Subject: Request for re-charter of the IETF IPR working group

From: [email-masked] (Bruce Perens)
Date: Thu, 14 Nov 2002 12:21:44 -0800 (PST)

Steve, Rob, Members,

I was planning to make this request at the face-to-face, but I think we should
start talking about it now, because we haven't scheduled very much time to
discuss it on Monday.

I request that the IETF IPR working group re-charter itself to modify the
current patent policy.

All of the major problems I see in the policy seem to also be counter
to the spirit of IETF as a whole. I'd like to see the policy modified
to remove these problems:

1. Allows royalty-bearing patents to be embedded in IETF standards,
   locking out a key implementor.

	The requirement for so-called "reasonable and non-discriminatory"
	patent terms allows technology covered by royalty-bearing patents
	to be embedded in IETF standards.

	Royalty-bearing patents are not accessable to Open Source / Free
	Software implementations. Free Software implementors don't collect
	their own royalties, and thus can't afford to pay royalties to others,
	no matter how small. I'll spare you the lecture regarding how
	absolutely critical Open Source is to the Internet - anyone familiar
	with IETF standards would probably know.

	The IETF policy should be that patented technology embedded in IETF
	standards by the working group members must be available for the use
	of all implementors without royalty or discrimination. In order to
	protect the right of the patent holder to license their patent, the
	grant of rights to implementors may be limited to only that work
	necessary to implement the standard.

2. Allows discriminatory license terms.

	License terms that can discriminate against certain implementors
	are allowed by the current policy, which only verifies
	whether or not the terms are "reasonable and to some degree
	non-discriminatory" by requiring that there are at least two
	independent implementations. We need to set a much higher standard
	than that regarding discrimination.

3. Places an excessive legal burden upon every implementor.

	The current policy does not make any assurances that an implementor
	would actually have the right to implement a standard. While some
	degree of due diligence on the implementor's part is necessary, the
	implementor should have a base of knowledge provided by the working
	group from which to start. That should include a list of patent claims
	that the working group has observed may be essential to exercise the
	standard, and the grants associated with those claims. This list should
	be provided with the proper disclaimers, as it can not possibly be
	exhaustive. Without such information, each implementor must start anew
	to discover whether or not they have a right to implement. This
	would cause a larger-than-necessary legal burden repeated by every
	single implementor, and would probably act to filter out small
	proprietary developers and Open Source.

4. Promotes strife within the WG.

	The absence of sufficient overall policy means that every WG has
	to fight a battle among its own members regarding whether their
	patents will be allowed to be embedded in its standard, or not.
	Better policy would allow patents to be included when sufficient
	grants are made and not otherwise, bypassing a major cause of
	strife among the WG members.

5. Makes the implementors of IETF standards subject to extortion by the
   crafters of submarine patents.

   	Creators of submarine patents can extort a royalty payment in arrears
	from all existing implementors of a standard. The only defense against
	this is for IETF to have a policy that it will withdraw a
	recommendation when it comes to IETF's knowledge that the
	recommendation is likely to infringe upon a patent without
	the necessary grants, thus acting to cut off the revenue stream
	of the patent holder.

	If we don't have this policy, we set ourselves up to be the victims
	of repeated extortion.

I don't know if the following is within the charter of the IPR group,
but it needs looking into by some WG:

6. Provides no liability protection to working group members or staff,
   discriminates against participation in the WG by small companies and
   independent developers.

	In an environment of litigious patent holders, the working group
	members and staff are exposed to the threat of lawsuit by implementors
	who have been damaged, and patent holders who consider their claims to
	have beeen infringed. Employees of large companies probably are
	protected by their employers, employees of smaller companies may not
	be, and everybody who serves on a working group without the explicit
	sponsorship of their employer does so at their own risk. The effect
	of this is to discriminate against participation in working groups
	by employees of smaller companies and people who do so without
	employer sponsorship.

The overall policy seems to act to prevent a working group from dealing
with many of the problems presented by the patents embedded in standards,
and offloads the burden onto each and every implementor. I submit that
this creates a presumption that implementors will _not_ have the right to
implement an IETF standard, and an immense duplication of legal effort by
those who wish to secure the right to implement. It thus sets an artificialy
high hurdle that would discriminate against many implementors.

In today's litigious climate, it is no longer possible for the working
group to ignore the problem of software patents. The working group should
determine, to the best of its knowledge, whether or not all implementors
will actually have a right to implement the standard, and should provide
implementors with the information that the working group used to make that
determination.

Everything that I am complaining about is also counter to the spirit of IETF.
The current practice needs to be amended to be in line with the spirit of
the organization.

	Thanks

	Bruce Perens
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---

From: James Love <[email-masked]>
Date: Fri, 15 Nov 2002 15:16:01 -0500

This is an aside, but Ralph Nader and I have met with Mitch Daniels, the 
Director of OMB, and talked about extending cost benefit analysis to the 
patent system, or at least, on some issues relating to the scope of patents. 
   Note also that under the proposed WIPO Substantive Patent Law Treaty, the 
US is pushing for global rules on patent scope that are extremely broad,

	"can be made or used for exploitation in any field of
	[commercial] activity."

which is specifically designed to extend all members into patenting business 
methods and other things.  See: 
http://lists.essential.org/pipermail/random-bits/2002-November/000962.html

Are there parties in the IETF or elsewhere who are interested in the issue 
of an OMB cost benefit evaluation of some of these issues, or in the SPLT 
negotiations?

