Subject: Re: recourse if our rules are violated?

From: [email-masked] (Scott O. Bradner)
Date: Mon, 9 Apr 2007 19:27:45 -0400 (EDT)

Joel expressed my opinion before I got around to it

Scott

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

---

From: Brian E Carpenter <[email-masked]>
Date: Tue, 10 Apr 2007 09:30:51 +0200

> Joel expressed my opinion before I got around to it

Ditto. I think any procedure that amounted to the IETF
making, or appearing to make, a judgment of bad faith
would expose the IETF to a world of hurt.

Rescinding an approval and restarting a Last Call when
a late disclosure shows up against a draft seems to me to be
obviously correct, and I doubt if it even needs documenting.

     Brian

---

From: John C Klensin <[email-masked]>
Date: Tue, 10 Apr 2007 09:12:21 -0400

> would expose the IETF to a world of hurt.

Gentlemen, I agree, which is why I made the point as tentatively
as I did.  _However_ I suggest that this situation is not very
different from the ones we make about excluding people from
mailing lists.  To make that relationship more clear, take it as
given that it is impossible to reach a conclusion of bad faith
if someone created a late disclosure and claimed ignorance once.
How about if the same party does it a second time, possibly with
a slightly different excuse, with a different draft?   How about
the tenth time?  And, if the answer is "no, can't reach such a
conclusion", what is a PR-action about besides cutting someone
off who clearly and repeatedly is performing actions that
interfere with the successful progress of the standards process?

      john

---

From: Brian E Carpenter <[email-masked]>
Date: Tue, 10 Apr 2007 15:27:54 +0200

> interfere with the successful progress of the standards process?

There is a difference, I think. In the case of disruptive postings,
the impact is completely internal to the IETF process. Everybody
learning to use the delete button would protect the standards process
just as well as a ban. In the case of possibly spurious IPR claims,
the impact could be external. If the IETF chooses to use the delete
button (i.e. ignore the claims), then every implementor must perform
due diligence, and be willing to go to court if they judge the claim
to be spurious.

I'm not sure what that leads to in terms of IETF procedures. We're
still left with two choices: ignore the IPR claim or ignore the
technology.

     Brian

     Brian

---

From: John C Klensin <[email-masked]>
Date: Tue, 10 Apr 2007 10:29:26 -0400

--On Tuesday, 10 April, 2007 15:27 +0200 Brian E Carpenter
<[email-masked]> wrote:

>> Gentlemen, I agree, which is why I made the point as
>> tentatively as I did.  _However_ I suggest that this
>> situation is not very different from the ones we make about
>> excluding people from mailing lists.  To make that
>...

> just as well as a ban.

I think that depends.  If the postings are disruptive because
they are, e.g., abusive of individuals and make wild claims that
are irrelevant to the IETF's technical work, then yes, there is
a difference and the issues are internal.  However, if the
disruptive individual is pushing a technically-plausible
alternative view, even one that the IETF has rejected, in a
too-aggressive way that becomes disruptive, then the IETF is
making a decision about the appropriateness of a technology (or
of further discussion of a technology) based on behavior of
individuals who we do not believe are following the rules.

> I'm not sure what that leads to in terms of IETF procedures.
> We're still left with two choices: ignore the IPR claim or 
> ignore the technology.

I would have chosen a different verb than "ignore", but, yes,
that is the problem and, at least, the reason we need to make
careful case-by-case decisions.

     john

---

From: "David B Harrington" <[email-masked]>
Date: Tue, 10 Apr 2007 10:30:46 -0400

<sarcasm>
Oh good.
I had been concerned that the Internet Appeals Board (IAB) was
thinking they had time to work things like architecture ...

</sarcasm>

dbh

> -----Original Message-----
> From: John C Klensin [mailto:[email-masked]] 
> Sent: Tuesday, April 10, 2007 9:12 AM
> To: Brian E Carpenter; Scott O. Bradner
> Cc: [email-masked]
> Subject: Re: recourse if our rules are violated?
> 
> 
>

---

From: John C Klensin <[email-masked]>
Date: Tue, 10 Apr 2007 10:46:41 -0400

> thinking they had time to work things like architecture ...

Perhaps fortunately, none of Brian, Scott, Joel, or myself are
members of that body.

    john

---

From: "todd glassey" <[email-masked]>
Date: Tue, 10 Apr 2007 10:50:13 -0700

----- Original Message ----- 
From: "Brian E Carpenter" <[email-masked]>
To: "Scott O. Bradner" <[email-masked]>
Cc: <[email-masked]>
Sent: Tuesday, April 10, 2007 12:30 AM
Subject: Re: recourse if our rules are violated?

> would expose the IETF to a world of hurt.

You mean like accepting IP from individuals who the IETF knows have no legal 
claim to those IP's or who cannot possibly represent the legal interests of 
their "Sponsors"? I agree - and not just the organization but those 
individuals seated in those roles and their Sponsor's too.

The problem is that much of the IETF's boiler plate resembles a large block 
of Jarlsburg Cheese. Holes through it everywhere.

> obviously correct, and I doubt if it even needs documenting.

Wrong - Everything the IETF does, and how the processes work MUST be 
documented and fully disclosed.

---

From: Frank Ellermann <[email-masked]>
Date: Tue, 10 Apr 2007 20:06:40 +0200

> careful case-by-case decisions.

How about a default rule "remove RFC from standards track" that
can be overruled by an IETF consensus ?

Frank

---

From: "todd glassey" <[email-masked]>
Date: Tue, 10 Apr 2007 14:01:32 -0700

> a difference and the issues are internal.

Who is to make that call?

