Subject: Responses to open questions from Yokohama, and other thoughts

From: "Valerie See" <[email-masked]>
Date: Wed, 23 Oct 2002 14:24:06 -0700

Sorry to be late in responding to the comments from Yokohama, and to
other discussion on the list. I'm starting with some comments on the
open questions from Japan:

> <1>
> Eric Nordmark: "Known to the contributor"?
> Scott Bradner: Good question - take it to the list.

[vsee] I have no direct response to this question, per se, though
generally agree that "personal knowledge" is the right threshold.
Additionally, it's important not to hold the individual responsible for
the group knowledge of the entire company he or she represents.  More on
this in comments on the second question.

> <2>
> David Perkins: Can we say "the organization that sponsors the author"?

> Scott Bradner: Take that question to the mailing list...

[vsee] I thought that what the thrust of this issue was about was making
certain that individuals understand they are obligated to disclose, to
their _personal_ level of knowledge (or what is _reasonable_ for them to
know).  One can't ask an individual more than that -- you can't
reasonably pack an entire organization's knowledge of the org's IP into
one individual. There's also a related issue here... individuals have to
realize that even though they participate in the IETF as an individual,
like it or not, they are also representing their company or organization
if they participate and make contributions.  In many/most cases, for
example, time and travel expenses are paid for by the company, and
likewise the organization/company's IPR in a particular technology is
implicated when somebody who works for that company makes a contribution
that includes such technology. In short, this is all about keeping a
balance and recognizing, on the one hand, the responsibilities
individuals have when they participate and contribute at the IETF, but
also knowing that, on the other hand, one person can't know about
everything going on within a given company.

> <3>
> Scott Bradner: "Contributor" is defined in the document - whether 
> running spell-check gives you rights is a good topic
> for the list.

[vsee] There seem to be two issues here - (1) the definition of a
contributor and (2) who has an obligation to disclose. I think that as
long as the disclosure requirement is a reasonable one, limited to an
individual's personal knowledge, anybody who has had any role in the
development of the document - even if it's just monitoring the lists -
should be under obligation to disclose what they know, within that
limitation of personal knowledge, or what is reasonable for them to
know.

> In draft-bradner-ipr-technology-00.txt:
>
> <4>
> Steve Treveridge: If a company has a policy granting licensing, etc., 
> do I have to disclose this? Scott Bradner: On the list.

> and Scott Brim's comments:

> The IETF has no mechanism to obligate this kind of disclosure.
>
> However, WGs can apply pressure in order to find out all they can 
> about potential licensing terms, and WGs can take what they learn (or 
> don't learn) into account. I'm working on a draft for WGs on how they 
> can deal with IPR questions, > and I'll include this.

[vsee] I'm thrilled to see this question being worked on, but think that
it's better that the technical participants in workgroups not have to
spend their time on this kind of issue - it seems preferable that there
be another mechanism to resolve IPR related questions - particularly
questions regarding specific license terms - than to have each workgroup
grapple with them directly. Further, RFC 2026, section 10.3.3 actually
says that the IESG "will not make any explicit determination that the
assurance of reasonable and non-discriminatory terms for the use of a
technology has been fulfilled in practice." To me, this suggests that
the IESG prefers that WGs and the IESG not take part in
discussions/negotiation between parties on licensing terms - you get
even more sense this was the original take by looking at the following
text from that same section - "if the two unrelated implementations of
the specification that are required to advance from Proposed Standard to
Draft Standard have been produced by different organizations or
individuals, or if the 'significant implementation and successful
operational experience' required to advance from Draft Standard to
Standard has been achieved, the assumption is that the terms must be
reasonable and to some degree non-discriminatory." This seems like a
fairly objective approach to assess the reasonableness of the terms,
without trying to weigh the blow-by-blow merits each time the question
comes up. Don't misread what I'm saying here - the idea of disclosing
your policy around license terms is a very good thing (i.e., whether you
would license on RAND, or RAND with no fee, or whatever) - and in fact,
the earlier that disclosure, the better - but the actual terms
themselves seem to be a level of detail that just doesn't buy anything
in this context. Conversations about licensing terms should be between
the parties involved in the deal, and should be outside the
standards-setting context - this is how orgs like ANSI, ITU, ISO/IEC
have been doing this for a long time.