Jamie

-- 
------
James Love, Consumer Project on Technology
http://www.cptech.org, mailto:[email-masked]
voice: 1.202.387.8030; mobile 1.202.361.3040

---

From: Brian E Carpenter <[email-masked]>
Date: Sat, 16 Nov 2002 14:46:58 +0100

Bruce,

For the record, I am against any such change in the IETF's policy. The
current policy simultaneously matches our open engineering ethos as 
well as the reality of how our industry and international intellectual
property laws work. It would be foolish to throw that balance away
for the sake of a quixotic vision.

So, I against any such re-charter.

  Brian

---

From: Alexandre Dulaunoy <[email-masked]>
Date: Sat, 16 Nov 2002 15:39:35 +0100 (CET)

> So, I against any such re-charter.

The current RAND usage in  Industry is not favorable for Free Software
implementation,  Scientific  Implementation  and  large usage  of  the
standard.  I don't  think  this is  a  quixotic vision,  we have  some
well-known  case with  issue regarding  RAND. (For  example,  the VRRP
implementation in the OpenBSD kernel,  SRP or the "wonderful" BGP MPLS
multi-claim about the graceful restart)

Could  you imagine  the initial  TCP/IP stack  implementation Berkeley
Unix  using  a non-RF  license  ?  RAND is  not  a  motor to  standard
implementation, it slows down the usage of the standard. 

Have a nice day.

adulau

-- 
--			      Alexandre Dulaunoy -- http://www.foo.be/
--         http://pgp.ael.be:11371/pks/lookup?op=get&search=0x44E6CBCD
"People who fight may lose.People who do not fight have already lost." 
							Bertolt Brecht

---

From: [email-masked] (Bruce Perens)
Date: Sat, 16 Nov 2002 08:15:39 -0800 (PST)

From: Brian E Carpenter <[email-masked]>
> for the sake of a quixotic vision.

Thanks, Brian. Rather than quixotic, I am just trying to preserve the way
we make software. The alternative for us if the patent policy isn't
appropriate for use with Open Source is being locked out of the process of
being able to implement IETF standards entirely. So, rather than
quixotic, it's simple self-presentation.

I must comment that IBM's position is self-contradictory. The company
is at once the biggest software patent holder, and also makes a lot of
noise about its Linux support. Your company is selling systems based on
software that I wrote, and for which I haven't been compensated, while
at the same time trying to increase the chance that I will be faced
with civil penalties for patent infringement simply for distributing
that same software.

This is also the case with Motorola, which is about to announce the
acquisition of a company that features a piece of Open Source software
that I created as a critical component of its only product. That software
implements a number of IETF standards.

Folks, if you're going to benefit commercially from the software, without
any compensation to its creators, you shouldn't be simultaneously fighting
to kill the way we make that software.

	Thanks

	Bruce

---

From: Doug Johnson <[email-masked]>
Date: Sat, 16 Nov 2002 11:24:19 -0500

Brian,

A re-charter of the WG to review IETF's IPR policy is no guarantee of adoption
of a W3C-like royalty free policy. It would appear to me that the level of
discussion here would support a re-charter, which would then led to a fuller
airing of the issues you and others cite. How can that be bad?

Also, while you correctly note salient differences between W3C and IETF, it is
certainly true that the IETF generally concerns itself with technology "lower in
the stack"; that alone suggests to me that strong preferences for RF are even
more important in the IETF than W3C. Ultimately, I believe, RF leanings will
have considerably more success in creating widespread, robust and interoperable
protocols. Bruce's issue with regard to open source implementations is but one
example of why this may be true.

Regards.

--
Doug Johnson

---

From: Brian E Carpenter <[email-masked]>
Date: Sat, 16 Nov 2002 17:58:28 +0100

"We" make software in various different ways, only one of
which is open source.

   Brian

---

From: Brian E Carpenter <[email-masked]>
Date: Sat, 16 Nov 2002 18:03:36 +0100

Doug,

Why don't we execute the current charter first?

   Brian

---

From: Doug Johnson <[email-masked]>
Date: Sat, 16 Nov 2002 12:30:05 -0500

Brian,

The latter half of the IPR agenda is spcifically to address the "way ahead". You
are not suggesting that re-charter discussions are out of scope for the current
working group, are you?

From Steve's agenda for tha Atlanta meeting:

  But the charter also says "If there consensus of the working group
  for a different IPR policy than the one described in RFC 2026, the
  working group will seek to amend its charter to make it clear that
  it is changing the status quo."   The open mike session will primarily
  be dedicated to that question -- do we want to recharter to change
  our IPR policy?  The final 15 minutes will be for assessing the
  consensus of the WG on our future path.

Sounds to me like possible re-chartering _is_ part of the existing charter.

Regards.

