Subject: Re: question about IETF policy on RF patent policies

From: "Steven M. Bellovin" <[email-masked]>
Date: Thu, 12 Jun 2003 18:02:45 -0400

In message <04c501c330f8$71680150$020aff0a@tsg1>, "todd glassey" writes:
>Lars - this is a reply from an Attorney. In fact OpenSource's Attorney...
>So let me ask you and this WG this, who designed this IP policy, attorney's
>or technologists? - I think the answer is pretty obvious though. Because
>what I have found too often as a manager of technologists, is that we come
>up with ideas and ask the legal department the following question "Does my
>idea address these issues" rather than the really key question which is
>"What is the best way of meeting these needs".
>
>What the IETF in many instances has failed to take note of in my opinion, is
>that in the former case what is happening is that the Attorney is forced to
>validate that the client is competent to practice law, and in the latter
>case, the attorney is specifying the framework from their legal experience.
>
>So which is it? Has anyone asked Jorge what he would do as part of a Release
>and Declaration process for IP? or is this more of the old "we will just ram
>it down their throats and if the Attorney's don't bless it we will just fire
>them" kind of attitude that seems so prevalent here?

Todd, if all attorneys agreed there would never be any lawsuits.  I 
think we have running code to the contrary.

Jorge has been closely involved in drafting these I-Ds.  When he's told 
us that something we technologists proposed wasn't right, we changed 
it.  When he gave us language that from a legal perspective was better, 
we used it.  From where I sit, there have been exactly zero hostile, 
tense, or confrontational discussions with him.  We know what we want 
to accomplish; he knows how best how to do it.  In fact, interactions 
with Jorge are much more collegial than the average working group, 
where we all have (we assume) equally-valid technical perspectives.  
(Just look at the Site Local discussions in ipv6 to see what I mean!)  
When discussing ipr-wg issues, we all accept that Jorge knows the law 
and we know the IETF culture and practices, and we each respect the 
others' expertise.

But we're off-topic here, and your digressions are starting to generate 
a lot of traffic.  That's not good.  Putting on my chair hat, I would 
like this working group to finish its tasks.  At this point, we are 
*not* discussing changes to the IETF's IPR policy -- the window for 
that closed on April 9, when by a fairly strong consensus the working 
group decided not to.  I realize that you disagree, as did many other 
people.  But IETF policy does not require unanmity, it simply requires 
strong consensus.

This working group is also not discussing fundamental changes to the 
structure of the IETF.  Such proposal are perfectly in order, but not 
here.  If you want to pursue your ideas, I think you know what to do:  
write an I-D, submit it, and send pointers to the appropriate mailing 
lists.  (At a guess, some candidates would be poised and maybe 
problem-statement; as a matter of course, I-D announcements go to 
ietf-annouce.)  See who else is interested.  If there's enough interest 
to warrant forming a WG, we can discuss it at that point.  But the IPR 
tail isn't big enough to wag the IETF dog.

The primary purpose of this mailing list is to discuss the three drafts 
specifically called out in the charter:  submission rights, technology 
rights, and guidelines.  Rob and I hope to reissue a WG last call on 
those very soon, since the issues revealed by the previous last call 
have been resolved.  We're also discussing the template and Pekka's 
draft, since those are related to implemenation of the *current* policy.
Anything else is out of scope.

So -- in the interests of making progress in this WG, I am politely 
asking everyone to refrain from off-topic postings, even in response to 
other off-topic mail.  We don't want to take stronger measures to 
enforce the request.

		--Steve Bellovin, http://www.research.att.com/~smb (me)
		http://www.wilyhacker.com (2nd edition of "Firewalls" book)

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From: "todd glassey" <[email-masked]>
Date: Fri, 13 Jun 2003 07:24:23 -0700

Steve, in closing this Off-Topic thread out in response to you...

----- Original Message ----- 
From: "Steven M. Bellovin" <[email-masked]>
To: "todd glassey" <[email-masked]>
Cc: <[email-masked]>; "'Lars-Erik Jonsson (EAB)'"
<[email-masked]>; <[email-masked]>
Sent: Thursday, June 12, 2003 3:02 PM
Subject: Re: question about IETF policy on RF patent policies

> think we have running code to the contrary.

