Subject: RE: Proposal for slight edit to section 6.2.1 of draft-ietf-ipr-t echn ology-rights-09.txt

From: "Ling, Hung C (Hung)" <[email-masked]>
Date: Mon, 16 Jun 2003 10:49:00 -0400

I agree with Robert Barr's view:  "Make rules they can comply with
and expect them to comply. Encourage partcipants to comply earlier, but
don't require it."  As explained by Chuck Powers, lawyers (at least the corporate ones)are not the fastest to deal with getting "legal" IPR disclosures out, especially if the content of a potential document is still undergoing constant changes.  A written submission (such as an I-D) at least freezes the content in a moment of time.

Some proposed language to capture this:
 
"The IPR disclosure required pursant to section 6.1.1 
must be made as soon as reasonably possible after the Contribution 
is incorporated into a submission to be published as an Internet Draft 
or RFC, unless the required disclosure is already on file.  Participants who realize that a Contribution will be incorporated into a submission to be published as an Internet Draft or RFC are also encouraged to do so as soon as reasonably possible.  For example,.........."

I think this is in line with John Klensin's suggestion.

Thanks,  Hung Ling

-----Original Message-----
From: Robert Barr [mailto:[email-masked]]
Sent: Friday, June 13, 2003 11:32 PM

Believe it or not, the valid interests of the IETf in learning about IPR
early are not the only interest to be considered here. Consider the
difficulties faced by the well-meaning corporate IPR department, who are a)
doing their best to disclose IPR pursuant to the rules and b) the only
player who could suffer consequences for failure to disclose .  Any rule
requiring disclosure before the document is actually submitted wil be very
difficult to comply with and will  encourage corporations to 'hide behind'
the personal knowledge of the participant. Make rules they can comply with
and expect them to comply. Encourage partcipants to comply earlier, but
don't require it.

_______________________________________________
Ipr-wg mailing list
[email-masked]
https://www1.ietf.org/mailman/listinfo/ipr-wg

---

From: John C Klensin <[email-masked]>
Date: Mon, 16 Jun 2003 21:49:26 -0400

--On Monday, 16 June, 2003 18:20 -0700 Robert Barr 
<[email-masked]> wrote:

> snip: I would hope a company or organization that actually
> wanted to  participate in the IETF process could made a
> disclosure of that  form with only a moderate investment of
> resources,
>
> But the company really isnt participating at this stage.The
> individual is on his/her own, in reality as well as theory,
> until the document is available on ietf-announce and the
> company can see it. I would hope the individual will make an
> early minimal disclosure, but the company cannot control that
> unless it controls the way its employees participate.

Let me restate my comment in your terms/ context.

I would hope a company or organization would have policies that 
would not block an individual disclosure of that form at that 
stage and that we could expect the individual to do so.

    john

---

From: Keith Moore <[email-masked]>
Date: Mon, 16 Jun 2003 22:50:11 -0400

> or RFC, unless the required disclosure is already on file.  Participants who
> realize that a Contribution will be incorporated into a submission to be
> published as an Internet Draft or RFC are also encouraged to do so as soon
> as reasonably possible.  For example,.........."

I really don't think this is sufficient.  These days even writing an initial
I-D can require a substantial amount of protocol design effort and group
discussion, because there's a tendency for groups to shoot down ideas that
aren't well-researched.

Also, are you going to count just WG I-Ds or all I-Ds?  If the former, that's
raising the barrier way too high.  If the latter, that's a lot of I-Ds to 
search...

Basically I think publication of an I-D is not a very good trigger.

---

From: "Robert Barr " <[email-masked]>
Date: Mon, 16 Jun 2003 19:14:34 -0700

> From: John C Klensin [mailto:[email-masked]] 
> Sent: Monday, June 16, 2003 6:49 PM
> To: [email-masked]; 'Ling, Hung C \(Hung\)'; 'Scott 
> Bradner'; [email-masked]
> Cc: [email-masked]
> Subject: RE: Proposal for slight edit to section 6.2.1 of 
> draft-ietf-ipr-t echn ology-rights-09.txt
> 
> 
> 
> 
much better. 
robert

---

From: "Robert Barr " <[email-masked]>
Date: Mon, 16 Jun 2003 10:28:22 -0700

The IPR owner's obligation should not be triggerred  before the draft is
actually submitted. The IPR owner is usuallly  a corporation, and as such
not a member of IETF. The only way the IPR owner can assure compliance is by
observing and reviewing drafts when they show up on standards-announce. So I
don't agree with the language "as soon as reasonably possible after the
Contribution  is incorporated into a submission to be published " at, least
as it applies to the IPR owner, it should be as soon as reasonably possible
the Contribution 
is incorporated into a  published Internet Draft"
The IPR owner should be encouraged to submit sooner, and the CONTRIBUTOR
could even be required to submit sooner (as soon as reasonably possible
after the Contribution  is incorporated into a submission to be published )
but it must be made clear that the IPR owner is not in breach of any
obligation if they do not submit sooner.
Robert