--
Doug Johnson

  [NB - leaving for Atlanta following this post. Do not interpret silence as
agreement :-)]

---

From: Keith Moore <[email-masked]>
Date: Sat, 16 Nov 2002 13:36:38 -0500

> It would appear to me that the level of 
> discussion here would support a re-charter

the group does not decide its own charter.  that's not how it works.
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---

From: Keith Moore <[email-masked]>
Date: Sat, 16 Nov 2002 13:47:40 -0500

> "We" make software in various different ways, only one of

and I'd argue that "we" place tremendous value on open source software,
and most of us are keenly aware of the necessity to preserve the ability 
to produce open source software that implements IETF standards.

however, that doesn't mean that we believe that we can constrain the 
behavior of participants' employers, nor that we believe that attempting 
to do so would solve the IPR problem.

in the vast majority of cases I've seen, solid evidence of IPR encumberance 
on a technology, without an offer of RAND and usually RF licensing,
has been sufficient to prevent a standard from using that technology.
the process that we have seems to work.  most of the IPR problems we have 
seem to be either IPR that was disclosed afterward (usually by someone not 
involved in the working group) or IPR that applies to a specific protocol 
extension that the market, not IETF, demands.

Keith

---

From: Brian E Carpenter <[email-masked]>
Date: Sat, 16 Nov 2002 19:56:34 +0100

I meant what I said, very precisely, after re-reading the charter.

   Brian

---

From: [email-masked] (Bruce Perens)
Date: Sat, 16 Nov 2002 17:40:07 -0800 (PST)

> "We" make software in various different ways, only one of

Of course. And I appreciate the excellent people that I work with in
your company, and the positive things they do for Linux, including the
proprietary software they've put on our platform.

Please don't assume that I'm here to take the role of Richard Stallman.
My position is that Free Software and proprietary should compete upon
their merits, on a level playing field. I'm just trying to get it level.

Brian, there is a quid-pro-quo in engaging the Open Source community as
IBM has. I don't see how IBM can maintain the public position that you
took in your last comment to me, without also damaging its Linux business.
You should huddle upon this with other people in your company.

	Thanks

	Bruce

---

From: [email-masked] (Bruce Perens)
Date: Sat, 16 Nov 2002 17:54:49 -0800 (PST)

From: Keith Moore <[email-masked]>
> the group does not decide its own charter.  that's not how it works.

I am an IETF beginner, so please feel free to enlighten me with selections
from the charter and other documents. I'll also attend the beginners
introductory sessions tomorrow.

That said, my perception was that the group requests to IETF that it
be re-chartered. I also see that discussion of re-chartering is on the
agenda for Sunday, so I don't believe that there's any valid argument
that discussions of rechartering are not in scope.

	Thanks

	Bruce

---

From: Brian E Carpenter <[email-masked]>
Date: Sun, 17 Nov 2002 13:44:26 +0100

Bruce,

As you are aware, we all speak as individuals in the IETF.

   Brian

---

From: [email-masked] (Bruce Perens)
Date: Sun, 17 Nov 2002 07:37:57 -0800 (PST)

> As you are aware, we all speak as individuals in the IETF.

OK, I'll keep that in mind. I've just been working with a whole lot of
the same people at W3C, where they were definitely representing their
companies, and I was representing an organization and the Free Software
community in general. I still consider that I'm representing those folks.

There's a continuing refrain "our company will walk out" around RF patent
policy discussions. Not that any company has. I'll keep in mind that if I
hear it here, it's not representing the company.

	Thanks

	Bruce

---

From: Bruce Perens <[email-masked]>
Date: Sun, 17 Nov 2002 22:15:49 -0800

Chuck,

I'll assume that you're representing Motorola, as you did on the W3C
patent policy board.

I was not objecting to companies making money with my software. Indeed,
when I wrote the Open Source Definition, I explicitly required that it
be possible for companies to make commercial use of software under any
of the licenses that would be accepted by the Open Source Initiative.

Rather, I was claiming that companies were not observing the quid-pro-quo.
Your company should not try to lock me, and the other Open Source
developers, out of the ability to implement IETF standards at the same
time that your company includes my work in its products. Keep the money
you make, you're welcome to it, just don't attempt to shut down the
people who helped you make it.

Nor am I advocating the Open Source business model over all others.
Indeed, I am the author of much proprietary software. If you've seen the
movies "A Bug's Life" and "Toy Story II", you'll notice that I am listed
in the credits of those films, for helping to produce the proprietary
software used to make them.

Instead of advocating a policy that would advantage Open Source, I am
advocating a policy that would allow both Open Source and proprietary
software developers to implement all IETF standards equally well. A
policy that would allow one community and lock out the other would
be unacceptable.

It's obvious that the IETF decision structure is not designed to work
for anything but technical problems. I regret that this isn't the world
that IETF was born in - a world in which patents had a much more narrow
scope and even a shorter term. People outside of IETF have messed up the
system that IETF must exist within. IETF will have to deal with that
mess by making a contentious and non-technical decision in which there
will _not_ be unanimity.