> However, if the

The problem is John that the IETF's operations are 'decided' by a very small 
group of people who really dont seem to want outside voices involved. This 
isnt abuse its a conspiracy to 'tortuously interfere' with another's 
ininitiave and the IETF and in particular those managers within the IETF 
need to be held accountable for that.

In my case for instance I am still debating as to whether to sue the IETF 
for eliminating my voice from the IETF mailing list since it prevents me 
from any new efforts within the IETF. So far I am too busy with the new time 
services company to spend the time, but that could change... My point is 
that any and all suspensions must be reviewable as temporary IMHO.

Todd Glassey

---

From: Harald Tveit Alvestrand <[email-masked]>
Date: Tue, 10 Apr 2007 23:44:22 +0200

> can be overruled by an IETF consensus ?

Remember that two of the possible kinds of IPR disclosures are:

- "oops, we forgot to tell you about this patent, here's the license that 
clearly and unambiguously gives you permission to use it in any way you 
want to"

- "oops, we forgot to tell you about this patent, here's a pile of legal 
mutterings that tell you absolutely nothing and will leave you wondering 
about the ability to use the technology for the next 20 years"

and every shade in between.
I don't like "default" rules.

                    Harald

---

From: Brian E Carpenter <[email-masked]>
Date: Wed, 11 Apr 2007 09:13:01 +0200

On 2007-04-10 23:44, Harald Tveit Alvestrand wrote:
> 
> 
> --On 10. april 2007 20:06 +0200 Frank Ellermann 
> <[email-masked]> wrote:
> 
>> John C Klensin wrote:
>>
> - "oops, we forgot to tell you about this patent, here's the license 
> that clearly and unambiguously gives you permission to use it in any way 
> you want to"
> 

Agreed. I see no win in trying to codify the answer to unknown questions.

For example, there's another case:

- "oops, we didn't forget this patent, we thought it was irrelevant,
but some IPR lawyer just found a new way to interpret one of the claims,
so we have to tell you to cover ourselves, but we don't really think it
applies, probably. Sorry!"

Try writing a rule to deal with that case.

     Brian

---

From: Frank Ellermann <[email-masked]>
Date: Wed, 11 Apr 2007 16:26:03 +0200

> I don't like "default" rules.

If you don't like the SHOULD we can try a MAY without IETF consensus:

"An approved standards track RFC identified to specify 'patented'
 technology after its approval, where contributors neglected their
 duties to disclose IPR under BCP 79, MAY be removed from standards
 track, if there's no IETF consensus for a different approach."

There is already a "default" rule how to get rid of cruft, but it's
not appropriate for such submarine patents, and getting a consensus
to demote the RFC might be tricky.  With an explicit MAY the IETF
consensus has to be 'no, we want to keep this RFC anyway' to avoid
the demotion, and picking this "option" (MAY) would be limited to
the IESG (or the outcome of an appeal).

Of course a statement in this direction needs to be more verbose
than the raw idea stated above.  I don't think that the "certified
troll" BCP can help with patent trolls / issues.

Frank
-- 
MARID: once bitten, twice shy

---

From: Simon Josefsson <[email-masked]>
Date: Wed, 11 Apr 2007 16:49:43 +0200

>  track, if there's no IETF consensus for a different approach."

I like this text.  It should be clarified that 'remove from standards
track' actually means re-labeling it as information (or historical?).
That avoids people thinking that some RFCs will be physically removed.

I suppose the process for this would be to for someone to notice the
situation, send a request to the IESG, the IESG will last call the
proposal to move a particular standard to informational, and will act
depending on the last call comments received.

> the IESG (or the outcome of an appeal).

Right.

/Simon

---

From: "todd glassey" <[email-masked]>
Date: Wed, 11 Apr 2007 09:34:26 -0700

Simon -
"What happens to Standards efforts which are found to have IPR issues in 
them after the publication of the documents" is the issue... and that is 
still unanswered.

Todd
----- Original Message ----- 
From: "Simon Josefsson" <[email-masked]>
To: "Frank Ellermann" <[email-masked]>
Cc: <[email-masked]>
Sent: Wednesday, April 11, 2007 7:49 AM
Subject: Re: recourse if our rules are violated?

>>> that
>>  technology after its apFrom [email-masked] Wed Apr 11 12:35:38 2007
From: "todd glassey" <[email-masked]>
To: "Simon Josefsson" <[email-masked]>,
	"Frank Ellermann" <[email-masked]>
Date: Wed, 11 Apr 2007 09:34:26 -0700
Cc: [email-masked]
Subject: Re: recourse if our rules are violated?

Simon -
"What happens to Standards efforts which are found to have IPR issues in 
them after the publication of the documents" is the issue... and that is 
still unanswered.

Todd
----- Original Message ----- 
From: "Simon Josefsson" <[email-masked]>
To: "Frank Ellermann" <[email-masked]>
Cc: <[email-masked]>
Sent: Wednesday, April 11, 2007 7:49 AM
Subject: Re: recourse if our rules are violated?

>>> that

---

From: "todd glassey" <[email-masked]>
Date: Wed, 11 Apr 2007 09:35:44 -0700

---

From: "todd glassey" <[email-masked]>
Date: Wed, 11 Apr 2007 09:35:44 -0700

----- Original Message ----- 
From: "Brian E Carpenter" <[email-masked]>
To: "Harald Tveit Alvestrand" <[email-masked]>
Cc: "Frank Ellermann" <[email-masked]>; <[email-masked]>
Sent: Wednesday, April 11, 2007 12:13 AM
Subject: Re: recourse if our rules are violated?

> Try writing a rule to deal with that case.

That is really simple Brian... the disclosure requirements are for any and 
all associated claims whether patents are issued or not.