> <5>
> Andy Samolen (?): What about disclosure that don't affect the work of 
> a working group? Scott Bradner: Many people are asking for 
> clarifications about what to disclose and when. Andy Samolen: What 
> about broad IPR claims and patents ("anything that uses touch tones on

> a menu system")? Scott Bradner: Any IPR that must be licensed, should 
> be disclosed. Let's talk on the list.
 
[vsee] I had understood that any IPR held by the participant or his/her
represented company that must be licensed to implement the specification
should be disclosed if you know about it as an individual, whether the
source of the IPR is contained in the participant's own contribution or
in another party's contribution. Or, more specifically, making certain
that individuals understand they are obligated to disclose, to their
personal level of knowledge (or what is reasonable for them to know,
given their position). Is that what is meant here?  

Some Comments On Scott Brim's I-D about WG procedures:

I. Working Group Involvement in Specific Licensing Terms
1. As I said above, WGs are not the place to discuss and review specific
IP licensing terms.

2. Additionally - 
a)  As I mentioned above, it appears that the IESG is not interested in
such license term review.  RFC 2026, Section 10.3.3 says that the IESG
"will not make any explicit determination that the assurance of
reasonable and non-discriminatory terms for the use of a technology has
been fulfilled in practice."  Rather, "if the two unrelated
implementations of the specification that are required to advance from
Proposed Standard to Draft Standard have been produced by different
organizations or individuals, or if the 'significant implementation and
successful operational experience' required to advance from Draft
Standard to Standard has been achieved, the assumption is that the terms
must be reasonable and to some degree non-discriminatory."  While Scott
notes this provision (in Section 5.6), I don't think he's giving it as
much weight as it deserves. It looks to me as though the IESG prefers
this more objective approach over WGs and IESG taking part in the
discussion/negotiation of specific licensing terms. This also is exactly
how ANSI, ITU, and ISO/IEC have dealt with this problem - they have
always made it clear that the SDO will not involve itself in a
discussion of licensing terms, and that all such discussions are to take
place between particular parties outside of the standards development
context.  They've had a lot of success with this approach, and it sounds
like where we should be, too.

b)  Similarly, under RFC 2026, Section 10.3.2(B), the IESG disclaims any
responsibility for evaluating the applicability of any IPR claims, and
will not take a position on the validity or scope of any IP rights.  If
the IESG won't touch this, presumably because these issues are for the
parties, lawyers, and courts to decide, it seems to me that the IETF WGs
should take this approach too.

II. Other Comments
1. I like Scott's comments in Section 2 of the paper regarding the fact
that IP-based technologies have been used in many Internet standards
with very good results - I found this quite compelling and would like to
support this view. 

2. Scott refers to technology with IP attached to it as "encumbered"
technology.  While I realize this is a common term used by many, it
unfortunately has a very pejorative connotation (i.e., hindered,
hampered, impaired).  Could I suggest that this terminology be replaced
throughout Scott's I-D with something more neutral?  For example,
instead of "IP-encumbered" technology, how about "patented" technology?
This change would also seem to line up with Scott's recognition
(discussed above) that in many cases the use of patented technologies in
Internet standards was not only necessary but extremely valuable to
arriving at the highest quality standard.

3. I generally agree with Scott's four general classes of licensing
statements set out in Section 5.6, with one caveat:  Scott's description
could be read to suggest that the royalty free and RAND options are
mutually exclusive.  I think we should clarify that royalty-free
licenses may also contain other RAND terms (beyond the reciprocity term
Scott mentions).