IETF has an overall royalty-free policy, this is clear from its standards
and the history of its working groups. The present policy was formed at
a time when IETF would have to fight off a patent in the working groups
once a year or so. IETF technical working group members are so used to
being able to win that fight that they refer to the IPR working group as
"a safe place for dangerous people to play". But when we have to fight
off the dangerous people every month or week rather than every year,
a policy document that better matches what the working groups do with
patents today will be essential.

No matter how many companies choose to play nice, IETF will still be faced
with deliberate patent farming of new standards by some avaricious WG members,
with back-dated patent applications by eavesdroppers on the WG, and with
submarine patents on released standards. We're going to have to come up with
strategies for handling all of that.

I don't claim that it's easy or nice. The year that you and I have just spent
wrestling about this at W3C is proof enough that it's not. But it's necessary
for us to work on this.

	Thanks

	Bruce Perens

On Sun, Nov 17, 2002 at 10:40:23PM -0600, Chuck Powers wrote:
> Bruce,
> 
>    I think your comments clearly underscore why the proposal you have made is not an appropriate topic for the IPR working group to consider (and for which there is nowhere close to consensus for considering; in fact, it is about as far from consensus as we could get).
> 
>    The IETF is an organization dedicated to developing good technical standards for the Internet; it is not an organization intended to be a tool for one particular community to advocate their business model over all others. Unfortunately, as your comments illustrate, that is really what this discussion breaks down to - it isn't a standards discussion, it is a business philosophy discussion; as such, it doesn't belong in the IETF.
> 
>    The Open Source community has collectively developed some widely-used software solutions; for that they are to be applauded. In doing so, you have also chosen a business model to pursue - more power to you in these endeavors. However, to complain that some companies are making money with software that you were not compensated for developing is no argument for a new IETF IPR policy; you made the choice to not receive compensation. If other companies make alternative business choices, even leveraging Open Source software (in compliance with the relevant Open Source licensing terms), so what? That is their choice.
> 
>    The current IETF IPR policy, in general, has worked for us quite well; in a few situations, IPR has been encountered, and dealt with. I do believe that the disclosure policy should be clarified in places; this will help address questions which repeatedly come up. Creating a disclosure "form" (assuming it has relevant choices), and clarifying when disclosure should be made, would help. There are a few other major points that need clarification; other than that, it ain't broke, and doesn't need to be fixed.
> 
>    IMO, a proposal for revamping the entire IETF IPR policy (and possibly the entire organization) into a forced RF zone looks, at best, like a solution looking for a problem, and at worst, an attempt at driving a business model agenda into the IETF, which I think is totally inappropriate for the IETF to consider. Let's just get back to the job of creating the best technical standards, which is what we are supposed to be doing.
> 
> regards,
> 
> chuck
> 
> 
>    
> 
> > -----Original Message-----
> > From: [email-masked] [mailto:[email-masked]]On Behalf Of
> > Bruce Perens
> > Sent: Saturday, November 16, 2002 10:16 AM
> > To: [email-masked]; [email-masked]
> > Cc: [email-masked]; [email-masked]; [email-masked]
> > Subject: Re: Request for re-charter of the IETF IPR working group
> > 
> >

---

From: Randy Bush <[email-masked]>
Date: Sun, 17 Nov 2002 23:26:35 -0800

> I'll assume that you're representing Motorola

IETF people will assume that he is not representing any company,
as IETF folk don't do that.

randy

---

From: [email-masked] (Bruce Perens)
Date: Mon, 18 Nov 2002 00:16:56 -0800 (PST)

> I'll assume that you're representing Motorola

From: Randy Bush <[email-masked]>
> as IETF folk don't do that.

Randy,

Let me elaborate on the role reversal I alluded to. At W3C, I represented
Software in the Public Interest, the corporation behind Debian and some
other Open Source projects. I was, at the time, an employee of HP, but
HP was represented on that working group by one of their attorneys. The
folks on Chuck's side of the argument repeatedly tried to have me
dismissed from the WG, accusing HP of having dual-representation because
of my presence on the working group. They weren't willing to take my
word regarding who I was representing. So, I do find it ironic that
we'll see some of those same folks this morning, not representing their
employers.

	Thanks

	Bruce

---

From: jeremy hunsinger <[email-masked]>
Date: Mon, 18 Nov 2002 08:13:39 -0500

ietf does usually assume this 'mask of neutrality' position, but in 
nearly all cases recently one can intuit quite easily the 
manifestations of certain interests through the actions of individuals. 
   everyone knows this occurs(though some possess unlimited ability to 
deny it), and I've seen at least one paper/article analyze this 
phenomena (and i expect more), but alas this is the place to discuss 
it.  the norms are the norms, we should try to use arguments from a 
different basis here, though i think it is necessary to point out when 
someone is putting forth an argument that appears, even when structured 
otherwise, to be directly in support of certain interests.

> as IETF folk don't do that.
jeremy hunsinger
[email-masked]
on the ibook
www.cddc.vt.edu
www.cddc.vt.edu/jeremy
()  ascii ribbon campaign - against html mail
/\                        - against microsoft attachments

---

From: James Love <[email-masked]>
Date: Mon, 18 Nov 2002 08:12:30 -0500

What are the possible topics areas that a re-charter of the IETF IPR working 
group might consider?

