (emphasis mine) [1].  Note that doesn't
say, e.g., "entangled with a particular document or even WG or
trying to influence its outcome", it refers to IETF activities
generally.  Now, showing up at the Social, or coming to a
meeting break and eating the cookies is fairly clearly
"participating in an IETF activity".  Or, if you take the 3979
wording as better reflecting the intent, involvement in a
discussion of meeting locations (with not participation in the
IETF's technical work at all) is "participating in IETF
discussions).  Now a sentence further on adds "about a
technology", but that doesn't seem to modify the earlier
sentences or to actually add much to "disclosure is required".

Now I don't know if Section 13 of 3979bis is considered
normative, but, if it is, we have yet another definition, i.e.,
"Participation...At a high level, suggested that anyone who says
something on a list or in a WG meeting is required to make IPR
disclosures".   Now, given that or just the text earlier in
3979bis or, for that matter, in 3979, please answer the
following questions:

(i) If an AD sends a note to a WG list that reads "We are
debating whether the WG needs to meet at IETF 97", does that
constitute participating in all of the work of the WG?  Any of
the work?   The current text of 3979bis fairly clearly says
"yes" because of the sweeping obligations it puts on ADs but we
have been debating that.

(ii) If someone stands up in a WG meeting and says "would people
please be more careful to announce their names clearly before
speaking", is that different from "saying something... in a WG
meeting"?  How about if a remote participant says exactly the
same thing on Jabber?   Good sense says that it clearly is
different from participation that would incur disclosure
obligations (especially if the sections of IETF 86 minutes
quoted by Steve count), but one can't derive that from the text
of 3979bis (or, AFAICT, 3979).

(iii) If an AD, via the tracking machinery, posts a note that
says, roughly, "Joe Blow has no objection to
draft-ietf-foo-barbaz-99" and that note, as is contemporary
practice, is posted to the foo WG mailing list, isn't that
"saying something on a list"?  Note that saying exactly the same
thing, in the same way, in 2006, would not have, by itself,
incurred any obligation (or any posting) because the tracker
didn't routinely copy things to WG mailing lists.  On the other
other hand, if an AD chose to explicitly tell a WG about her
decision on a particular document, that would fairly clearly be
a Contribution even under 3979.

(iv) If a remote participant enters something into Jabber
preceded by "MIC" and someone in the room stands up and reads
it, has the latter person thereby said something in a WG meeting
and therefore incurred participation and disclosure obligations?

To the extent to which I agree with Michael that people should
have clear expectations about when they are, or are not,
expected to disclose, the above suggests that things have gotten
rather muddled.  I'm suggesting that is exactly the case, that
we need to return to principles, and that those principles need
to not depend on "well, I didn't hum and therefore don't have to
disclose" or, much worse, "you can't prove I hummed audibly and
therefore I don't have to disclose".   

best,
   john

     john

[1] That comes almost directly from the slight different
statement in RFC 3979 Section 7, which reads "Since disclosure
is required for anyone submitting documents or participating in
IETF discussions...".  It is not clear to me which of the two is
narrower or if the rephrasing is a change in intent.

---

From: John C Klensin <[email-masked]>
Date: Wed, 13 Apr 2016 19:28:25 -0400

--On Thursday, April 14, 2016 08:27 +1200 Brian E Carpenter
<[email-masked]> wrote:

>> Which is why most chairs, when trying to get a sense of the
>> room on something, always ask the obverse question, and
>> sometimes even ask "how many people don't care." 
> 
> I think what John is getting at (please correct me if I'm
> wrong) is individuals who have influenced the draft behind the
> scenes but stay silent in public. Whether they are in the room
> is a little beside the point.

Yes, that is my main concern -- that we do not let such
publicly-quiet influencers off the hook.

>> "Strong sense of the room that active influence counts as
>> participation, but listening and watching does not."
 
> Fair enough - but that doesn't mean that the IETF condones
> non-disclosure. And (for the topic originally under
> discussion) it's clear that a WG Chair who declares consensus
> for adopting a document, or forwards it to the IESG for
> publication, or an AD who reviews a document prior to an IESG
> ballot, is participating. If the text doesn't make that clear
> to all readers, the text is defective.

And that is another key part of the point I'm trying to make.
It seems to directly contradict Michael's position that, AFAICT,
posits some sort of non-involved acceptance of a WG
recommendation that would not constitute participation.   Along
with wanting to stay very far from "I didn't really hum and
therefore I don't need to disclose", I want to be sure we
_never_ get into a situation in which Company A has a rule
against its employees disclosing IPR before patents have been
issued, a WG has a chair who works for company A, all ADs in the
Area of that WG work for company A, all three of them are
personally aware of relevant IPR, and yet there is some way to
dance around the rules such that no one is obligated to
disclose.  

The problem I see with trying to make extremely fine
distinctions about ways to not-quite-participate is that they
will almost certainly open up loopholes or edge cases that could
make such a scenario possible.  We could, of course, avoid such
scenarios by adopting firm rules that no AD can be responsible
for a WG whose Chair (or any co-chair) is from the same company
and perhaps that areas with two or more ADs must have all of
them from separate companies, but I think that cure might be
worse than the problem.

best,
   john