[email-masked]

----- Original Message ----- 
From: "Brian E Carpenter" <[email-masked]>
To: "Harald Tveit Alvestrand" <[email-masked]>
Cc: "Frank Ellermann" <[email-masked]>; <[email-masked]>
Sent: Wednesday, April 11, 2007 12:13 AM
Subject: Re: recourse if our rules are violated?

> Try writing a rule to deal with that case.

That is really simple Brian... the disclosure requirements are for any and 
all associated claims whether patents are issued or not.

---

From: Harald Alvestrand <[email-masked]>
Date: Wed, 11 Apr 2007 18:43:02 +0200

> the IESG (or the outcome of an appeal).
Remember that the 2119 uppercase MAY is logically equivalent to MAY 
NOT..... it means that an implementor may choose to do this, or may 
choose to not do it....

---

From: Harald Alvestrand <[email-masked]>
Date: Wed, 11 Apr 2007 18:44:04 +0200

todd glassey wrote:
> Simon -
> "What happens to Standards efforts which are found to have IPR issues 
> in them after the publication of the documents" is the issue... and 
> that is still unanswered.
It's answered, and the answer (so far) is "it depends on the situation".

---

From: "todd glassey" <[email-masked]>
Date: Wed, 11 Apr 2007 10:19:59 -0700

Harald - That's not an answer... its a method of avoiding the issue which is 
apparently from the sheer number of times its been done here, something that 
this management likes to do.

The question is/are simple.

    1)     What happens to a filing (after its publication) that is found to 
have external IP constraints which were undisclosed???

    a) is there a way to pull the publication and prevent its use by those 
the IETF has given 'any and all uses' rights to?

    b) who is liable for the IETF's actions in publishing documents it 
doesn't have ownership of, or rights to publish since the IETF's copyright 
statement seems to prevent any recall or control of those IP's.

    c) in copyright-compliant publication models, there is a take-down 
provision which is made impossible by the IETF's current 'give it all away 
for any and all uses', so how does the IETF intend to address this issue 
since the Research Exemption would only apply to efforts within the IETF 
which were specific to approved IP initiatives IMHO...

    2)    What happens to a Standard that is found to have external IP 
constraints controlling it, that are found after the Standard's publication?

    3)     How does the IETF and its management protect itself from IP 
issues when it cannot recall any documents which were published wrongly, or 
is it the intention of the IETF to misrepresent its intent and actually to 
build processes to make it impossible from a real-world perspective to 
control IP submitted to it?

Todd Glassey

----- Original Message ----- 
From: "Harald Alvestrand" <[email-masked]>
To: "todd glassey" <[email-masked]>
Cc: "Simon Josefsson" <[email-masked]>; "Frank Ellermann" 
<[email-masked]>; <[email-masked]>
Sent: Wednesday, April 11, 2007 9:44 AM
Subject: Re: recourse if our rules are violated?

---

From: Frank Ellermann <[email-masked]>
Date: Wed, 11 Apr 2007 22:38:28 +0200

> NOT..... it means that an implementor may choose to do this, or may

Yes, I automatically read "maybe not" whenever I see a MAY.  But the
"implementor" in this case is the IESG (or after an appeal the IAB),
they'd ask for legal advise wrt "identified 'patented' technology" -
just somebody filing an IPR disclosure isn't a proper identification.

I think this OPTION doesn't exist today, the only way to get rid of
the problematic standard would be another PS obsoleting it, and/or a
move to "historic".  No chance for a move to "info" or "experimental"
yet (AFAICT).  With the MAY anything goes, nothing's wrong with an
"info" RFC explaining patented stuff.

Frank (MD5 and BOCU-1 fan)

---

From: Frank Ellermann <[email-masked]>
Date: Wed, 11 Apr 2007 23:09:13 +0200

todd glassey wrote:
 
> What happens to a filing (after its publication) that is found to

Nothing, only the status line on the front page can be changed.

> is there a way to pull the publication and prevent its use by those

No.

> who is liable for the IETF's actions in publishing documents it
> doesn't have ownership of, or rights to publish since the IETF's
> copyright statement seems to prevent any recall or control of
> those IP's.

If you give me a cookie, and I give it to somebody who eats it,
and it later turns out that you've stolen it, then you're liable,
unless the owner can prove that I knew this (here for values of
cookie = RFC, and I = IETF).  IANAL, you are, aren't you ?

[...skipping a hard question, where I've no clear idea at all...]

> What happens to a Standard that is found to have external IP

We're just discussing a proposed option to update its status line.

> How does the IETF and its management protect itself from IP
> issues when it cannot recall any documents which were published
> wrongly

I've heard that the management of the Trust etc. have some legal
insurance.

> is it the intention of the IETF to misrepresent its intent and
> actually to build processes to make it impossible from a 
> real-world perspective to control IP submitted to it?

The "intentions of the IETF" are a moving target, but sometimes
RFCs are published claiming to represent a (past) IETF consensus
binding until it's obsoleted or updated by another RFC.

Was that a quiz ?  What's my result ?

Frank

---

From: Harald Alvestrand <[email-masked]>
Date: Thu, 12 Apr 2007 00:07:10 +0200

> Nothing, only the status line on the front page can be changed.
Not even that. Only the status line in the indexes listing them can be 
changed.

---

From: Brian E Carpenter <[email-masked]>
Date: Thu, 12 Apr 2007 09:56:21 +0200

>  track, if there's no IETF consensus for a different approach."

Why would we write that down, when it's already true? I believe this is
well within the IESG's power under RFC 2026.