   Jamie

------

---

From: "Chuck Powers" <[email-masked]>
Date: Sun, 17 Nov 2002 22:40:23 -0600

Bruce,

regards,

chuck

---

From: jeremy hunsinger <[email-masked]>
Date: Mon, 18 Nov 2002 09:43:14 -0500

On Sunday, November 17, 2002, at 11:40 PM, Chuck Powers wrote:

> Bruce,
>
>    I think your comments clearly underscore why the proposal you have 
> made is not an appropriate topic for the IPR working group to consider 
> (and for which there is nowhere close to consensus for considering; in 
> fact, it is about as far from consensus as we could get).
>
>    The IETF is an organization dedicated to developing good technical 
> standards for the Internet; it is not an organization intended to be a 
> tool for one particular community to advocate their business model 
> over all others.

one problem with this is that the competing business models in terms of 
property are already implicitly being written into the workign group.

and open source can be a business model.  it need not be.  in this 
context, it should not be considered as such.  Portraying it as such 
displays your interest in making this seem less technical than it could 
be in order to end the conversation on the basis of its non-technical 
nature.

>  Unfortunately, as your comments illustrate, that is really what this 
> discussion breaks down to - it isn't a standards discussion, it is a 
> business philosophy discussion; as such, it doesn't belong in the > IETF.

it is a standards discussion.  It is about: what IS a standard, what 
are the grounds for a thing to be CALLED a standard, etc...?  There is 
actually much debate around this.  One basic tenet for a standard that 
some people put forth is that it should be open and unencumbered by 
property, which seems to have been the trend until lately.
>
>    The current IETF IPR policy, in general, has worked for us quite 
> well; in a few situations, IPR has been encountered, and dealt with. I 
> do believe that the disclosure policy should be clarified in places; 
> this will help address questions which repeatedly come up. Creating a 
> disclosure "form" (assuming it has relevant choices), and clarifying 
> when disclosure should be made, would help. There are a few other 
> major points that need clarification; other than that, it ain't broke, 
> and doesn't need to be fixed.

when you hear the grindings and whirring of gears in a transmission 
assembly growing in loudness, do you not investigate, and replace even 
though it is not broke? eventually it  may break, and that will be too 
late. If the dictum "The Internet is for Everyone" holds, then 
encumbering standards with property rights undermines the ability to 
provide internet services to certain populations which may be hindered 
by capital or contract(which are the implicitly accepted business 
models above).  Both of which stifle innovation and progress that have 
been traditionally provided by certain non-corporate sectors, such as 
the open source community, but also academia and other arenas.  A 
standard, if one actually believes in the value of having an Internet 
for everyone or extra-corporate research arenas, probably can't be 
encumbered as such.  But, not everyone accepts the same principles...  
So, in short, the problem, a social problem based on technical 
standards that problem we can call exclusion, exists for a wide variety 
of people, more than could join this list comfortably, and not seeing 
it as a problem is perhaps part of the problem.    However, one 
solution to the problem has been to provide open and unencumbered/free 
standard solutions, such as open source and academic communities 
typically provide.

However, there is no good reason why profit oriented practices could 
not operate within the same exact framework.  They just have to give up 
monopoly property rights to encumbered standards in order to do so.

jeremy hunsinger
[email-masked]
on the ibook
www.cddc.vt.edu
www.cddc.vt.edu/jeremy

---

From: Brian E Carpenter <[email-masked]>
Date: Mon, 18 Nov 2002 16:16:28 +0100

Bruce Perens wrote:

...
> IETF has an overall royalty-free policy, 

This is news to those of us who have been developing technical
specs in the IETF for the last N years. 

   Brian

---

From: Keith Moore <[email-masked]>
Date: Mon, 18 Nov 2002 11:00:30 -0500

> but in nearly all cases recently one can intuit quite easily the

it's dangerous to make such assumptions.  certainly I know individuals
who appear to break this rule.  OTOH I've seen far too many misunderstandings
from people who assumed they knew a speaker's agenda based on his/her
employer, and who didn't bother to actually read or listen to what the 
speaker was saying.
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---

From: Keith Moore <[email-masked]>
Date: Mon, 18 Nov 2002 10:56:54 -0500

> I'll assume that you're representing Motorola, as you did on the W3C

if he is, he's violating IETF rules.

if indeed that is the case, I trust he will apologize.
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---

From: Gabe Wachob <[email-masked]>
Date: Mon, 18 Nov 2002 09:43:32 -0800 (PST)

I think its a blatant fiction to say that everyone who participates in
IETF groups does not promote the interests of their employers. Its human
nature. And in many cases, it is in the explicit job description of some
participants to represent their employer in standards groups. It may be
against the "rules", but that doesn't mean it doesn't happen.

Lets be real. Different folks have different motivations for
participating. Some people participate and promote the interests of what
they perceive to be the "public good" independent of their employers
interests - and I suspect an large number of people participate primarily
to influence standards to aid their employers.