Which means that more than one opinion should have been sought out. There
are multiple attorney's here on this and in other IETF lists... which
implies to me that all other legal opinions have been ignored then.
Certainly Larry and Robert have made commentary here as well. But the IETF
has chosen not to listen to them I guess, so what I percieve is that what
you are saying is that

    "Todd we asked Jorge' and he said it was OK and so we absolved ourselves
of our need to have our attorney approve" - but what was it you asked
Jorge... Was it something like: "Jorge what would the best way to do this be
and what components should our release form and process have?" or was it
more like "Hey Jorge, this is what we are proposing, how does this work?"
becuase they are very DIFFERENT legal questions. One is about the Counsel's
best method and the other is whether the submitted design is a problem or
not.

Also realize that Jorge is also furthwer compromised by threat that the IETF
will ignore their legal advice in favor of replacing human law with
mechanical technology and of course there isno way for the "Rest of Us" to
know that this happened or to be able to interject commentary in that
process directly to Jorje so I am further somewhat surprised that you would
raise such an easily debunked theorum on why you ad adequate legal advice
here. And all of this is clearly something that this forum and a number of
others here "just dont get, that it aint gonna happen" IMHO. 3000 years of
law and human cultural development is not going to change overnight just
becuase the Internet threatens to create legal anarchy in the world.

> it.

See the above retort. It totally debunks this commentary here.

>  When he gave us language that from a legal perspective was better,
> tense, or confrontational discussions with him.

of course not. Why would he bite the hand that feeds him. Answer this
question, who designed the process - you folks or him... That is did Jorge
come to you and say "I am concerned with the IPR process and what is
disclosed therein" or was it more of someone somewhere pinged management and
they agreed this was important so this WG was formed and Jorge sits
alongside answering questions when they are asked?

So then where is the list of questions that Jorge has been asked to date?
are are these part of the vetting records of what happens here in this
Forum? becuase if not, yet again there is aonther real problem here I think.

> We know what we want
> to accomplish;

Which is?

> he knows how best how to do it.

Then why is there any discussion herein at all. If Jorge is driving this
boat where is his leadership???

> In fact, interactions

Duh - of course they are. He is the lawyer...

> and we know the IETF culture and practices, and we each respect the

yes and its the Culture and Practice of the IEF that is the problem here...
something that you and a number of others are personally responsible for.
The IETF's culture is to be unacciountable for anything, and the practice is
to allow WG chairs to pretty much call anything they want and initiaitve
within the constructs of their WG which if properly funded is a no-brainer.
What did I miss here?

> structure of the IETF.

Nor am I here. What I am discussing is a IPR policy that mandates that a
formal release be signed at the time of a documents submission declaring
that the submitter has legal authority to make these declarations becuase as
it sits now the IETF and its processes have no way of protecting themselves
from an attack based on its intentionally not knowing what and who is moving
what IP through it.

This is not an option in my mind and its not something that a WG should be
voting on. Its something that the IETF should just swallow hard and realize
that its fantasy-land release process is just that, ineffective in a legal
sense since it cannot document squat about the person filing the draft or
otherwise.

The problem with the IPR model is that it is run atop the email based
submission service, so the IETF is essentially intentionally violating the
ABA's reccomendations about legal submissions and every court in the US
today - no let me rephrase it - in the world today. No court that I know of
will allow service through EMAIL. Which is what an IPR Submittal is, a
formal legal release served through Email...

And that is stupid and arrogant to think that becuase we are the IETF we can
flaunt our ways in the face of  the methods an general benchmarks set by
'society at large' - which makes this in my opinion just another IETF SNAFU,
and its just brilliant folks!...

> Such proposal are perfectly in order, but not
> lists.

No steve - I-D's are for developing Technical Standards and are not an
appropriate method of dealing with Governance Issues involving US and Global
Law. This is not about vetting a new political process. That is the issue
here in the bigger picture. This is about that you and this WG wants people
to submit what is essentially a binding legal agreement through Email to
indemnify what the IETF does and to help reinforce the value to the players
of the IETF's Processes and while these are critical goals, this particular
metthod is a broken idea

> (At a guess, some candidates would be poised and maybe

yes it is. The IPR WG is defining

    1)    The declarative process for submitting IP Release to the IETF
    2)    The declarative process for submitting "controlled space" notices
to the IETF
    3)    and both  #1 and #2 are meant to constitute a legally binding
process for acknowledging a release, except like the submissions process
there is no possible legal method to insure that the sender is who they
claim to be or that they have the legal rights to submit this declaration,
or the responsibility to do so.

> rights, and guidelines.

Duh - so what is not clear about my response above then?

> Rob and I hope to reissue a WG last call on