     Brian

---

From: Scott W Brim <[email-masked]>
Date: Thu, 12 Apr 2007 05:29:27 -0400

> well within the IESG's power under RFC 2026.

I tend to agree.  Consider ... If an IPR disclosure glitch is
discovered for an RFC, there needs to be IETF consensus on what to do
with it, where removing it from standards track is one option.  The
obvious first step in IETF consensus is Working Group reevaluation.
When they are done there can be an IETF last call on their decision,
but their decision could be anything at all.  I seem to recall that we
have done this with other RFCs based on other discoveries not related
to IPR.

The procedure described here is already in place in 2026.  If a
problem is discovered with something that's standards track, the WG
will consider how to revise it, where the "revision" may be a new RFC
to replace it (in which case it is moved to different status, even
Historic).

So if you want to add a new sentence, it should not be about
procedure, since we already have all the procedure we need.  What is
special here is the particular reason for invoking that process.  If
you want to add a sentence, I would just note that one possible reason
for a major revision or replacement of a standards track document
would be discovery of new IPR claims against it.

swb

---

From: Frank Ellermann <[email-masked]>
Date: Thu, 12 Apr 2007 15:54:29 +0200

Scott W Brim wrote:

 [about my "MAY remove from standards track if..."]

>> Why would we write that down, when it's already true?

We wouldn't.  I thought that this would require a new
consensus for the new status.  My proposal allowed to
decree a new status unless there's a consensus against it.

Shifting the burden to gather a consensus to the folks
who want to keep the submarine patent on standards track.

>> I believe this is well within the IESG's power under
>> RFC 2026.

Which part do you have in mind ?  I see the "move to
historic" in 6.2 and 6.4.  For the IPR rule violation
discussed here "historic" could be a misnomer.  The
patented technology is not necessarily "moribund", it's
only not good enough for standards track.

> What is special here is the particular reason for
> invoking that process.  If you want to add a sentence,
> I would just note that one possible reason for a major
> revision or replacement of a standards track document

If you think that "move to historic" is enough, yes.

Frank

---

From: John C Klensin <[email-masked]>
Date: Thu, 12 Apr 2007 10:20:29 -0400

--On Thursday, 12 April, 2007 05:29 -0400 Scott W Brim
<[email-masked]> wrote:

>>> "An approved standards track RFC identified to specify
>>> 'patented' technology after its approval, where contributors
>>>  neglected their duties to disclose IPR under BCP 79, MAY be
>>>  removed from standards track, if there's no IETF consensus
>>>  for a different approach."
>> 
>> Why would we write that down, when it's already true? I
>> believe this is well within the IESG's power under RFC 2026.
> 
> discovered for an RFC, there needs to be IETF consensus on
> what to do with it, where removing it from standards track is
> one option.  The obvious first step in IETF consensus is
> Working Group reevaluation. When they are done there can be an
> IETF last call on their decision, but their decision could be
> anything at all.  I seem to recall that we have done this with
> other RFCs based on other discoveries not related to IPR.
> 
> problem is discovered with something that's standards track,
> the WG will consider how to revise it, where the "revision"
> may be a new RFC to replace it (in which case it is moved to
> different status, even Historic).
> 
> procedure, since we already have all the procedure we need.
> What is special here is the particular reason for invoking
> that process.  If you want to add a sentence, I would just
> note that one possible reason for a major revision or
> replacement of a standards track document would be discovery
> of new IPR claims against it.

Let me slightly disagree by asking some questions whose answers
really push the boundaries of existing documented procedures.
First we have no mechanism for forcing the review that we seem
to all agree is possible and appropriate.  Is that review
automatic?  Does it require AD (or WG) approval to initiate it?
Does it require some sort of community consensus to start the
review process?  Could an AD who some might suspect of having
other motives block such a review (at least absent an appeal)?

And can the review, or the IESG in response to a review, do
something unusual, such as moving an existing, published,
standards-track RFC to some other category (not necessarily only
Historic) while a replacement RFC is being developed, moved
toward consensus, and published?   It might be much easier (and
lots quicker) for the community to reach the conclusion "given
those encumbrances, this document is not suitable for the
standards track" than to develop a replacement RFC.   If the
conclusion is that one --or the presumably more extreme "this
never would have been standardized and might not even have been
published, had the encumbrance been known"-- do we really want
to leave the document on the standards track until a replacement
makes it way through the works?   

    john

---

From: Simon Josefsson <[email-masked]>
Date: Thu, 12 Apr 2007 16:27:40 +0200

> makes it way through the works?   

That is a good question.  It may be that the technical problem a
patented standards track document solves is no longer relevant enough
for people to work on a replacement.  Also, a technology that
supersedes a patented approach may not be sufficiently similar to say
that the newer one fully replaces the old one.

/Simon

---

From: Brian E Carpenter <[email-masked]>
Date: Thu, 12 Apr 2007 17:04:15 +0200

On 2007-04-12 15:54, Frank Ellermann wrote:
...

> only not good enough for standards track.

Section 4.2:
    A specification may have been superseded by a more recent
    Internet Standard, or have otherwise fallen into disuse or disfavor.
----------------------------------------^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
    Specifications that are not on the standards track are labeled with
    one of three "off-track" maturity levels:  "Experimental",
    "Informational", or "Historic".  The documents bearing these labels
    are not Internet Standards in any sense.

It's clear to me that this covers the case of an unknown and
undesirable IPR encumbrance.

Section 6.1:
    A "standards action" -- entering a particular specification into,
    advancing it within, or removing it from, the standards track -- must
    be approved by the IESG.

So removing a document from the standards track is explicitly a power
of the IESG, and subject to the usual appeals process if needed.