And this is probably a GOOD thing, to a limited extent.

Whats changed recently is that patents and IP claims in general have
started to get out of hand (thats the perception at least and the reason
this WG exists, I believe). Also, as evidenced by Bruce eloquent appeals,
the Open Source software community has begun to see itself as a interest
that must be protected in the face of cynical, overreaching use of IP.

Any policy needs to be based on REALITY, not on a pollyannish view that
everyone is participating on their own behalf and not on behalf of their
employer. On the other hand, I do think that the core spirit of IETF, as
so many of the "old timers" here will vigorously point out, is one of
engineering for the "public good" - that is, engineering to produce the
best Internet possible for the widest number of users. The IETF is not
PRIMARILY about corporate interests and influence, but to deny their
existence is to disconnect from reality.

In short, we can't have a reasonable conversation if we believe either
extreme to be the case.

Thanks

	-Gabe

-- 
Gabe Wachob                       [email-masked]
Personal                       http://www.wachob.com
Founder, WiredObjects    http://www.wiredobjects.com

---

From: Scott W Brim <[email-masked]>
Date: Mon, 18 Nov 2002 13:14:02 -0500

On Sun, Nov 17, 2002 10:40:23PM -0600, Chuck Powers allegedly wrote:
>    standards for the Internet; it is not an organization intended to
>    be a tool for one particular community to advocate their business
>    model over all others. Unfortunately, as your comments illustrate,
>    that is really what this discussion breaks down to - it isn't a
>    standards discussion, it is a business philosophy discussion; as
>    such, it doesn't belong in the IETF.

It is precisely because the IETF should not advance one business model
over another that we should consider the question of whether our
policies are anti-OSS.

>    well; in a few situations, IPR has been encountered, and dealt
>    with. I do believe that the disclosure policy should be clarified
>    in places; this will help address questions which repeatedly come
>    up. Creating a disclosure "form" (assuming it has relevant
>    choices), and clarifying when disclosure should be made, would
>    help. There are a few other major points that need clarification;
>    other than that, it ain't broke, and doesn't need to be fixed.

Most IPR encounters up to now have been painful imho, and the frequency
of IPR encounters is increasing rapidly.  Times have changed, and the
future is not the past.

---

From: Keith Moore <[email-masked]>
Date: Mon, 18 Nov 2002 17:14:59 -0500

> against the "rules", but that doesn't mean it doesn't happen.

It is very clearly against the rules.  I don't doubt that it happens,
but if I had solid evidence that someone had been engaged in such 
activity I would do my best to see legal action taken against that person.

Keith

---

From: "Lawrence E. Rosen" <[email-masked]>
Date: Mon, 18 Nov 2002 14:18:15 -0800

Hi Chuck,

I listened to your arguments at the W3C Patent Policy WG and I'm hearing
them again here.  I don't find them any more persuasive here than there.
Granted, the IETF's policies and procedures are different from the W3C,
but the problems posed by patent-encumbered industry standards are
exactly as we described them then.  If companies charge royalties or
impose other onerous conditions for anyone to practice industry
standards for software, then software providers and their customers are
all denied essential opportunities to practice those standards, to
everyone's disadvantage.  

It is not fair to characterize this discussion in terms of business
models -- unless by that you mean only the model of *your* business to
license its patents for royalties.  And even there, I have often
acknowledged, you have a legitimate business objective that I won't
prevent you from seeking.  What is NOT appropriate, however, is for you
to charge royalties to practice industry standards.  In other words, I
won't challenge your right to license your patents to anyone you want
for whatever price the market will bear, but DON'T put us in the
position of adopting that patented technology for industry standards
under royalty-bearing terms.  

You have been quite correct in reminding us that it is not just the
patents of those who participate in the standards-setting process that
matter.  We all fear some out-of-left-field patent that, we may suddenly
learn, encumbers an industry standard.  I personally advocate that we
should revoke such standards rather than let someone profit in that way
off of technology considered an essential standard by the industry.
Other alternatives worth considering are defensive suspension and
reciprocity provisions that prevent third parties from spitting in our
soup.  

These are all topics that we ground into fine powder at W3C meetings and
that I'm willing -- indeed anxious -- to grind again here in IETF.  This
organization cannot now avoid these topics, even if, as you suggest,
IETF has avoided them in the past.  This is not "a solution looking for
a problem," because the problem really exists.  And once again it is not
"an attempt at driving a business model agenda," except to the extent
that patented-encumbered industry standards are unfairly costly to
almost everyone's business model.

/Larry Rosen

---

From: Gabe Wachob <[email-masked]>
Date: Mon, 18 Nov 2002 17:34:24 -0800 (PST)

I can't find any documentation that states that individual members cannot
represent the interests of their employers -- though that may be for a
lack of knowing where to look. In fact, quite to the opposite, I note that
most RFCs list the corporate or organizational affiliation of the RFC
authors. Presumably this is done both to give notice to readers of the
bias or motivations of the authors and to give credit to those
organizations sponsporing the efforts of those authors.