4. Some of the comments that John Klensin has made on Scott's draft are
troubling to me, and I wanted to comment upon them:

> (8) Also in 5.6, it may be worth adding something like the following,
> after "not in this context", to the explanation of RAND, to help 
> clarify the difficulties with that approach:
> 
> 	and, in particular, that "reasonable" and "fair" have
> 	sometimes been very expensive.  Also, companies have
> 	occasionally asserted that there were already sufficient
> 	licenses for a particular technology to meet
> 	"reasonable" multisource and competitiveness
> 	requirements and, hence, that refusing to grant any
> 	licenses to new applicants was both fair and
> 	nondiscrimatory.

BRIM'S RESPONSE:  I'll look for a place for this.  These bullet items
were meant to just list license scenarios, not discuss them too much.
The discussion is supposed to be elsewhere.

[vsee] Given the goals of this doc, namely to provide guidelines to
working groups on intellectual property issues, this statement seems
likely to prove counterproductive and I think it shouldn't be included.

> (7) In 5.6, I don't believe that the well-known GPL fits into any of
> these categories [i.e., waiver of license, no license given, RF, or
> RAND].  Instead, it 
> is a specific grant of rights, for no fee, but subject to a series of 
> conditions  that
> impact future work involving the technology.

BRIM'S RESPONSE:  Yes, a grant of specific rights was in there but got
lost in the editing somehow.  OK.

[vsee] The GPL is one of many software distribution licenses.  It is not
practical to define, let alone list, all of the distribution licenses
that might be used by parties who implement an IETF standard.  The
following options should be sufficient to cover almost all development
and distribution models where a license to patented technology might be
necessary. 
1. RAND 
2. RAND but no fee or royalty 
3. No license granted 
4. No license needed (waived) 
5. Other

> (6) Under 5.1, consider adding something like the following to the
> discussion of copyright (since you are talking about US law
> anyway):
> 
> 	Current statutes provide for a very long period of
> 	protection.

BRIM'S RESPONSE:  OK

[vsee] Whether the U.S. copyright protection period is "very long," too
short, or just right is currently a hotly debated topic (the U.S.
Supreme Court is currently reviewing this question).  I don't think the
IETF should take a position on this issue in this document.

-- Valerie See

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---

From: Keith Moore <[email-masked]>
Date: Wed, 23 Oct 2002 19:23:52 -0400

> the group knowledge of the entire company he or she represents.  

surely you mean "it's important not to hold the individual responsible
for the group knowledge of the entire company that employs him or her"
since IETF participants are supposed to represent their own technical
opinions as to what is best for the entire Internet, not the interests 
of their employers.

OTOH if an IETF participant is found to be representing the interests
of his/her employer, then IMHO we should (a) disregard that person's
input for decision-making purposes and (b) hold him/her responsible for
knowing about all IPR that his/her company claims.

in other words, you can't represent your employer on one hand and
pretend to not represent your employer where IPR is concerned.

Keith

---

From: Keith Moore <[email-masked]>
Date: Wed, 23 Oct 2002 19:38:32 -0400

> spend their time on this kind of issue 

I emphatically disagree.  Licensing terms are useful and often a necessary
input into working group deliberations.  Most participants of most working 
groups do not want to standardize a technology that cannot be freely used.
If licensing terms prevent this, or are hazy, that argues against use of
the technology.  IESG cannot decide on behalf of IETF whether or not a 
technology is too encumbered to use, but working group participants
and other IETF participants can make such determinations on their own while
supporting (or not supporting) a proposed standards action.  This is
an essential part of our decision-making process.

Keith

---

From: Doug Royer <[email-masked]>
Date: Wed, 23 Oct 2002 17:53:53 -0600

Keith Moore wrote:
 >...
> of his/her employer,

Then they are doing their job :-) We get consensus from individuals.
But the reality is that if it is not also in the best interest
of our employers - we are not sent or are out of a job.

> then IMHO we should (a) disregard that person's

(b) Do you know all of the IPR that UTK holds?