     Brian

---

From: "todd glassey" <[email-masked]>
Date: Thu, 12 Apr 2007 08:13:21 -0700

John - let me push back with responses to the killer points you brought 
up...

There is  Much Much More inline below.

Todd

----- Original Message ----- 
From: "John C Klensin" <[email-masked]>
To: "Scott W Brim" <[email-masked]>; "Brian E Carpenter" 
<[email-masked]>
Cc: "Frank Ellermann" <[email-masked]>; <[email-masked]>
Sent: Thursday, April 12, 2007 7:20 AM
Subject: Re: recourse if our rules are violated?

>> different status, even Historic).

No... The WG's do not get to ramdomly decide that they want to ignore the 
rules that pertain to everyone else.

> automatic?

It should be.

> Does it require AD (or WG) approval to initiate it?

No, it shouldnt. The process should automatically trigger when anyone sends 
a notice to the IPR Desk that there are IPR Concerns with any endeavor that 
they are a part of, and their participation in that effort gives them that 
right since there is cost to them for that particapation.

> review process?

Again - NO - this is not about Community Concensus, its about a process that 
remains the same for each and every circumstance its applied to.

> Could an AD who some might suspect of having

Yes, as can a WG by simply flodding that WG with voices saying "nay", which 
is why this is a mechanical procedural kinda thang, its not optional and 
should just happen when any IPR issue comes up.

Further NO initiaive should progress from its last-stable state until those 
IPR issues are resolved once an IPR-Disclosure Request is submitted to those 
working on the Endeavor/Initiative.

(BTW - this is a new idea "An IPR Disclosure Request" would be a request 
from some part/party involved in the WG hosting the vetting of some 
Initiative, to those who submitted that Initiative to formally document and 
disclose any and all IPR issues therein. I think the failure to do so 
possibly also would constitute an "Act of Fraud" if it was not complied with 
since those individuals hiding those IPR issues would be in effect stealing 
engineering and professional services from the WG's Members and their 
Sponsors therein.)

> toward consensus, and published?

If it cant then there is no recourse therein for IPR issue claims.

> It might be much easier (and
> standards track" than to develop a replacement RFC.

The problem is the term "Community". This is a structure and process issue 
and not something for Community Concensus.

> If the

---

From: "todd glassey" <[email-masked]>
Date: Thu, 12 Apr 2007 08:52:45 -0700

Good thing its clear to you. Lets ask IBM's General Counsel if its as clear 
to them as well Brian, I bet they say its not...  OK?

Todd Glassey

---

From: "todd glassey" <[email-masked]>
Date: Thu, 12 Apr 2007 09:04:02 -0700

Harald  - let me ask then...

----- Original Message ----- 
From: "Harald Alvestrand" <[email-masked]>
To: "Frank Ellermann" <[email-masked]>
Cc: <[email-masked]>
Sent: Wednesday, April 11, 2007 3:07 PM
Subject: Re: recourse if our rules are violated?

> Not even that. Only the status line in the indexes listing them can be

So then they continue to use 'work product resources' from the WG's although
those issues remain open?

I know you folks hate hearing stuff like this but this is a perfect set of
grounds for a lawsuit - let me explain...

The Sponsor's are investing the Engineering Services and the time those take
from their professional staff in the IETF, so they have a financial standing
in any and all actions taking place within the IETF even if they are not the
submitters or parties to the filing of a particular effort - PERIOD. NO
ARGUMENTS ARE POSSIBLE TO THIS STATUS...

So, if an Entity's efforts are made 'useless or contaminated' by undisclosed
IPR Claims, then they also have a claim against all of the following list:

    1)    The WG Chair for not managing the effort properly and directing
the WG to continue spending the WG's and the Sponsor's IP Development
Efforts on Workproduct for which there are underlying IP Controls/claims
which have not been disclosed intentionally.

    2)    The AD for allowing the effort to proceed and their efforts to be
wasted or worse, those efforts becoming  dependant on the IP that the IETF
doesn't own and as such cannot pass through its "Any and All uses" license.

    3)    The WG Members submitting the effort

    4)    Any and all other IETF members who may have had knowledge of the
IPR.

The fun part is that because the IETF refuses to change its copyright and
license, it and those directly responsible for those refusals (i.e. the
members of the IPR WG) can also be figured in as members of this Defendant's
Class as well as the IESG, and ISOC itself.

This isn't rocket science its simple analysis.

Todd

---

From: "todd glassey" <[email-masked]>
Date: Thu, 12 Apr 2007 09:11:20 -0700

My apologies to the list - I should have closed the "oops this creates yet 
another hole in the IETF's process for which it can be sued commentary" with 
the following:

--------------

The point of this commentary is to help the IETF understand how serious this 
IPR concept and managing IP Rights in-synch with Global IP Standards, 
whether those are OpenSource, Artistic License, GPL or Restricted Licenses 
in nature. And as such the functional task is to create a Contracts Process 
which is not Mechanically Flawed as the current one is.

In doing so we need to create Boilerplate that protects the IETF and allows 
for proper controls on documents once printed and disclosed including all 
the IP's originally submitted and those that were created within the IETF's 
framework as well.

These are simple requirements and ones which have been curiously overlooked 
in the interest of creating an IETF which the technologists inside of 
believe makes them immune to local IPR and IP Laws, neither of which are 
true.

That said, this again is not about establishing a consensus, its about 
establishing a fair and open process which makes consensus irrelevant for an 
IPR issue.

Todd Glassey
----- Original Message ----- 
From: "todd glassey" <[email-masked]>
To: "Harald Alvestrand" <[email-masked]>; "Frank Ellermann" 
<[email-masked]>
Cc: <[email-masked]>
Sent: Thursday, April 12, 2007 9:04 AM
Subject: Re: recourse if our rules are violated?