> From: Ling, Hung C (Hung) [mailto:[email-masked]] 
> Sent: Monday, June 16, 2003 7:49 AM
> To: [email-masked]; 'Scott Bradner'; [email-masked]
> Cc: [email-masked]
> don't require it."  As explained by Chuck Powers, lawyers (at 
> least the corporate ones)are not the fastest to deal with 
> getting "legal" IPR disclosures out, especially if the 
> content of a potential document is still undergoing constant 
> changes.  A written submission (such as an I-D) at least 
> freezes the content in a moment of time.
> 
> or RFC, unless the required disclosure is already on file.  
> Participants who realize that a Contribution will be 
> incorporated into a submission to be published as an Internet 
> Draft or RFC are also encouraged to do so as soon as 
> reasonably possible.  For example,.........."
>

---

From: John C Klensin <[email-masked]>
Date: Mon, 16 Jun 2003 19:52:24 -0400

--On Monday, 16 June, 2003 10:49 -0400 "Ling, Hung C (Hung)" 
<[email-masked]> wrote:

> I agree with Robert Barr's view:  "Make rules they can comply
> with and expect them to comply. Encourage partcipants to
> comply earlier, but don't require it."  As explained by Chuck
> Powers, lawyers (at least the corporate ones)are not the
> fastest to deal with getting "legal" IPR disclosures out,
> especially if the content of a potential document is still
> undergoing constant changes.  A written submission (such as an
> I-D) at least freezes the content in a moment of time.
>
> must be made as soon as reasonably possible after the
> Contribution  is incorporated into a submission to be
> published as an Internet Draft  or RFC, unless the required
> disclosure is already on file.  Participants who realize that
> a Contribution will be incorporated into a submission to be
> published as an Internet Draft or RFC are also encouraged to
> do so as soon as reasonably possible.  For example,.........."
>

I think this is, indeed, "in line" with my suggestion.   But I 
would encourage people to also think about Harald's observation 
about different types of disclosure.  E.g., I'd like to see a 
requirement for disclosure of some sort, even if it is only "we 
may have some IPR here, a more definite statement is coming" not 
later than the time an I-D is posted (and ideally much earlier). 
I would hope a company or organization that actually wanted to 
participate in the IETF process could made a disclosure of that 
form with only a moderate investment of resources, noting that 
many Consortia and SDOs require a greater level of commitment as 
a prerequisite for coming to the table.  The existence of such a 
statement could be helpful to a WG in determining whether to go 
ahead with some piece of work or to wait for (or actively 
encourage) a more complete disclosure.  And that more complete 
form would be required, as you suggest, "as soon as reasonable 
possible" after such publication unless the WG definitively 
drops the idea.

As has been discussed previously on this list, we need to be 
very careful that timing of IPR disclosures does not become a 
way to mount denial of service attacks on the ability of the 
IETF to make progress.   We ultimately want to get as much 
disclosure as practical, as soon as practical.  To that end, 
forcing relatively early disclosure, even if minimal, that 
permits a WG to form impressions of an organization's good faith 
effort to get a complete disclosure out is probably desirable: 
it makes documents and ideas available earlier, but mimimizes 
the likelihood either "submarine" behavior or of things getting 
blocked through spurious claims.  The system could still be 
gamed, but we need to keep on the quest for a balance.

     john

---

From: "Robert Barr " <[email-masked]>
Date: Mon, 16 Jun 2003 18:20:12 -0700

> Sent: Monday, June 16, 2003 4:52 PM
> To: Ling, Hung C (Hung); [email-masked]; 'Scott Bradner'; 
> [email-masked]
> Cc: [email-masked]
snip: I would hope a company or organization that actually wanted to 
participate in the IETF process could made a disclosure of that 
form with only a moderate investment of resources, 

But the company really isnt participating at this stage.The individual is on
his/her own, in reality as well as theory, until the document is available
on ietf-announce and the company can see it. I would hope the individual
will make an early minimal disclosure, but the company cannot control that
unless it controls the way its employees participate.

---

From: Scott Bradner <[email-masked]>
Date: Tue, 17 Jun 2003 00:10:47 -0400 (EDT)

how about

6.2.1 Timing of disclosure under Section 6.1.1
   The IPR disclosure required pursuant to section 6.1.1 must be made as
   soon as reasonably possible after the Contribution is incorporated
   into a submission to be published as an Internet Draft unless the
   required disclosure is already on file.  For example, if the
   Contribution is an update to a Contribution for which an IPR
   disclosure has already been made and the applicability of the
   disclosure is not changed by the new Contribution, then no new
   disclosure is required.  But if the Contribution is a new one, or is
   one that changes an existing Contribution such that the revised
   Contribution is no longer Covered by the disclosed IPR or would be
   Covered by new or different IPR, then a disclosure must be made.

