Subject: Alternate view of the philospophy and process for IPR in a modified RFC 2026

From: Paul Gleichauf <[email-masked]>
Date: Mon, 11 Nov 2002 13:39:28 -0800

A message from Steve Bellovin dated October 22, 2002 to the ietf-ipr-wg 
mailing list contained a statement:
"The Rights and Scenarios documents are not very contentious.  I
think that we can wrap up the open issues with them in Atlanta,
subject to post-meeting ratification on the mailing list."

I have been following the activities of this WG since before Yokahama in 
the hope that the vague treatment of IPR in 2026 would be clarified to the 
point that every conscientious contributor and interested party to a 
standard would know what to do with IPR and when to do it. This message is 
intended to identify what I think is thus far missing from Intellectual 
Property Rights in IETF Technology <draft-bradner-ipr-technology-01.txt>. I 
can post a couple of follow-on messages to offer more detailed constructive 
solutions for debate before the Altanta meeting. It would be unfortunate if 
the attitude upon arriving in Atlanta was that these issues are no longer 
contentious, and that a problem of limited scope has been solved.

There are three readily apparent interested parties at work in the IETF 
standards process: the IETF itself, the working group participants, and 
intellectual property rights holders. A coherent policy for IPR should take 
account of the diversity of these interests. It should be designed to 
encourage and enable all parties to easily know and do the right thing. It 
should not turn working groups into lawyers debating IPR claims and their 
legitimacy. There are two steps that could make this possible.

The first is a clear statement of principles, a philosophy, of what 
constitutes best behavior, or failing that at least acceptable behavior; 
through the social mechanisms of approbation, disapproval, and shunning 
that anchor the IETF.

The second is a well-defined iterative process for soliciting and 
disclosing IPR that is tightly coupled with the evolution of a standard 
through the working group mechanisms already defined in 2026. These 
disclosures should start with submission of a form to the IETF WG which 
includes a selection from a small set of precise policy statements for 
licensing that are more specific and useful to the working group than RAND, 
but not more onerous for IPR owners than appropriate given that a proposal 
does not yet a draft or full standard make. The disclosures should converge 
to a statement of licensing terms by the time two independent 
implementations have been created to advance to draft standard. By the time 
the draft is elevated to full standard licensing should be RF with some 
qualifications to provide defensive protection to IPR holders for their 
donation to the community. The disclosures should be regularly solicited 
and refined by working group chairs, and archived into a searchable public 
database that also functions as a form of social memory of contributions 
and impediments to the standards process.

So, is this in scope, or not?

Paul Gleichauf
[email-masked]

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https://www1.ietf.org/mailman/listinfo/ipr-wg

---

From: Brian E Carpenter <[email-masked]>
Date: Tue, 12 Nov 2002 09:46:16 +0100

This would be an effective way of making it even less likely than today
that any document is ever classified as Standard.

Paul, you haven't identified a problem that calls for such a contentious
solution, as opposed to the non-contentious clarifications in the
current draft.

   Brian

---

From: Paul Gleichauf <[email-masked]>
Date: Tue, 12 Nov 2002 10:19:47 -0800

Brian,

>that any document is ever classified as Standard.

I have been told that most of the Internet runs on Proposed, not Full 
Standard protocols, but the core of the argument is that openness is more 
difficult the more restricted the licensing model.

>solution, as opposed to the non-contentious clarifications in the

If you found the restrictions on Full Standard the (most) contentious part 
of my statements, then perhaps the very slow rate promotion to the ultimate 
category is the proof, but I don't think it is central to the argument of 
providing a process for simplifying the navigation of WG around IPR.

The simplest statement is that a RAND statement is insufficiently useful, 
and the language I have read around RFC 2026 and its modification so far 
does not help guide how to make it more so.

The broadest-based participation under the IETF umbrella benefits the 
Internet community, but that requires the ability to recognize and adjust 
for IPR claims.

Since RFC 2026 was first crafted IPR disclosure has become more coupled 
with the crafting of standards.

When work on a standard is initiated, it is important to know who has IPR 
at stake and to encourage them to disclose its impact.

At the early stages of working group development relevant IPR may be 
pending, or it may not be clear what claims are relevant until the standard 
advances.

Licensing POLICY is more important than claims coverage to early working 
group progress.

A very few types of IPR license policy should cover the vast majority of 
cases. A suggested initial set are 1) RF, 2) RF with defensive rights, 3) 
RAND [with an obligation to be more specific before advancement to 
Proposed], 4) No license [WG needs to reevaluate based upon specific claims 
or charter], 5) Other [WG needs to escalate discussions with IPR owner and 
IESG subcommittee to determine how to proceed or reach agreement on 
placement in earlier categories.]

Licensing TERMS are more important by the time implementations are ready, 
and given most WG timescales, pending IPR grants have usually been resolved 
by the time a standard reaches proposed status.

A systematic coupled process to reach IPR convergence as part of the 
evolution of the standard's technology would simplify the operation of WG's 
and would also guide IPR owners on what they need to do and when they need 
to do it.

There are some other reasons, but those are the ones I think most relevant.

Paul

---

From: Brian E Carpenter <[email-masked]>
Date: Wed, 13 Nov 2002 12:05:53 +0100

Paul,

Let me be very explicit, since you are challenging a very long
held consensus in the IETF.