---

From: Frank Ellermann <[email-masked]>
Date: Thu, 12 Apr 2007 21:35:00 +0200

Brian E Carpenter wrote:

 [2026 4.2]
> ------------------------------------^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

"Disfavor" fits, thanks.

 [2026 6.1]
> advancing it within, or removing it from, the standards track --
> must be approved by the IESG.

A few days ago I checked 6.1.1, that section starts with "enter or 
advance", and I wasn't looking for "remove".  In conjunction with
6.1 apparently anybody can try to initiate a "standards action" if
it's not about a document of an existing WG.

Good, that's a better knife than the "certified troll" BCP.

Frank

---

From: "todd glassey" <[email-masked]>
Date: Thu, 12 Apr 2007 13:55:20 -0700

Frank,  (and the rest of the IPR WG) PLEASE DONT TAKE ANY OF MY RESPONSES
BELOW AS PERSONAL - they are not.

That said... In answer to your question, you passed with %100, especially
the Moving
Target response - yee ha!

Lets look at some more...

t.

----- Original Message ----- 
From: "Frank Ellermann" <[email-masked]>
To: <[email-masked]>
Sent: Wednesday, April 11, 2007 2:09 PM
Subject: Re: recourse if our rules are violated?

> Nothing, only the status line on the front page can be changed.

And this is why the IETF becomes liable for each and everything it
publishes, because it has no Take Down Policy or method of enforcing one,
and it and only it is responsible for the publishing of the content it
publishes... since it and only it owns that content by the terms of the
submission license's conveyance...

>> the IETF has given 'any and all uses' rights to?

Which substantiates the above commentary about liability.

Lets look at another analogy here - Its the Sale of the Gun argument... I
sell you a gun I (stole, built or bought for resale) and you go out and
shoot someone with it... Who is responsible for the Guns Use? Me or you?

Lets take that a step farther. Instead of using the Gun yourself you (and I
am speaking of the IETF in this case) give that gun away to millions of
people who all go and use it, some for evil purposes, some for profit... Now
we are talking about tens of thousands of 'shootings'... so now who is
liable for those damages (me for submitting the stolen gun to you or you for
replicating the gun and making it freely available as a 'gift from you -
again the IETF in this case???).

Likewise there is the issue of the profits against the unauthorized use of
the IP to deal with as well which also there is tons of precursory law for
as well... this is not complex.

> and it later turns out that you've stolen it, then you're liable,

the Cookie is a bad example, but maybe... unless I 'gave you the cookie for
something of value' in which case its an exchange... The value of the IP
given to the IETF and the promise of  vetting is the key thing here I think.

> cookie = RFC, and I = IETF).  IANAL, you are, aren't you ?

Yes but ass I noted - the cookie is not a good analogy... lets try a car or
something of the  value of the IP in a submission. Like the Gun model, if I
had a 'stolen car' and sold it to you
and you had knowledge that there was anything amiss about the title of the
vehicle or any other Intellectual Properties it contained or was derived
from, and you didn't verify it but rather you continued to use it or better
yet you built some other IP or system from it, then there are a number of
issues to address including the ownership of the derivatives and damages
against the IETF (who continues to facilitate the fraud) through its not
having reasonable recourse in its boiler plate IMHO.

Think of it this way - what happens if company A has an IP which some third
party documents and then submits to the IETF. What is it that the IETF owns?
is it the core IP which was owned by Company A or is it the words about that
IP which were submitted by the third party? I think its just the third
parties words
about IP "A".

The distinction is critical since the words about the IP do not allow the
IETF to develop any derivative efforts in any sense of the word, since the
IETF neither owns the IP of Company A nor did the party submitting the
work-product for publication.

So in this instance, the IETF has published a document which the rightful
owner  (Company A) is entitled to have removed from publication... and since
the IETF cannot do that, it becomes liable for the damages that this failure
in its processes causes.

Further I think the IETF is also liable for the profits against the use
of that same information and any derivatives thereof, and ISOC is where that
damage claim
money is coming from.

> We're just discussing a proposed option to update its status line.

I dont think that is enough. I think that the owner of that IP is entitled
to significant damages from the IETF since the IETF intentionally made that
IP un-recallable in direct defiance of any reasonable "Take Down" policy and
the Copyright License Provisions to enable it... The IETF doesn't get to
both
claim that "we are only a publication house"  since it becomes the Owner of
the IP in question (through the conveyance to the Trust) and publishes IP it
cannot document its true control over in an unlimited manner.

Simply put , if the individual assigns any and all rights to the submission
to the IETF then the IETF is publishing 'its own property' and not the
property of the person that submitted it. As such the IETF itself is in fact
liable and a first year law or accounting student would know this, the IETF
also has a legal responsibility to exercise due care in republishing that IP
so it can respond to nefarious or policy violations in the IETF process
flow.

Remember the IETF accepts ownership of the IP prior to its republishing it
for
any and all uses and as such the IETF itself is liable here... This is
really simple Risk-Analysis and what it says is that the current Standard of
Care is insufficient.

> I've heard that the management of the Trust etc. have some legal

For what in particular???  I heard it was D&O coverage if anything, and they
do really need it since none of them have any experience managing
Intellectual Properties per their CV's I could find, but that's another
issue.

What I think you were alluding to would be an Errors and Omissions (E&O)
Policy and I bet there isn't an insurance company on this planet dumb enough
to underwrite that with the current IETF policies and Head-in-the-sand type
of operating policies. All any Insurance Carrier would have to do is to look
at the sheer number of documents or that they were all constrained by a
consensus vote by a bunch of techies and that would be it...