   Participants who realize that a Contribution will be incorporated
   into a submission to be published as an Internet Draft are also
   encouraged to do so as soon as reasonably possible.

   If a Contributor learns of IPR that meets the conditions of Section
   6.6, for example a new patent application or the discovery of a
   relevant patent in a patent portfolio, after the submission of a
   Contribution, a disclosure must be made by the Contributor or his
   employer or sponsor or other organization holding rights in the IPR
   as soon as reasonably possible after the IPR becomes reasonably and  
   personally known to the Contributor.

6.2.2 Timing of disclosure under Section 6.1.2
   The IPR disclosure required pursuant to section 6.1.2 must be made as
   soon as reasonably possible after the Contribution is published as an
   Internet Draft or RFC, unless the required disclosure is already on
   file. Participants who realize that a Contribution will be
   incorporated into a submission to be published as an Internet Draft
   are also encouraged to do so as soon as reasonably possible.      
_______________________________________________
Ipr-wg mailing list
[email-masked]
https://www1.ietf.org/mailman/listinfo/ipr-wg

---

From: "Robert Barr " <[email-masked]>
Date: Mon, 16 Jun 2003 21:49:22 -0700

> From: Scott Bradner [mailto:[email-masked]] 
> Sent: Monday, June 16, 2003 9:11 PM
> To: [email-masked]
> Cc: [email-masked]

This 6.2.1  (as
>    into a submission to be published as an Internet Draft) is Ok for the
Contributor (, and indeed 6.1.1 refers to a contributor. But what about the
corporate IPR owner?? Do we expect them to make IPR disclosures? If not,
let's say so. (Otherwise they will be likely  held accountable for the
contributor's failure to disclose,  if  the contributor is an employee of
the IPR owner) If yes, let's say that they(the IPR owner-corporation)  are
obligated to make an IPR disclosure " as reasonably possible after the
Contribution is 
> published as an
>    Internet Draft or RFC"

I see you used this language in 6.2.2, which refers to 6.1.2, which is An
IETF participant's IPR in Contributions by others. That's fine for that
case, but a corporation is not an IETF participant.

Generally, and redundantly, my concern is that the document pretends that
the IPR owner doesn't have any obligation to disclose, but it's employees
do,  if they participate.  But, since the law will likely hold the employer
responsible for the acts and omissions of its employees, and because the
IETF needs the information (esp the licensing commitment) that only the IPR
owner-corporation-employer can provide, I would like to see rules that the
IPR owner can comply with without putting undue restraints on its employees
(like 'you cant contribute to IETF without checking with the IPR group and
getting their approval") . We have to deal with the fact that the individual
participants work for companies and the companies own the IPR, but the
companies can only monitor the contributions when they are published..

---

From: John C Klensin <[email-masked]>
Date: Tue, 17 Jun 2003 02:37:55 -0400

Scott,

For whatever my opinion is worth in this, I would prefer to 
insist that we have, and require, _some_ disclosure --if 
necessary and appropriate, by Contributing individuals at the 
"reasonably and personally known level" _before_ a document is 
posted/published.  That is a clear demarcation point at which 
compliance, or the lack thereof, is fairly clear.  "...as soon 
as reasonably possible after..." is the right concept, IMO, for 
a relatively full disclosure with licensing statements, etc. 
But, if the author of a document knows that something in that 
document is encumbered, it is reasonable and appropriate for us 
to insist on getting a disclosure at, at least, a "I think my 
organization may have an IPR issue with some of the suggestions 
this document makes".

And, going back to the themes of the Note Well, I think that, 
given contributor knowledge, that level of disclosure is 
desirable at the time of the first mailing list posting or talk 
in front of a WG.

Coming back to my comments about balancing objectives and 
reality, I think we need to be reasonable and realistic here. 
But I don't think that, to be reasonable, we need to set 
ourselves up for a situation in which someone pushes an 
encumbrance-laden agenda while delaying publishing an identified 
type of document so as to avoid disclosing,  and then abuses "as 
soon as reasonably possible" to stretch things out even a bit 
longer.

      john

--On Tuesday, 17 June, 2003 00:10 -0400 Scott Bradner 
<[email-masked]> wrote:

>    The IPR disclosure required pursuant to section 6.1.1 must
> be made as    soon as reasonably possible after the
> published as an Internet Draft unless the    required
>...