The status of employers w/r/t to the employee's IETF work product seems
ambiguous to me. Many employers have clauses in their employment contracts
essentially requiring employees to assign to the employers all IP
developed while employees (whether on the job or not). It may turn out
that no matter how much a contributor *wants* to contribute IP, they may
be contractually obligated to refrain from doing so. So, whether or not
they "represent" their employes may be irrelevant.

I would also note that "represent" is an ambiguous term in this context
since we can assume that employees frequently believe in the technical
directions their employers are going, as well as an employers' right to
certain IP. As a pratical matter, I'm not sure how you'd prove an employee
represented their employer as separate from representing their own
interests -- an employee may simply believe their employer's technology is
better, regardless of possible IP encumberances.

This is the difficulty of not having a formal role for employers in the
IETF. As someone else pointed out, the past is the past and the future is
the future - what worked until now may be a recipe for a train wreck in
the future. Lets not bury our heads in the sand and pretend that we can
simply ignore these issues with threats of chasing employers away with
litigation, thus possibly causing them to prevent their employees from
participating in *any* IETF work at all...

There is balance to be found here.

	-Gabe

---

From: Brian E Carpenter <[email-masked]>
Date: Tue, 19 Nov 2002 03:01:28 +0100

Gabe Wachob wrote:
...
> There is balance to be found here.

I agree, but I really believe that (subject to the clarifcations
of RFC 2026 that are under way) this balance was found by 1996.
I really haven't seen a problem statement that suggests we are
significantly off balance. A manager I once knew spoke of the
"best possible distribution of unhappiness" and that is what we
seem to have already.

The hum in the meeting today seemed to confirm this theory.

  Brian

---

From: Keith Moore <[email-masked]>
Date: Mon, 18 Nov 2002 22:08:21 -0500

> lack of knowing where to look. 

From RFC 2418:

   Participation is by individual technical contributors, rather than by
   formal representatives of organizations.

From RFC 3184:

      IETF participants use their best
      engineering judgment to find the best solution for the whole
      Internet, not just the best solution for any particular network,
      technology, vendor, or user.  

That doesn't mean, of course, that individual participants are expected
to ignore the knowledge about their employers' needs, nor are they
expected to ignore their employers' customers' needs.  Indeed, input
from people who are exposed to a wide variety of needs is vital to
producing standards that work well.   However the IETF participant's
job while participating in IETF is "to find the best solution for the
whole Internet", NOT to represent the interests of his/her employer.

> In fact, quite to the opposite, I note that
> organizations sponsoring the efforts of those authors.

Certainly the latter.  To read very much into the former is to invite
misunderstanding.

> developed while employees (whether on the job or not). 

It is up to each individual participant to ensure that any contribution
that he/she makes to IETF is consistent with IETF rules.  If the 
prospective IETF participant has an agreement with his/her employer 
which precludes IETF participation, that's between him/her and his/her
employer.   IMHO, the ethical thing to do is to either re-negotiate
that agreement, quit the job, or refuse to participate in IETF.  But 
IETF rules are clear, and the failure of an organization to permit 
its employees' to participate in IETF according to IETF's rules
is not IETF's problem.

> certain IP. 

Nothing in IETF rules requires an IETF participant to disbelieve in
its employers' technical direction.   But the failure of participants
to recognize and support solutions that contribute to the greater
good is immensely costly. I've seen working groups go on for years
without convergence simply because none of the major proponents was 
willing to stop pushing his own agenda in favor of a compromise that
was beneficial to all.  (And it really doesn't matter whether this
is because the individual is pushing his own agenda or his employer's,
failure to recognize and contribute to a solution that appears to
benefit the whole Internet is what causes this problem.)

> As a practical matter, I'm not sure how you'd prove an employee
> interests 

granted, it's difficult to prove such things.  
 
> IETF. 

what would such a role be?  we are an engineering organization, and 
employers do not make good engineers.

Keith

---

From: Randy Bush <[email-masked]>
Date: Tue, 19 Nov 2002 16:11:35 -0500

>> as IETF folk don't do that.

welcome to the ietf.  you'll catch on eventually.  until then, you
might read more and type less.  this would be especially helpful to
those of us INDIVIUDUALS with similar sentiments whose work your newbie
crusade is not helping.

randy, not known for tact

---

From: Randy Bush <[email-masked]>
Date: Tue, 19 Nov 2002 16:34:28 -0500

> manifestations of certain interests through the actions of individuals. 

and don't forget the black helicopters!

randy

---

From: "Lawrence E. Rosen" <[email-masked]>
Date: Tue, 19 Nov 2002 14:22:16 -0800

> welcome to the ietf.  you'll catch on eventually.  until 
> then, you might read more and type less.  this would be 
> especially helpful to those of us INDIVIUDUALS with similar 
> sentiments whose work your newbie crusade is not helping.
> 

Hi Randy,

Thanks for your welcome to Bruce.  Can I be welcomed too?  I was there
at W3C when Chuck Powers aggressively defended his company's position --
as he's entitled to do -- and watched him berate Bruce Perens for
simultaneously working for HP and individually representing SPI.  So
forgive me, but I heard some of this ad hominem stuff already, long
before the IETF IPR discussion.  I think it would be helpful if EVERYONE
would stop such irrelevant name-calling.  I can assure you that I'm here
as an INDIVIDUAL also.