Anyone who wants to put money on this contact me offlist, I'll gladly take
your money to demonstrate how broken the current process/policy is.

> binding until it's obsolete or updated by another RFC.

Cool - yes I agree and that is the problem. The rules and hurdles are
inconsistent. What we need are rules and processes that are both transparent
and open and fair.

BTW - These intentions form the Goals and Operating Framework under which
the management team is constrained (OR not constrained as I allege the
current framework is built)...

> Was that a quiz ?  What's my result ?

100%  :-) - You da man bro!

Todd

---

From: "Tom Petch" <[email-masked]>
Date: Fri, 13 Apr 2007 16:37:09 +0200

I am puzzled. For some years now, our RFC have been carrying the boiler plate
"   The IETF invites any interested party to bring to its attention any
   copyrights, patents or patent applications, or other proprietary
   rights that may cover technology that may be required to implement
   this standard.  Please address the information to the IETF at
   [email-masked]."
so this situation was contemplated at least three years ago (I first saw it in
RFC3710:-).

So what did whoever introduced that text intend to happen?

(I appreciate that this thread is drifting away from the original question by
Steve which related to violation - suspend the violator sine die?)

Tom Petch

---

From: "todd glassey" <[email-masked]>
Date: Fri, 13 Apr 2007 10:43:29 -0700

Good point Tom -

----- Original Message ----- 
From: "Tom Petch" <[email-masked]>
Cc: <[email-masked]>
Sent: Friday, April 13, 2007 7:37 AM
Subject: Re: recourse if our rules are violated?

> so this situation was contemplated at least three years ago (I first saw 

Right - this is a solicitation for any commentary from anyone as to whether 
there are any suspected or known IPR issues with an Initiative. This is a 
really important issue since Company's who are sponsoring IETF participation 
are paying their employees to donate Engineering Time to the IETF and as 
such the IETF has a responsibility to them to make sure that those resources 
are ONLY used by properly controlled projects, otherwise the IETF becomes 
liable to the Sponsor for damages suffered therein one would think.
> So what did whoever introduced that text intend to happen?

I cant answer that but I can answer what should happen in the IETF:

1)     If the IETF is willing to take notice of IPR issues from anyone, then 
the parties those Issue Discovery efforts are pointed towards have a 
reasonable responsibility to disclose to the IETF and all other participants 
whether those issues are real or not since that will effect whether many 
sponsors would want to allow their Engineer's time donations to continue 
under the terms that those properties will become the owned property of the 
submittor and no one else.

2)    The submitters should have some period to respond formally to the IETF 
and the other members of the WG where the IPR challenge was submitted and in 
that timeframe no advancement of the original initiative can take place 
since doing so would make the IETF liable to the Sponsors for their 
Engineer's work product therein.

Todd

---

From: Frank Ellermann <[email-masked]>
Date: Fri, 13 Apr 2007 20:18:27 +0200

Tom Petch wrote:

> (I first saw it in RFC3710:-).

February 2004.  I first saw it three months later in
http://tools.ietf.org/html/draft-atkinson-callerid-00

It was introduced in RFC 3668 (obsoleted by RFC 3979,
updated by RFC 4879).

> So what did whoever introduced that text intend to happen?

My guess was that I should send a mail to iprATietf.org
when I feel that the bloodshed hits the fan.  A first
party IPR claim was published less than three weeks
after my complaint.  I've no idea what happened in any
backchambers before, at, or after that time, excluding
some stuff visible in the MARID jabber logs.

Frank

---

From: Frank Ellermann <[email-masked]>
Date: Fri, 13 Apr 2007 22:10:12 +0200

>> Nothing, only the status line on the front page can be changed.

[[ Harald corrected that already:  the status can be changed,
   but not the status line on the published RFC front page. ]]

> And this is why the IETF becomes liable for each and everything
> it publishes, because it has no Take Down Policy or method of
> enforcing one

I don't see that, it's like a newspaper, once published you can't
undo that.  You could only promise to never publish it again.

> it is responsible for the publishing of the content it publishes

The IETF might have to do something about violations brought to
its attention.  Wrt IPR it explicitly solicits feedback in those
long and boring boilerplates in any posted I-D.  And there's a
procedure to publish 1st + 3rd party IPR claims, Simon has just
tested it for SHA, you can check the effect on the IETF IPR page.

There's nothing more that could be done with RFCs once they are
published, they are immediately copied and redistributed by
thousands of mirrors and individual collectors.  It's impossible
to undo that.  It's only possible to publish a better document,
stating that the old document turned out to be a bad idea, with
an "obsoletes RFC NNNN" or "updates RFC NNNN" hint on its front.

> analogy here - Its the Sale of the Gun argument... I sell you
> a gun I (stole, built or bought for resale) and you go out and

In my country there's a chance that it's also you, not only me.
Comparing RFCs with guns isn't much better than my comparison
with donated cookies, it leads nowhere.

> who is liable for those damages (me for submitting the stolen
> gun to you or you for replicating the gun and making it freely
> available as a 'gift from you - again the IETF in this case???).

You have to promise that the RFC is not stolen.  And anybody who
thinks that it's stolen or otherwise harmful, no matter what you
say, is invited to state this.  Publishing an RFC takes about
three years, there's a realistic chance to find problems with it.

At some point you've to "let go gracefully" and hope the best,
otherwise you would wait forever for wild and wonderful problems.
Check out <http://tools.ietf.org/html/rfc4677#section-8.2>

Your concept of the IETF is IMO clearly wrong, it's no company.