---

From: Harald Tveit Alvestrand <[email-masked]>
Date: Tue, 17 Jun 2003 09:41:22 +0200

--On mandag, juni 16, 2003 21:49:22 -0700 Robert Barr  <[email-masked]> 
wrote:

> do,  if they participate.  But, since the law will likely hold the
> employer responsible for the acts and omissions of its employees, and
> because the IETF needs the information (esp the licensing commitment)
> that only the IPR owner-corporation-employer can provide, I would like to
> see rules that the IPR owner can comply with without putting undue
> restraints on its employees (like 'you cant contribute to IETF without
> checking with the IPR group and getting their approval") . We have to
> deal with the fact that the individual participants work for companies
> and the companies own the IPR, but the companies can only monitor the
> contributions when they are published..

I've been worried about the relationship between the role of the 
participant and the role of the IPR owner too. It's eminently unclear in 
section 6 of version -09. The only place I can find offhand where the IPR 
owner actually is mentioned is in section 6.2.1, "Timing of disclosures 
under section 6.1.1", which seems a rather narrow scope:

   The Contributor or his or her employer or sponsor (if any) or other
   organization holding the rights to IPR, must submit an IPR
   disclosure....

The rest of the section just refers to the contributor.

Perhaps we should add a paragraph to the introduction of section 6:

  This document refers to the IETF participant making disclosures,
  consistent with the general IETF theory that participants in the IETF
  act as individuals.

  A participant's obligation to make a disclosure is also considered
  satisfied if the IPR owner or the participant's employer or sponsor
  makes an appropriate disclosure concerning the IPR pertaining to the
  participant's contribution.

Placing this at the top of section 6 would make it clear that this is a 
general principle, covering all types of disclosures.

This seems to me to be what currently happens, and what makes sense - two 
usually strong arguments for documenting it that way...

               Harald

---

From: Pekka Savola <[email-masked]>
Date: Tue, 17 Jun 2003 12:02:29 +0300 (EEST)

> desirable at the time of the first mailing list posting or talk 

FWIW, totally agree on these points.

-- 
Pekka Savola                 "You each name yourselves king, yet the
Netcore Oy                    kingdom bleeds."
Systems. Networks. Security. -- George R.R. Martin: A Clash of Kings

---

From: Keith Moore <[email-masked]>
Date: Tue, 17 Jun 2003 08:54:40 -0400

> actually submitted.

perhaps not, but the IETF participant's obligation must occur sooner than
that, even if the participant is an employee of an IPR owner.  

maybe we need different levels of formality for disclosure?
_______________________________________________
Ipr-wg mailing list
[email-masked]
https://www1.ietf.org/mailman/listinfo/ipr-wg

---

From: Keith Moore <[email-masked]>
Date: Tue, 17 Jun 2003 09:10:21 -0400

>   participant's contribution.

mumble.  what I don't want to see is a rule that says "if my employer makes an
incomplete or inaccurate disclosure, I've met my obligation as a participant"

Keith

---

From: Keith Moore <[email-masked]>
Date: Tue, 17 Jun 2003 08:58:20 -0400

waiting for an I-D is much too late.

---

From: Keith Moore <[email-masked]>
Date: Tue, 17 Jun 2003 09:07:14 -0400

very much in agreement.  

I think a participant has an obligation to  disclose (perhaps informally,
perhaps with minimal detail, perhaps with caveats) within a short time of
becoming aware that there might be an IPR issue with something that is
considered for an IETF document protocol specification (and not just a
standard).   

I also think that a participant who is an employee of a company whose IPR is
at issue has an obligation to initiate a request for formal disclosure within
his company within a short time of becoming aware that such issues might
exist.

Now if the actual deadline for the employer's disclosure is tied to 
publication of an Internet-Draft, that might be just fine, provided the other
triggers are in place.

I think we're on shaky ground requiring anything from employers' participants,
but I understand that employers will want to protect their IPR from Dell-style
attacks, so giving them clear rules is probably a good thing.  But the primary
burden for IPR disclosure must be on IETF participants, and participants must
have obligations independent from those of their employers.

Keith

---

From: "todd glassey" <[email-masked]>
Date: Tue, 17 Jun 2003 08:33:32 -0700

Hung, I am not a lawyer and do not practice law, but my concerns are as
follows:

So what happens in an instance where a protocol is submitted and any number
of people's sponsor's pick up an interest and its vetted. There is still no
IP disclosure on file yet, and there are starting to be instances of
products occurring in the field now too. All of a sudden the original
discloser asserts privilege of invention and files for protection under US
Patent Law, where you can wait up to one year from the date of initial
disclosure to file for exclusionary protection.

I wonder what would happen if the DoJ did a formal audit and built a
"proofing model" for this? It would be pretty easy. Just pull the archive,
sort the emails, search for the patent filing dates, and viola...  which
from my perspective it is exactly what the IPR process is put in place to
stop, and stop dead in its tracks.