1) If the IETF gets into the business of dealing with details
of license regimes, the task of the WG chairs, ADs, etc. will become
dominated by dealing with these issues instead of what they are
supposed to be doing, i.e. facilitating the best possible technology
design. It would not, as you assert, simplify the WG's operation;
it would substantially complicate it. 

1a) Since the IETF is not incorporated, we would need legal advice,
but I suspect these people would also become personally liable for
any misjudgements, errors, and omissions. Personally, I wouldn't
want to be a WG chair or AD in those circumstances.

2) If the IETF attempted to move from a RAND to an RF requirement
(as opposed to an RF preference), then companies unwilling to accept 
this would simply withdraw from the IETF, wait until the standard was
published, and then start collecting royalties. This isn't theory;
it's already happening elsewhere. 

   Brian

---

From: "Reb Thomas" <[email-masked]>
Date: Wed, 13 Nov 2002 10:09:59 -0500

For what it is worth, I favor Paul's approach.  I don't think that the IETF
can duck the issue of license details, but I also think that 3-4 choices of
standard license approaches would minimize any WG chair or other party's
time spent dealing with these matters.  In some situations the IETF may need
legal advice but hasn't that been the case in the past as well?  If not (the
IETF would have to count itself lucky to have never needed legal advice)
then I cannot see where these ideas are so radical as to start forcing the
IETF to change its methods of operations.  I especially wish to address your
point 2).  As things stand, companies have this opportunity today, but the
natural desire to want their ideas, technology, etc to be the "standard"
approach is such a strong motivator that they naturally want to participate
and possibly shape the WG's chosen directions.  The fact that they might
have to have their management and legal look at the licensing issues in that
process of working with the standards formation WG is a net positive in my
estimation.

Regards,

Calhoun "Reb" Thomas, III
Thomas Law Firm
1201 Main Street, Suite 1980
Columbia, SC 29201
803-748-1303 (office)
803-261-1721 (mobile)
803-787-9959 (fax)
[email-masked]

-----Original Message-----
From: [email-masked] [mailto:[email-masked]]On Behalf Of
Brian E Carpenter
Sent: Wednesday, November 13, 2002 6:06 AM
To: Paul Gleichauf
Cc: [email-masked]
Subject: Re: Alternate view of the philospophy and process for IPR
inamodified RFC 2026

Paul,

   Brian

---

From: Paul Gleichauf <[email-masked]>
Date: Wed, 13 Nov 2002 08:31:45 -0800

Brian,

>held consensus in the IETF.

Fair enough. I am asking for a reevaluation of the consensus at an 
opportune time, but this is not a personal crusade.

>it would substantially complicate it.

I am trying to argue for general enough framework that for the vast 
majority of cases no such  involvement will be necessary. I would welcome 
broad input from WG chairs, past and present, for alternative mechanisms.

>want to be a WG chair or AD in those circumstances.

I don't see why beyond the initial language describing the categories, a 
one time effort by an IETF engaged attorney which was originally applied to 
RFC 2026 and is again being applied against Scott Bradner's modifications. 
Any other legal counsel would be engaged by the IPR contributors to fit 
their contributions into one of the categories. The only exception is the 
Other case. If it turns out that Other is not the exception, then we would 
have badly crafted the preferred categories.

>it's already happening elsewhere.

The options I listed are in order of preference. RF with defensive rights 
is the one I personally would rank first, but I was not sure whether that 
would be the consensus. I take it you think that RAND (number 3 in the hit 
parade) is phrased in such a way that it makes its use impossible for 
companies? Then the language for that option needs to be changed, since my 
intention is to make sure that everyone can shelter under the 2026 
umbrella, not to drive contributors away. There is nonetheless a bias 
toward forms of RF for use in open standards. I also have read with some 
care what is happening elsewhere (in particular the W3C concerns me), and 
do not want this discussion to head down some of those blind alleys.

Paul

---

From: Harald Tveit Alvestrand <[email-masked]>
Date: Fri, 15 Nov 2002 17:47:55 +0100

Paul,

I particularly liked this section of your message, and think we should 
expand on it some more....

--On 11. november 2002 13:39 -0800 Paul Gleichauf <[email-masked]> 
wrote:

> intellectual property rights holders. A coherent policy for IPR should
> take account of the diversity of these interests.

Trying to be explicit about what the interests of the parties are:

- The IETF as an organization has as an overarching concern "don't get 
sued". Losing a single million-dollar lawsuit could ruin the IETF's 
economy; in the present state of the US court system, winning one could be 
almost as disruptive.
So lots of the "rights in technology" documents are about making sure the 
IETF never makes a statement that is so clear that it can be sued for it 
(sarcastically speaking).

- The working group participants want to implement (or use) the standard 
they are specifying. They want to be able to do so while spending as little 
time on IPR issues as possible - because spending time on IPR issues costs 
real money, has no benefit to the implementor, and is no fun.

- The IPR holders want to have return on their investment in IPR.
This return may, but need not, take the form of royalty payments for use of 
technology. (Other variants are mutual-license pacts, "payment" in the form 
of bragging rights, or just the ability to see the technology prosper).

The interests need to balance somewhere. Where, I'm not sure.

                           Harald