Nobody can "invest time", and then sue if this doesn't work as
expected.  They can "donate time", letting some of their staff
contribute individually.  They can sponsor travels to meetings.
They can admire the effect of the <organization> element on any
I-D posted by their employees.  And more important others will
admire it.  They can stop to donate if they're not happy with
the effect.  If they want something else or more they probably
confused the IETF with Unicode.org, the W3C, ECMA, or what else.

> I think the IETF is also liable for the profits against the use
> of that same information and any derivatives thereof, and ISOC
> is where that damage claim money is coming from.

You could try to sue them for intentionally causing harm.  IMO
your chances would be zero, you'd have to explain why you didn't
state your concerns in time, why you didn't use your right to
appeal decisions, why you didn't post a "better" Internet Draft,
the works.  It's obvious when folks prepare to go this way, and
that's why there's a point "1F" in the questionnaire.

> Simply put , if the individual assigns any and all rights to the
> submission to the IETF then the IETF is publishing 'its own
> property' and not the property of the person that submitted it.

"Any and all rights" would be a rather short "inbound rights" I-D,
the version I've seen was somewhat longer.

> the IETF also has a legal responsibility to exercise due care in
> republishing that IP so it can respond to nefarious or policy
> violations in the IETF process

"The IETF" is a community of volunteers without clear membership
for most contributors.  A proper subset of that are the folks who
went to 3 of the last 5 meetings, thereby becoming eligible for
the NomCom lottery.  Another proper subset (in practice a subset
of the second subset) are the folks appointed to be ADs etc. by
the NomCom.  Nobody in this community is "legally responsible" if
I post a nefarious draft (i.e. nobody but me).

It's a mere courtesy of the secretary that they add a blank in
the subject of draft announcements where they feel that this is
considerably worse than the average.  And they're not forced to
check this, with the new automatical tool nobody will check the
content as long as it's formally an Internet Draft without nits.

Of course the IETF procedures allow a "Do Not Publish" (as RFC)
decision for say using a single bit to count "", "0", "1" => 3.

I think there's no serious problem to remove nefarious I-Ds from
the IETF repositories when that's necessary.  If somebody else
already copied it, too bad.  And in practice thousands will have
copied it, worldwide, among them Googlebot.

> What we need are rules and processes that are both transparent
> and open and fair.

BTW, did you note that an additional "note well" page behind the
mailing list link on the main page was inserted, after you made
a fuss about the "note well" acceptance ?  One click more... :-(

Frank

---

From: "todd glassey" <[email-masked]>
Date: Fri, 13 Apr 2007 15:08:18 -0700

Frank

----- Original Message ----- 
From: "Frank Ellermann" <[email-masked]>
To: <[email-masked]>
Sent: Friday, April 13, 2007 1:10 PM
Subject: Re: recourse if our rules are violated?

> undo that.  You could only promise to never publish it again.

Not true - the Newspaper doesnt make the past issues of its published 
articles available for any and all to use forever for free... the IETF does. 
The Newspaper does regularly have issues with publishing corrections and the 
IETF cannot with its process, once published and 'given away' the IETF loses 
the ability to change that since there is no statement saying "this license 
can be amended or revoked at any time as per the IETF's IPR Policy"...

> its attention.

Like what for instance? the point is that it cannot do anything about a 
document it republished under an "Any and All use" outgoing license when 
some IPR fiasco pops up. Thats one reason the IETF is liable.

>  Wrt IPR it explicitly solicits feedback in those

But those dont really do anything to the outgoing rights of the document in 
quesiton... its still available forever as it was, so there is no possible 
way that the IETF can fix any damage its publication does.

> thousands of mirrors and individual collectors.

OK so what - if there is a clause in the outgoing license that says that for 
certain specific IPR issues, the IETF may have to rescind the outgoing 
license and reserves the right to do so to protect the IETF from liability 
therein.

> It's impossible

Uh Frank - that's not enough and its specifically why the IETF and all those 
involved retain that liability. Have your Corporate Counsel review this and 
advise you. I bet money what I am saying is 100% true although not terribly 
pleasant.

> with donated cookies, it leads nowhere.

So lets look at the Mutual Recognition Agreements between your Country and 
mine which mean that any IPR issues have to satisfy those too.

> You have to promise that the RFC is not stolen.

No you dont. You have to email the RFC to the editor. There is no promise of 
anything made, and there is no real conveyance of the IP either but that's 
another issue.

> And anybody who

Yes, and this also document's the value and number of man hours in the 
process too.

> Your concept of the IETF is IMO clearly wrong, it's no company.

yes it is, it is either a for profit or non-profit incorporated entity and 
that makes it exactly that, a corporation and one with its own corporate 
veil.

> expected.

Are you kidding. Sure they can...

> They can "donate time", letting some of their staff
> contribute individually.

Sorry - that is the lie of the process. The companies are subsidizing the 
IETF and not their employees.

> They can sponsor travels to meetings.

For what purpose?

> admire it.

So there is value in this effort and they gain because of it... so if their 
process doesnt work those who fail suffer based on not be 'admired by 
others' right?

> They can stop to donate if they're not happy with
> the effect.

Sorry Frank - we disagree.

> If they want something else or more they probably

---

From: "todd glassey" <[email-masked]>
Date: Mon, 30 Apr 2007 11:10:32 -0700

Sorry about the typo...

----- Original Message ----- 
From: "todd glassey" <[email-masked]>
To: <[email-masked]>; "Frank Ellermann" <[email-masked]>
Sent: Thursday, April 12, 2007 1:55 PM
Subject: Re: recourse if our rules are violated?

> Yes but ass

should be 'as'

>  I noted - the cookie is not a good analogy... lets try a car or
> submission