My concerns for the current processes are that abusing this "vetting without
IPR disclosure" when taken with the one-year filing option could easily be
used to do commercial damage ("tortuous interference with an ability to
conduct a commercial business" for instance), and if so then what recourse
would or do the other participants have? Its not pretty either way, and
rather than exposing the IETF to this, it seems like it would be better to
have some simple boilerplate processes that are not essentially all passive
in nature.

My reasoning is that idea was to get the IETF out of the middle, and
essentially to make its "processes" capable of being attacked in Court and
withstanding that attack.  And I do acknowledge that the IETF needs to
maintain its open structure but the issues of global IP protection demand
some concessions to that "lifestyle" and the acceptance of more rigid and
structured disclosures. Otherwise I am concerned that the IETF may be stuck
in the middle no matter what any amount of this groups efforts will do.

----- Original Message ----- 
From: "Ling, Hung C (Hung)" <[email-masked]>
To: <[email-masked]>; "'Scott Bradner'" <[email-masked]>;
<[email-masked]>
Cc: <[email-masked]>
Sent: Monday, June 16, 2003 7:49 AM
Subject: RE: Proposal for slight edit to section 6.2.1 of draft-ietf-ipr-t
echn ology-rights-09.txt

> don't require it."  As explained by Chuck Powers, lawyers (at least the
corporate ones)are not the fastest to deal with getting "legal" IPR
disclosures out, especially if the content of a potential document is still
undergoing constant changes.  A written submission (such as an I-D) at least
freezes the content in a moment of time.
> or RFC, unless the required disclosure is already on file.  Participants
who realize that a Contribution will be incorporated into a submission to be
published as an Internet Draft or RFC are also encouraged to do so as soon
as reasonably possible.  For example,.........."

---

From: "todd glassey" <[email-masked]>
Date: Tue, 17 Jun 2003 10:47:09 -0700

Robert - How so - see below -  Seems to me that this totally fails any sniff
test as to the Work For Hire definitions in the Copyright Act of 1976 which
provides that "works for hire" include works prepared by employees "within
the scope of their employment", and that the employer:

1.  is considered the author of such works, and
2   is the owner of the associated copyright, unless both the employer and
the employee have signed a written instrument agreeing otherwise,

and in the instance of #2 it would have to have been disclosed to the IETF
one would think

See below -

----- Original Message ----- 

SNIP

> unless it controls the way its employees participate.

So let me ask this. My understanding is that if someone is subsidized in
their participation that under  the 1976 "Work for Hire" doctrine of US
copyright law, that any IP's developed or created by the effort of the
"sponsored party" belong to the "sponsor" or at the very least the Sponsor
has a formal claim in them, especially true if they are being fabricated as
a result of use of the company's equipment and time and they are orthogonal
or inline with the efforts the company does officially in furtherance of its
formal IP initiatives.

Would you agree to this?

Todd Glassey

---

From: "todd glassey" <[email-masked]>
Date: Tue, 17 Jun 2003 11:05:24 -0700

----- Original Message ----- 
From: "Robert Barr " <[email-masked]>
To: "'Ling, Hung C (Hung)'" <[email-masked]>; "'Scott Bradner'"
<[email-masked]>; <[email-masked]>
Cc: <[email-masked]>
Sent: Monday, June 16, 2003 10:28 AM
Subject: RE: Proposal for slight edit to section 6.2.1 of draft-ietf-ipr-t
echn ology-rights-09.txt

> not a member of IETF.

So then anyone submitting somehting is actually doing so as an agent of the
sponser or IP owner then... right?

> The only way the IPR owner can assure compliance is by
> observing and reviewing drafts when they show up on standards-announce.

Which implies that there is a larger cost to participate in this IETF than
people have acknowledged previously and that this is based in its open and
formless environment.

>  So I

Robert - Is this you or Cisco talking here?

> obligation if they do not submit sooner.

Then how would damages in a "submarining suit" be assessed? seems to me that
there is one unspoken thing that is being kicked to death here and that
there is a signifcant danager to doing ANYTHING with any IETF initiative
without a formal and probably costly IP search by anone that intend to rely
on the protocol as a basis of their business or commercial process. And also
that this may be time consuming, and is certainly a costly and added expense
if its done properly.

So, Is that what the IETF's intent is, that being to make adopting its
standards very costly?

---

From: "Robert Barr " <[email-masked]>
Date: Tue, 17 Jun 2003 12:21:20 -0700

>Keith:  I think I agree, except I must ask again: what
punishment/sanction/penalty is there for the partcipant's failure to
disclose or to initiate a request to the employer?   I don't  mean to
minimize the importance of ethical behavior, but what if a partciapant "just
forgot"?  IETF wont have the info it expected and the IPR owner  may suffer
consequences.