I don't know about the University environment, but at Sun Microsystems
and Hughes Aircraft (most of my last 20+ working years) the
departments are so compartmentalized - the employee would not
even have a clue who to ask.

> pretend to not represent your employer where IPR is concerned.

Is all an employee can do is inform their employer of the IETF
procedures and rules and be honest. They can't force their
employers to invite them to other department meetings in
order to look for IPR issues.

-- 
-
Doug Royer                       Work: (208)612-INET
[email-masked]                   Fax:  (866)594-8574
http://INET-Consulting.com       Cell: (208)520-4044
http://Royer.com/People/Doug

---

From: Keith Moore <[email-masked]>
Date: Wed, 23 Oct 2002 23:32:18 -0400

> of our employers - we are not sent or are out of a job.

people have got to make their choices.  should they break their
employer's rules or break IETF's rules?  we're talking about IETF
rules here, and those rules need to be defined accordint to IETF's
interests, not some random employer's interests.  people who break
those rules have to live with their consciences at a minimum - who 
knows maybe someday such a person will face legal action for doing so?
 
> (b) Do you know all of the IPR that UTK holds?

No, but I don't represent UTK at IETF.  Not in the slightest.
And if UTK  had IPR that I knew about then I'd discourage IETF
people from using it unless it were free for everyone to use.
Even if it cost me my job, which it wouldn't.

No, I don't think it's practical for an employee of a large company
to be aware of all of the IPR that the company holds. At the same time
it's patently unfair (so to speak) for a company to send 'representatives'
to IETF whose job is to parrot decisions made elsewhere (i.e. by those 
who are aware of that company's IPR) and who are unable to make decisions
in the best interest of the Internet as they understand it.    This kind
of behavior is just as much a violation of IETF rules *by the participant*
as failure to disclose IPR that he/she knows about.

Keith

---

From: Harald Alvestrand <[email-masked]>
Date: Thu, 24 Oct 2002 09:40:15 +0200

--On onsdag, oktober 23, 2002 14:24:06 -0700 Valerie See 
<[email-masked]> wrote:

> been fulfilled in practice."

one should not mistake refusal for disinterest....

the thang that the lawyers told us last time around (from what I gathered 
from others) is that (for instance) if we the IESG make an exmplicit 
determination that a set of terms are reasonable and non-discriminatory, 
and the company later turns around and bites us by changing terms or using 
them in some way we had not anticipated, we become liable to the harmed 
usersfor having said that they were OK.

in the same way, if we determine that something is NOT OK, we may become 
liable to the owning company for having misrepresented their IPR procedures.

Instead, we went in for the "by their fruits shall you know them" method of 
determining licensing quality: if it seems to work, and nobody claims that 
it doesn't, it's probably OK.

But still, we (like the wg) are INTENSELY interested in knowing what 
companies claim that they will do with their IPR. And sometimes we (the 
IETF and the IESG) have to make decisions based on that information - to 
advance or not to advance.

                    Harald

---

From: "Scott W Brim" <[email-masked]>
Date: Thu, 24 Oct 2002 09:01:47 -0400

From: "Keith Moore" <[email-masked]>
> At the same time

It's quite different.  An individual can choose, as an individual, to
represent other individuals' views and perhaps the views of one or more
corporation, including one that might be paying him to participate.  The
difference between individual and corporate participation is in how
activities are conducted, not in motivation.  I agree it would be best if no
one were influenced by money, but it's not against the IETF "rules" for an
individual, speaking as an individual, to do so out of financial
self-interest.

swb

---

From: Keith Moore <[email-masked]>
Date: Thu, 24 Oct 2002 09:26:06 -0400

> corporation, including one that might be paying him to participate. 

yes, an individual even should do so, if and only if that individual's technical 
judgement is that the other individuals' and/or corporations' views are in the 
best interests of the Internet as a whole.

