Subject: 2nd response - the usual email disclaimer nonsense, was LTANS WG Last Call

From: "todd glassey" <[email-masked]>
Date: Fri, 22 Jun 2007 09:24:05 -0700

Bill - I was rereading this and wanted to re-respond to you and I apologize to the list for not doing this in one posting, but these comments illustrate the issue pretty well.
  ----- Original Message ----- 
  From: Bill Fardy 
  To: C.T. Aiken ; John Levine 
  Cc: [email-masked] 
  Sent: Thursday, June 21, 2007 5:45 PM
  Subject: Re: the usual email disclaimer nonsense, was LTANS WG Last Call

  i think the issue related by todd is a conflict between a corporate entity's policy and the actions of, presumably, one if its agents.

IMHO - The problem is that the IETF then is a 3rd party beneficiary of a criminal action, the fraudulent conveyance by wire of IP to an unlicensed party, by an unlicensed party. So let me ask - What's the difference here between this and someone like NAPSTER? - nothing I would say.

  i don't see how that is the ietf's problem, or relevant here.

Err, how about because the IETF is representing that it (its)
-------------------------------------------------
    1)    Has a formal policy that 'the relationship between it and the IP Owner's is codified in BCP78/79 Terms... and that anyone who is participating has agreed to these terms and conditions' - which isnt true. There is no proof in any of the filings that anyone read and understood all of BCP78 and BCP79 or that those rules are complete and enforceable.

    2)    Is protected from any damages becuase the responsibilities to disclose those terms and conditions to the the Sponsoree's Sponsor's is the Sponsoree, and this simply isnt true. 

    3)    BCP Rules have been disclosed and agreed upon by those who are legally empowered to act for their Sponsors, something that also isnt true.

There simply is NOTHING in any IETF working documents which codifies "that the Participants in the IETF's processes MUST disclose and continually get their Sponsor's reapproval of the ever changing sets of terms and conditions for their (the sponsoree's) participation in the IETF'", so there is no proof of anyone's authorization to represent their sponsor's here or that the sponsor's ever granted approval to their sponsoree's to legally represent the sponsor's IP interests herein... ANYONE who actually reads all of the contract components will get this too.

    4)    That those BCP78/79 Changes effect works either in progress or ones which work on was previously completed, something also not true. Or that for that matter that the IETF can convey those pre-existing standards to the IETF Trust without the approval of the submitters. Or that the IETF can at its whim change the conveyance rules for materials already conveyed under RFC2026 or earlier rules... also all of which are untrue since there is nothing in those works allowing the IETF to do so AFAIK.

  assuming the ietf policy is clear and publicized, i.e. reasonable notice is given, submitters can accept it or refrain from submitting. 

Again - Let me ask, what is the difference here then in someone submitting a media to the IETF and the IETF's then republishing it when that individual doesnt own it? i.e.  If that party who submitted the filing doesnt own/control it, how then is this model any different than NAPSTER which was in fact shut down by US Courts for US Copyright and IP Rights violations??? I say its not.

What is different here is that there isnt RIAA here kicking people's butt's in US Court. That is the ONLY difference I can see between NAPSTER and the IETF at this point relative to the IETF's IP conveyance and transfer actions therein. Especially in the IETF's republishing the works with an "Any and All Uses" license to its relying parties which totally blows any possible control those who actually own works which someone submits to the IETF would have.

Further - the IETF's model DOES NOT take into account that the person submitting IP to the IETF may in fact not  only not own it but may not be its creator and is essentially just writing a literary work about the technology, which in fact DOESNT transfer that technology into the coffer's of the Standards Development Org we all know and love as the IETF. I.e. the Submitter may have nothing to do with the actual IP Owner, and as such cannot convey anyrights to anything in the technologies IP to the IETF either.

  there is nothing in todd's post that i could take to be a criticism, constructive or otherwise, of the ietf's policy or it's method of giving notice to submitters.

No personal offense meant by this Bill - but this is the Ostrich Mentality that drives me buggy. Putting the IETF's head collectively into the Sand doesnt protect it or the body of the IETF either IMHO.

  it is the submitter's burden to act consistently with their internal corporate policies, whether they use email, snail mail or avian datagrams. though it might be an interesting subject it's outside the scope of this list, imho.

Uh yeah, but as the 3rd party Beneficiary the IETF has liability too, and these are exacerbated since it (the IETF)  is fully aware that the requirements for proper conveyance are not met here. 

And yeah,  while its true that the IETF is trying to protect itself by saying "its the submitter's responsibility", since there is nothing else to constrain  the submitters such that they MUST actually get their Sponsor's approval, this isnt functional either. This is NAPSTER all over again in spades IMHO... 

The issues are simple. If the submitter doesnt own the IP then the IETF's rules dont protect it. Neither did NAPSTER's... Further - the Computer Fraud and Abuse Act as well as the Stored Communications Act allow for civil recourse against the IETF for these damages as far as I can tell as well as those in the DMCA/US Copyright Act.

- Get actual legal advice from your counsel - I am not a lawyer! - 

Todd Glassey
    ----- Original Message ----- 
    From: C.T. Aiken 
    To: John Levine 
    Cc: [email-masked] 
    Sent: Thursday, June 21, 2007 6:26 PM
    Subject: Re: the usual email disclaimer nonsense, was LTANS WG Last Call

    An upfront disclaimer, I'm not a lawyer, just a law student with a great deal of interest in tech. I've been following this exchange with some interest and decided to look into it. I've found a couple situations where email boilerplate has legal significance. The best example that I've come across so far is Angelo, Gordon & Co., L.P. v. Dycom Indus., 2006 U.S. Dist. LEXIS 15784 (S.D.N.Y 2006), where an email boilerplate disclaimer was used as evidence weighing against the finding of a binding contract between the parties.

    You're right about the attorney duty to return mis-sent documents, but there are many other legal situations where email footers can be necessary for different reasons ( i.e. to prevent an attorney-client relationship from being formed over email, statutorily mandated disclaimers for stockbroker promotions, etc.).

    All I can say in this context is that it seems like the email footer boilerplate would have some sort of legal effect in the US, but from the lack of precedent on the matter, its hard to say what and how much effect. 

    Regards,
    C.T. Aiken

    On 21 Jun 2007 21:30:18 -0000, John Levine <[email-masked]> wrote:
    > >That said - Harald - either document that there is precedent in US Law to
    > >set aside the disclaimer statement in the Tobias' email or back off the 
    > >commentary ...
    > 
    > Seems to me it's first incumbent on you to show that disclaimers in
    > e-mail have any effect whatsoever.  Can you show any US case or
    > statute law?
    > 
    > My understanding is that when attorneys are sending each other faxes,
    > they put on this sort of notice because as a matter of professional
    > ethics, they're supposed to return faxes sent to each other in error, 
    > which happens a fair amount due to hitting the wrong speed dialing
    > button.
    > 
    > But despite asking this question all over the place for many years, I
    > have never found any reason to believe that they mean anything when 
    > sent in e-mail, nor that even in a fax that they affect anyone other
    > than another attorney.  I sure don't pay any attention to them.
    > 
    > R's,
    > John
    > 
    > _______________________________________________ 
    > Ipr-wg mailing list
    > [email-masked]
    > https://www1.ietf.org/mailman/listinfo/ipr-wg
    > 

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