---

From: "Bob Wyman" <[email-masked]>
Date: Wed, 18 Jun 2003 11:23:46 -0400

Scott Bradner wrote:
> require, _some_ disclosure --... _before_ a document is 
> posted/published.
	I'm having trouble making sense of this... Do you mean that if I
am going to post/publish a document tomorrow that I need to disclose
today?
	i.e. "Hi. I've got patent number xxxx. Tomorrow, you'll
understand why that matters..."

		bob wyman

-----Original Message-----
From: [email-masked] [mailto:[email-masked]] On Behalf Of
John C Klensin
Sent: Tuesday, June 17, 2003 2:38 AM
To: Scott Bradner
Cc: [email-masked]; [email-masked]
Subject: RE: Proposal for slight edit to section 6.2.1 of
draft-ietf-ipr-t echn ology-rights-09.txt

Scott,

      john

---

From: Keith Moore <[email-masked]>
Date: Wed, 18 Jun 2003 12:32:25 -0400

> forgot"?  IETF wont have the info it expected and the IPR owner  may suffer

at present, we don't have any punishment/sanction/penalty defined that I'm 
aware of, other than social effects - e.g. a participant who is caught not
disclosing IPR may find his proposals trusted less in the future.

perhaps we should invent some punishment/sanction/penalty for violation
of our rules, but I think the rules are useful even without such measures.

---

From: Keith Moore <[email-masked]>
Date: Wed, 18 Jun 2003 13:28:10 -0400

On Wed, 18 Jun 2003 11:23:46 -0400

> am going to post/publish a document tomorrow that I need to disclose

if you are proposing to use some technology that you know is encumbered,
you need to disclose the encumberance at the time you make your proposal.

if someone else proposes to use technology that you know is encumbered,
you need to disclose that ASAP after that proposal is made.

---

From: Keith Moore <[email-masked]>
Date: Wed, 18 Jun 2003 12:35:44 -0400

> If there is no 'punishment' (other than ostracism and criticism) for the
> participant's failure to disclose or initiate a request, then there is no
> real difference between 'encouraging' early action and 'requiring' early
> action by the participant.

I strongly disagree.  Our rules should state clearly what behavior is expected
of participants.  An action that is merely encouraged is optional, but
disclosure of IPR is not optional.

---

From: "todd glassey" <[email-masked]>
Date: Thu, 19 Jun 2003 04:57:37 -0700

----- Original Message ----- 
From: "Keith Moore" <[email-masked]>
To: <[email-masked]>
Cc: <[email-masked]>; <[email-masked]>; <[email-masked]>;
<[email-masked]>
Sent: Wednesday, June 18, 2003 9:32 AM
Subject: Re: Proposal for slight edit to section 6.2.1 of draft-ietf-ipr-t
echn ology-rights-09.txt

> disclosing IPR may find his proposals trusted less in the future.

Which specificially testifies to that this is not a true standards venue,
but rather a "I'll pass yours if you do mine" kinda thing...

> of our rules, but I think the rules are useful even without such measures.

The problem is that if you dont then the arbitrary sanctions you have
specified above look like restraint of trade development. Since the standard
is critical for many products business/commercial acceptance or at least
their sponsors believe that.

---

From: "todd glassey" <[email-masked]>
Date: Mon, 23 Jun 2003 14:14:38 -0700

----- Original Message ----- 
From: "John C Klensin" <[email-masked]>
To: "Ling, Hung C (Hung)" <[email-masked]>; <[email-masked]>; "'Scott
Bradner'" <[email-masked]>; <[email-masked]>
Cc: <[email-masked]>
Sent: Monday, June 16, 2003 4:52 PM
Subject: RE: Proposal for slight edit to section 6.2.1 of draft-ietf-ipr-t
echn ology-rights-09.txt

> > I-D) at least freezes the content in a moment of time.

But unless that disclosure is authorized this unauthorized disclosure causes
the IP owner irreperable damages.

---

From: "todd glassey" <[email-masked]>
Date: Mon, 23 Jun 2003 14:22:44 -0700

What you are running into gentlemen is that argument that makes one ask if
the ideas behind the IETF are even possible in a world with as many IP
claims in it as there are.

So now there is a fundamental question to ask here, and that is whether
**any** non-mandatory IP release process is strong enough to protect the
IETF and the benefactors of that standard's vetting efforts, from litigation
over IP issues and any failings in the IETF process to address this.

