Subject: Philosophy arguments for gauging appropriate IPR conduct

From: Paul Gleichauf <[email-masked]>
Date: Sun, 17 Nov 2002 00:05:22 -0800

This is the second of a pair of promised messages to propose a more set
of comprehensive mechanisms for modification of RFC 2026. It contains a
statement of organizational philosophy and guiding principles governing
IPR to guide participants toward best conduct, and baring that acceptable
behavior.  In some ways it extends the Tao of the IETF RFC 3160
through specialization to the issues of IPR and RFC 2026.

The reason for even bringing up the subject is that some participants
report that it is hard to tell what is expected of them as individuals
and of the companies that sometimes sponsor them, when it applies to IPR.
In addition, some interests may be antagonistic to the creation of open
standards and can act to undermine the process. There is a need for
mechanisms to describe best and appropriate behaviors, and to
circumscribe inappropriate behaviors. These encourage the creation of a
social memory that can be used to evaluate the motives and behaviors of
participants over time. There is no direct mechanism available to a
volunteer organization to directly punish bad behavior, though
participants may choose to engage one another in court proceedings
outside of the IETF as a consequence of representations that have been
made during the course of the creation of a standard. The IETF philosophy
statements should enable everyone to clearly understand what is expected
of them when they participate to facilitate the necessary processes both
inside and outside the IETF for creation of standards.

As in the earlier message on process, this message is split into two
parts. The first is a succinct statement, the second half is intended to
provide some justification for these positions.

See (many of) you'all in Atlanta.

Paul Gleichauf

[email-masked]

--------------------------------------------Part 1---Philosophical
Principles----------------------------------------------------------

The IETF exists in large part to encourage interoperable common operation
of the Internet through the creation open protocols and practices[TAO].
The encouragement is through social mechanisms that recognize a shared
interest that transcends individual and corporate concerns. There are no
coercive mechanisms that can or will be deployed against participants at
the IETF. Rather, results at the IETF are achieved through consensus. It
is important that interested parties at the IETF understand the standards
of good and acceptable behavior for all participants, and that the IETF
has a ready memory of who has helped and who has hindered its
activities.

There are three parties at the IETF with potentially different
self-interests that must be reconciled when crafting new standards. There
is the aggregate common interest of the IETF as a whole, there is the
collective interest of working group participants chartered to solve a
specific problem, and there are the individual participants and the
organizations which may own the IPR relevant to a standard but with a
possible continuing need to exert some form of control upon it. In
addition there is a fourth party, the external entities that own IPR
potentially covering activities in the IETF, but who do not participate
and cannot be expected or compelled to disclose their ownership of
IPR.

IETF

The IETF accelerates the spread of Internet technology through sets of
standard protocols that can be implemented via publicly available
specifications. It is generally in the interest of the IETF to take the
broadest and longest view of the propagation of Internet technology. The
IETF wants standards efforts to be productive and able to maintain focus
through working group charters and monitoring of progress. It is in the
interest of the IETF to encourage the contribution of IPR claims can be
used to encourage the progress of a standard, to recognize legitimate IPR
claims that can slow the creation of a standard, and to expose and
discourage false or diversionary claims that interfere with the creation
and adoption of a standard. It is essential to the efficient and timely
function of the IETF that it be aware of IPR issues, preferably at the
time of the working group charter, but it is required by the time
independent implementations are in process. Not everything needs to be
placed into an open standard, but many technologies can be enabled only
by including intellectual property that is privately owned, and the IETF
needs the freedom to be able to evaluate whether demands for licensing
restrictions are sufficiently important to the Internet as whole to
justify an encumbered standard. Since the IETF is a volunteer
organization, special attention should be given to the provisions for
implementations by volunteers and communities that do not profit, and
therefore are not in a position to sign and maintain licenses.

Working Groups

Working groups are chartered to get their job done in a limited period of
time. They want assurances that their efforts are going to be worthwhile.
It is therefore necessary to know whether IPR roadblocks will be erected
that could interfere or even derail their efforts. Therefore the early,
consistent and accurate disclosure of IPR relevant to the evolving form
of the standard is essential to the function of a working group. The
group needs to be aggressive in seeking clarification of IPR relating to
its effort and should make it simple to record and make disseminate. The
WG is best qualified to evaluate and engineer technology proposals, not
legal claims. Assurances of royalty free licenses make the legal
considerations for a working group simple, hence there will always be
some pressure on owner-participants to adopt an RF approach. In cases
where owner-participants insist on licensing their technology, it will
become increasingly important to know whether the terms will inhibit the
fulfillment of the WG's charter as progress advances toward independent
interoperable implementations. The WG should have the freedom to pressure
for more information to use in modulating its efforts in advancing the
standard.

Participants

Individual

Individual contributors acting independent of corporate sponsorship
should be aware that they are expected and personally obligated to reveal
any IPR they own which is essential to implementation of the standards.
If they intend to implement standards and profit from them, and they do
not own or have license to the essential IPR, they should be prepared to
enter into a license. If the individual contributor is sponsored by or in
the employ of a company or organization that owns IPR, and they are aware
of IPR essential to the implementation of an evolving standard, they
share the responsibility of their sponsor to disclose it. Malicious
behaviors to influence the progress of a standard through
misrepresentations, including claims of ownership of essential IPR, is to
regarded as reprehensible and should be recorded as part of the
disclosure process when it is discovered.