Keith

---

From: "Scott W Brim" <[email-masked]>
Date: Thu, 24 Oct 2002 10:41:08 -0400

From: "Valerie See" <[email-masked]>, sent: Wednesday, October
23, 2002 5:24 PM
> [vsee] ...
> There's also a related issue here... individuals have to

This is true in many cases.  However, the IETF must be intentionally unaware
that whole area, and should not make recommendations on relationships with
sponsors (if participants have them -- not all do, especially not the ones
who come to the IETF looking for a job).  Therefore we only speak about
individual responsibility.

> limitation of personal knowledge, or what is reasonable for them to

Hmm, then there is no escape clause for someone who is not allowed -- by
his/her sponsor -- to disclose knowledge.  That's why the disclosure
obligation applies to those who are actually participating in discussion on
the relevant point.

> grapple with them directly.

Wouldn't it be nice.  Not only is it inappropriate for the IETF (whatever
that is) to pass judgement on licensing terms, the IPR holders do not have
to disclose them.  A number of organizations don't like to have blanket
licensing terms, but prefer (as you suggest) to deal one-on-one in some
cases.  The IETF could institute rules that required licensing term
disclosure, but (1) it would drive IPR holders away and screw up the
Internet engineering process, and (2) it wouldn't matter anyway, since the
IETF works with technologies that are developed outside of the IETF as well
as inside.  So we have no formal mechanisms, and not much of an expectation
that licensing terms will be disclosed.  However, experience has shown
clearly that IPR can make a big difference in a technology's success, which
means that a responsible working group should take it into account.  It's
part of the working group process.  Unfortunately standards development is
not all technical (for sure).  Since they can't do it as an organization,
they have to do it as individuals.

> 1. As I said above, WGs are not the place to discuss and review specific

Specific terms, sure.  Discussion of general tendencies may be critical.
Take a look at how it has been done in different working groups.  Some
manage to avoid discussing them, and I haven't seen a WG yet where licensing
terms was a dominant discussion issue, but in some the projected licensing
terms made a difference in what technology was adopted, for better or worse.

> like where we should be, too.

Most working groups seem to have felt that it's important for them to get at
least a sense of how a technology will be licensed, as part of their
evaluation of that technology.  There is no objective requirement on what
exactly is learned or discussed, because every situation is different and it
makes no sense to impose generalized internal requirements anyway (see
above).  However, participants have found it important to explore licensing
terms because they impact how useful a technology will be in building a
robust, flexible Internet.  We could create a rule forbidding discussion of
licensing terms, but that would go against our experience.  Also I'm told
that the ITU has increasing issues with IPR.

> should take this approach too.

WGs do not take positions on any of that either.  Individuals might.

> instead of "IP-encumbered" technology, how about "patented" technology?

I hear you.  I wanted a general term that included not just patents but also
trademarks and copyrights, and which wasn't too awkward.  I didn't come up
with one, and since that was version -00 (and thus certain to be revised) I
just used the usual.  Let me know if you have other good ideas.  "patented"
is too specific.

> licenses may also contain other RAND terms (beyond the reciprocity term

I agree there's overlap and I'll try to organize the concepts better, but
could you be more specific about what "other RAND terms" a royalty-free
license might include?

There's a deadline for getting version 01 out.  I'd like to send it out
Monday, so please reply soon if possible.

> likely to prove counterproductive and I think it shouldn't be included.

The goal is to provide guidelines on how to cope with IPR issues.  More than
anything else, the most useful tool for that is describing how others cope.
We want to include actual experience and case studies that help give the WGs
a conceptual framework for doing so.  Since the cases John cites actually
happened, and his point is not brought out by any of the other included case
studies, I don't see how I could leave it out.

> 4. No license needed (waived)

What I did with this was to add a sentence to "general free": "There may be
terms which specify conditions for use of the technology, for example
regarding redistribution."  This avoids mentioning the GPL specifically but
does include its salient features.

> IETF should take a position on this issue in this document.

Agreed.

swb