Todd

----- Original Message ----- 
From: "Keith Moore" <[email-masked]>
To: "Ling, Hung C (Hung)" <[email-masked]>
Cc: <[email-masked]>; <[email-masked]>; <[email-masked]>;
<[email-masked]>; <[email-masked]>
Sent: Monday, June 16, 2003 7:50 PM
Subject: Re: Proposal for slight edit to section 6.2.1 of draft-ietf-ipr-t
echn ology-rights-09.txt

> > or RFC, unless the required disclosure is already on file.  Participants
who

---

From: "Bob Wyman" <[email-masked]>
Date: Mon, 23 Jun 2003 18:08:48 -0400

Todd Glassey wrote:
> But unless that disclosure is authorized this unauthorized
> disclosure causes the IP owner irreperable damages.

	So what?

	The fact that an unauthorized disclosure may cause harm to
someone is, of course, unfortunate, however, it does not present a risk
of litigation for the IETF or anyone other than the individual who made
the unauthorized disclosure. 
	Trade secrets are matters of contracts between identified
parties. The creation of a contract between two parties does not create
obligations for a third party. Also, once the trade secret has been
divulged, it is no longer a secret and can be discussed, exchanged, etc.
without fear of litigation by anyone not a party to the non-disclosure
agreement.
	Unauthorized disclosures cause no problem for the IETF. The only
problem that might occur is if the IETF unwittingly incorporates
copyrighted texts into its documents. However, trade secrets are not a
problem. That's the law. At least in the USA.

	In any case, the current effort is focused on documenting the
*current* IETF policy. Even if you had a valid issue, it wouldn't be a
relevant subject for discussion in this working group under the current
charter. The issue would become relevant only once this WG completes its
current task.

		bob wyman

---

From: "todd glassey" <[email-masked]>
Date: Mon, 23 Jun 2003 19:30:38 -0700

Bob - you are wrong - and it is very scary that you and many others insist
that there is no possible litigation against the IETF that would come out of
what is clearly a negligent submissions and release authorization process.

And to your comment of "so what"... my evaluation of that is that this
comment is one that clearly indicates your specific lack of concern on what
damage is done to the real IP Owners,  and my comment in response to you
that is that I hope you have really good lawyers.

Todd

----- Original Message ----- 
From: "Bob Wyman" <[email-masked]>
To: "'todd glassey'" <[email-masked]>; <[email-masked]>
Sent: Monday, June 23, 2003 3:08 PM
Subject: RE: Proposal for slight edit to section 6.2.1 of draft-ietf-ipr-t
echn ology-rights-09.txt

So what?

bob wyman

---

From: "todd glassey" <[email-masked]>
Date: Mon, 23 Jun 2003 20:05:42 -0700

And Bob - I want to make it clear that this is not a threat of legal action.
Its a comment that is specific to that I think that there is a serious legal
problem here and that if it does blow up its going to be very expensive for
any number of players to dig themselves out of "it"... But that is just my
personal opinion.

Todd

----- Original Message ----- 
From: "todd glassey" <[email-masked]>
To: <[email-masked]>; <[email-masked]>
Sent: Monday, June 23, 2003 7:30 PM
Subject: Re: Proposal for slight edit to section 6.2.1 of draft-ietf-ipr-t
echn ology-rights-09.txt

---

From: "Bob Wyman" <[email-masked]>
Date: Wed, 25 Jun 2003 12:00:50 -0400

Todd Glassey wrote:
> possible litigation against the IETF that would come out 
> of what is clearly a negligent submissions and release 
> authorization process. 
	The uncritical publication process used by the IETF for mailing
list submissions and ID publishing may actually be one of the IETF's
primary defenses against any potential litigation (at least in the US).
I suggest that the IETF acts very much as a "bulletin board" or
"listserver" in the way it publishes information.
	47 U.S.C. § 230(b)(1)-(2) states: "No provider or user of an
interactive computer service shall be treated as the publisher or
speaker of any information provided by another information content
provider." Given the interpretation of this and other parts of the law
which is provided in the Ninth Circuits 24-June-2003 decision in Batzel
v. Cremers, it would appear that the IETF is a "provider of an
interactive computer service" and thus would *not* be treated as the
publisher or speaker of content contributed by WG participants (the
contributors would be the "other content providers"). This would even be
the case if the IETF had done minor editing, reformatting or even
selection of items to be published. See the Ninth Circuit's decision at:
http://caselaw.lp.findlaw.com/data2/circs/9th/0156380p.pdf
	If an IETF contributor uses an IETF mailing list or Internet
Draft as the means by which a non-disclosure agreement is violated, the
IETF would not be liable for the damages that might result. 

		bob wyman

---

From: "todd glassey" <[email-masked]>
Date: Wed, 25 Jun 2003 19:51:54 -0700

Bob - you responses are funny. and I promise Steve that this is my last
posting on this. Today at least...

My comments inline and separated by "---" from Bob's commentary.