Organizations
and Companies

Intellectual Property Rights are conferred by national and community
governments to reward innovators with a limited enforceable monopoly on
their inventions and other creations. These rights permit the owner some
control over the rate of adoption and costs associated with their IPR.
The owner has the option to pursue a wide range of business strategies
for their benefit, ranging from exclusive use through licensing to
partners for a fee or in-kind trade of complementary licenses, and even
to maximizing the rate of adoption through licenses at no cost or without
restriction. An IPR owner participating at a standards body should
recognize that open standards are inhibited by licensing restrictions and
are encouraged to consider whether the relative benefits to the community
and whether they complement their for-profit goals. There are cases where
the tradeoffs between IPR owners can accelerate and broaden adoption of
the standard. Especially in those cases, it is expected that IPR owners
will allow for provisions that enable non-profit and open implementations
by individuals and organizations that may not themselves own IPR or have
legal standing to sign licenses. IPR owners are expected to be honest and
timely in their disclosures of IPR to enable the creation of standards in
working groups. It is inappropriate to conceal, delay, or falsify
disclosures for any reason, but especially in order to manipulate the
activities of a working group to corporate advantage. A working group in
the IETF is not the appropriate place to settle business competitions. It
is an ongoing obligation to be prepared to disclose licensing
requirements and essential claims when requests are made as part of the
working group process. Appropriate disclose or failure to do so should be
a matter of public record.

--------------------------------------------Part
2---Justification----------------------------------------------------------------------------

There is a fourth party, the external entities that own IPR potentially
covered by activities in the IETF but who do not participate and cannot
be expected or compelled to disclose their ownership.

Current legal precedent, at least in the United States [RAMBUSvFTC],
[DELL], requires participants who own IPR and participate in a standards
organization to honestly disclose its existence without deception or
loose the ability to assert their rights.

It less clear what can be done to limit damage by malicious and false
claims of IPR ownership used to manipulate the evolution of the standard
within the IETF, except through an accurate persistent record of good and
bad behaviors in working groups to reinforce participants reputations as
constructive contributors to the IETF.

It follows that is to the IETF’s advantage to shelter the broadest number
of interested participants (call it the “Big Tent Principle”).

Some standards can implemented around IPR if the existence of its
potential barriers is known, others require the IPR to implement. Faced
with weak inefficient or infeasible implementations the standards body
may need to compromise and admit licensing to commercial entities that
can benefit from the promulgation of the standard.

Participants (and their sponsors) in the IETF may have intellectual
property investments in technology that can further standards, and they
may have financial reasons for wanting to limit the relative rate of
acceleration of the technology for which they claim ownership. (Note that
ownership is often claimed, but seldom proven until courts rule on the
matter.) A royalty free licensing policy may speed the adoption of
technology, but it may also limit the return on investment to its owners
and the control of the form an implementation must take. A simple royalty
free license may also limit protection against other overlapping patent
claims that are important to actually create a useful product or service.
This means some owners may want to preserve limited control through some
form of RAND or patent protection trading; that is there may be times
where companies feel compelled to limit openness through the expression
of some form of licensing control on those components of their inventions
that contribute to a standard. But RAND is not enough; it does not by
itself describe terms in an open manner that enables a working group to
take account of the costs and other constraints that may be imposed upon
alternative technical solutions. There also times where a company may
refuse to license and a WG should consider looking elsewhere. In addition
although one or more countries may have legally granted IPR claims (to
one or more parties) by the time a working group is constituted, such
grants may also still be pending as disclosures proceed through diverse
legal systems in parallel with the actions of a working group. Therefore
even the eventual owner of the IPR (and who owns what may not be clear
even after rights are granted within a single national jurisdiction) may
not know what aspects of their IPR activities have application to the
standard. Lastly there may be organizations that have own no IPR or other
tangible assets and have no intention to create any, but which act to
further interoperability through the creation of open and implementations
which are distributed without charge. There should be provisions in
licensing agreements that reflect the unique non-commercial status of
such implementations, and the fact that they do not have the capability
to license. This can greatly complicate the interpretation of the N in
RAND, that is nondiscriminatory licensing terms can have the effect of
fencing out these participants ability to distribute their
implementation.

Companies can use IPR and standards to influence the competitive business
landscape. but those activities are for resolution in the marketplace,
not at a standards body [InformRules].

REFERENCES

[TAO]
http://www.ietf.org/tao.html

[RAMBUSvFTC]

http://www.ftc.gov/opa/2002/06/rambus.htm

Rambus--FTC
Complaint,
06_02.htm

[DELL]

FTC
v. Dell, FTC Press Release,
06_17_96.htm

[InformRules] Information Rules, Carl Shapiro and Hal R. Varian, HBS
Press, Boston, MA, 1999