I would appreciate it if more IETF people, particularly those with
"similar sentiments," would express themselves about this important
issue instead of encouraging Bruce to sit back patiently.  Even though
most engineers would rather eat grubs than talk about patent policy, the
role of patents in industry standards is critically important to every
implementor of the standards and to every customer who will use that
software.  Face the issue now, or watch the bastards eat your lunch --
leaving you the grubs.

/Larry "the tactless lawyer" Rosen
General counsel and secretary, Open Source Initiative
Founding partner, ROSENLAW.COM LLP
707-485-1242
fax: 707-485-1243
email: [email-masked]
www.rosenlaw.com
www.opensource.org

> welcome to the ietf.  you'll catch on eventually.  until 
> then, you might read more and type less.  this would be 
> especially helpful to those of us INDIVIUDUALS with similar 
> sentiments whose work your newbie crusade is not helping.
>

---

From: Scott W Brim <[email-masked]>
Date: Tue, 19 Nov 2002 17:41:05 -0500

> issue instead of encouraging Bruce to sit back patiently.  Even though

I think he should sit back patiently, speaking up occasionally just to
keep life in the issue ... until we finish "clarification".  I assume
we'll be done by the next meeting, if not before, and certainly rather
quickly after.  At that point we can open up to "requirements", and
reach agreement on the gross shape we would like the IETF IPR policy to
have, and if we want to change what we have.  That's when Bruce should
contribute, and in the prose-creating phrase, if there is one.

swb

---

From: "Lawrence E. Rosen" <[email-masked]>
Date: Tue, 19 Nov 2002 15:05:45 -0800

Hi Scott,

Bruce, I think, will do as he wants.  As for me, I intend to speak up on
this issue.  Please explain what this "clarification" phase is all about
that you intend to "finish" in time for a "next meeting."  I'm new to
the process.  

I think the most useful thing that everyone on this list can do is to
read and understand the W3C policy.  It addresses all of the important
features of a formal patent policy for an industry standards group, some
of which are less than the open source community wanted but were
effective compromises nonetheless.  I'll be glad to answer any questions
about our perspective of what the W3C patent policy means and
accomplishes.

/Larry Rosen

> From: [email-masked] [mailto:[email-masked]] On 
> Behalf Of Scott W Brim
> Sent: Tuesday, November 19, 2002 2:41 PM
> To: [email-masked]
> I think he should sit back patiently, speaking up 
> occasionally just to keep life in the issue ... until we 
> finish "clarification".  I assume we'll be done by the next 
> meeting, if not before, and certainly rather quickly after.  
> At that point we can open up to "requirements", and reach 
> agreement on the gross shape we would like the IETF IPR 
> policy to have, and if we want to change what we have.  
> That's when Bruce should contribute, and in the 
> prose-creating phrase, if there is one.
> 
> swb

---

From: Pekka Savola <[email-masked]>
Date: Wed, 20 Nov 2002 01:16:49 +0200 (EET)

On Tue, 19 Nov 2002, Lawrence E. Rosen wrote:
[...]
> software.  Face the issue now, or watch the bastards eat your lunch --

FWIW, I believe the policy wrt. IPR must not at least be relaxed.

We're seeing more IPR.  It might be interesting to analyze the reasons for 
this.

We need to make it clear that claiming IPR is _not_ the way to make money 
off IETF specifications; claiming IPR on something a w.g. is working on, 
hoping they will pick that choice because they may not have any real 
choice, hoping to get a standard which de facto requires licensing from 
the company -- unacceptable.

If we allow IPR be used in IETF standards, except perhaps as optimizing
MAY's when there's a good reason for it, that's a sure sign for companies
to start claiming even more IPR in the hopes we standardize their
technologies.

-- 
Pekka Savola                 "Tell me of difficulties surmounted,
Netcore Oy                   not those you stumble over and fall"
Systems. Networks. Security.  -- Robert Jordan: A Crown of Swords

---

From: Randy Bush <[email-masked]>
Date: Tue, 19 Nov 2002 19:14:58 -0500

> issue

we have been, for a long time

randy

---

From: Brian E Carpenter <[email-masked]>
Date: Wed, 20 Nov 2002 16:31:55 +0100

Pekka, I don't understand what you're saying.

Our existing policy (even before clarification) is
pretty clear on this point: WGs, when there is a choice,
are entitled to prefer unencumbered technology, but
allowed to specify RAND-encumbered technology when it
is technically preferable.

Since the IETF cannot abolish the patent system or
prevent people and companies from using it, I don't
see what change you are suggesting.

   Brian

---

From: Pekka Savola <[email-masked]>
Date: Wed, 20 Nov 2002 20:59:46 +0200 (EET)

> is technically preferable.

.. depending on how much more preferable that is.  That is something we 
can affect.  
 
> see what change you are suggesting.

We can affect which technologies we're using, and what kind of behaviour 
we will be expecting of people and companies if they want to acts 
productively towards IETF standardization process.