----- Original Message ----- 
From: "Bob Wyman" <[email-masked]>
To: "'todd glassey'" <[email-masked]>; <[email-masked]>
Sent: Wednesday, June 25, 2003 9:00 AM
Subject: RE: Proposal for slight edit to section 6.2.1 of
draft-ietf-ipr-technology-rights-09.txt

The uncritical publication process used by the IETF for mailing
list submissions and ID publishing may actually be one of the IETF's
primary defenses against any potential litigation (at least in the US).
I suggest that the IETF acts very much as a "bulletin board" or
"listserver" in the way it publishes information.
---
TSG: No the IETF is a formal standards process and that makes it much
more than a simple list serve at the very least. But I do agree that the
IETF is not a provider of any interactive publication services.

TSG:  Further it does not publish commentary about IP, it publishes the IP
itself and so they are in and of that single thing clearly liable as a
publishing house..... As to the citation on the Batzel v. Cremers matter and
the  cited 47 USC commentary in the next paragraph I am still cackling 20
minutes later. In both instances Bob you fail notice that no ISP ever
requires a statement of copyright in its publications release process for a
mailing list, and that by contrast the IETF has a whole branch of its
Governance Process to IP issues, so here again this fails the sniff test for
the protection you seek to claim the IETF operates under. If you have any
doubt of this then ask yourself why do the IETF and ISOC require a massive
boiler plate in anything they republish?

---
47 U.S.C. § 230(b)(1)-(2) states: "No provider or user of an
interactive computer service shall be treated as the publisher or
speaker of any information provided by another information content
provider."
---
TSG: Here again you miss that there is an act of fraud being committed and
since we all are aware that this causes certain irreparable damages to be
done to the IP and the IP Holders with regard to the global IP protection
rights...
---
Given the interpretation of this and other parts of the law
which is provided in the Ninth Circuits 24-June-2003 decision in Batzel
v. Cremers,
---
TSG: Insert copious amounts of "Glassey Laughter  here" - and then in a
more resolved tone, "Bob Surely you jest. Not Hitler's Niece  ah haha ha
ahahahahah". See the more detailed retort to this citation below.

---
it would appear that the IETF is a "provider of an
interactive computer service" and thus would *not* be treated as the
publisher or speaker of content contributed by WG participants (the
contributors would be the "other content providers").

---
TSG: Sorry I am still laughing. So in the mean time you might
want to look at Title 18 as well here - I'll include the
links below, because any illicit filing of anything probably does
indeed constitute a provable "Interstate Fraud by Wire" and is
probably actionable as such too. The problem with that is that
some might also say that it also obligates the IETF to report
these indiscretions to the FBI, or it becomes a party to the
process.

o-    Check out the US DoJ Mail and Wire Fraud in the "Reading Room" for
more info:
http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/43mcrm.htm or
its Internet fraud site at http://www.internetfraud.usdoj.gov/

o-    US DoJ - handbook - fraud - No Gullible Victim/ No-Loss frauds
http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm00943.htm

o-    I also put forward that the use of someone else's identity in this
unauthenticated email system for formally submitting a work of IP for
publication could be interpreted judicially to constitute identity theft as
well, See:
http://www.usdoj.gov/criminal/fraud/idtheft.html#What%20Are%20Identity%20Theft%20and%20Identity

back to your commentary Bob -

---
This would even be

---
TSG: Annnnngh - buzzers sound loudly, and I continue laughing -
Ahahahahaah - you cite the "Hitler's Niece's Artwork" case  Re - Bazel V.
Cremers. OK, this is a case where someone published a statement about
"possibly stolen art" to a website and listserv that was privately sent to
them. So how is the IETF's process like that? -it's not.

TSG: But since you will likely argue this - lets amplify on this more. What
we are also talking about is that when someone files something fraudulently
there is probably a violation of copyright at the very least but also
possibly criminal fraud in the representation of the fitness for publication
of that material, and also a fraudulent representation that they had
authorization to do so. The only question then is whether the IETF has done
what would be considered "proper diligence' on whether the person is who
they claimed to be and whether their submission rights are what they
claimed.

TSG: The problem now is that the submission model does not address that
there is even a possibility that there is any release needed other than the
conveyance of copyright as per the boiler plate. All of which brings up the
issue of the IETF's being the instrument of tortuous interference with the
actual IP owners ability to do business...

TSG: In response to why this needs to be cleaned up, that is because IMHO
there is no way today to get around that the IETF's actions cause provable
harm if they are used to invalidate any rightful IP owners capabilities to
seek formal IP protection, and since the IETF is very aware of this, it also
cannot claim to have its head in the sand, thus the only way to ease its
liability profile is to require a formal release be submitted with each
document or as a blanket requirement for participation.

TSG:  Todd :-)
---

bob wyman