Subject: Re: [TLS] [Ietf-honest] Last Call: draft-ietf-tls-extractor (Keying

From: Peter Saint-Andre <[email-masked]>
Date: Tue, 01 Dec 2009 20:06:58 -0700

On 11/30/09 9:09 PM, Richard Stallman wrote:
>     Dan - the IPR notice is a statement of the ownership of the IP
> 
> It is a bad practice to use the term "intellectual property" to talk
> about anything, because that term is harmfully broad.  No matter which
> law is the real topic, confusing it with other laws is not good.
> 
> These issues concern patents and only patents.  (Copyrights and
> trademarks could not raise issues like these.)  So we can avoid
> spreading confusion by speaking of "notices about patents" and
> "ownership of the patents", and avoiding the term "IP".
> 
> It's easy to do, so how about it?

Agreed, the term "intellectual property" is only bound to lead to
muddled thinking.

Peter

-- 
Peter Saint-Andre
https://stpeter.im/

---

From: Marsh Ray <[email-masked]>
Date: Tue, 01 Dec 2009 21:45:33 -0600

> Agreed, the term "intellectual property" is only bound to lead to

Seems to me that, in the context of asking parties to self-declare their
"IP", it's better to error on the side of overly broad terminology. You
want to know what they think they've got more than what they actually
have. Someone somewhere is thinking he has a trademark on the first four
octets of a protocol message and it would be good to get that out on the
table.

But for discussions of any specific situation, or of the topic in
general, you'd normally want to use the most precise term (unless you're
attempting to hide the weaknesses of your argument underneath the muddle).

- Marsh

---

From: Dean Anderson <[email-masked]>
Date: Wed, 2 Dec 2009 18:01:57 -0500 (EST)

> Agreed, the term "intellectual property" is only bound to lead to

One reason for the muddled thinking is that there is no _PROPERTY_ in
any of patents, copyrights, trademarks, or trade secrets.  Property is a
right that time-UNLimited and transferable. Property can be tangible or
intangible.  In contrast, patents and copyrights are time-Limited; Even
though they are transferable, they are not property.  Patents and
copyrights are more like a transferrable lease: A temporary asset, not a
permanent asset. Trademarks are time-unlimited but can't be sold without
the underlying products and services.  Trademarks serve to prevent a
kind of fraud on the purchaser of products and services.  Trade Secrets
are also time-unlimited, but serve to prevent a kind of fraud on
improperly obtaining information from the secret holder.  But if someone
independently discovers the secret, the trade secret holder has no right
to the knowledge.

Embodied in the term 'intellectual property' is an implicit agenda to
make patents and copyrights time-UNLimited.  Its a good term if that's
your agenda. Otherwise, its a bad term.

I kind of agree we need an overly broad term to help with disclosure,
but it should be something other than "intellectual property".  
Suggestions on alternative terms are appreciated.

		--Dean

-- 
Av8 Internet   Prepared to pay a premium for better service?
www.av8.net         faster, more reliable, better service
617 256 5494

---

From: Richard Stallman <[email-masked]>
Date: Wed, 02 Dec 2009 20:22:29 -0500

Seems to me that, in the context of asking parties to self-declare their
    "IP", it's better to error on the side of overly broad terminology.

I think you may not appreciate how different these laws are.  There is
no way copyrights can restrict the use of a normal internet standard.

(Someone might have a copyright on text you want to incorporate into
the text of the standard, but that is a different kind of issue.
Also, the IETF presumably knows who contributed that text, so there
is no need to ask the public "Did any of this text come from you?")

     Someone somewhere is thinking he has a trademark on the first four
    octets of a protocol message

Trademark laws concerns the way products are packaged and advertised.
Since these are not packaging or advertising, I think trademark law
doesn't apply to them.  I am not a lawyer, and it would be interesting
to ask one to make sure.  But I think this is just a misunderstanding.

Trade secret law can't be pertinent, since a draft standard is public
knowledge already.

Basically, only patent law can prohibit use of a standard.

---

From: Marsh Ray <[email-masked]>
Date: Wed, 02 Dec 2009 20:19:19 -0600

Richard Stallman wrote:
> [...]
> [...]

http://www.chillingeffects.org/trademark/notice.cgi?NoticeID=203

> Basically, only patent law can prohibit use of a standard.

You've missed or ignored my point, which is not about actual law, but
about facilitating communication: different terminology suits different
purposes.

The main purpose of having the disclosure discussion in an open
standards effort is to prevent problems later. You want parties to share
everything that they think could be relevant, but more importantly they
have to not go away thinking that there was something that they weren't
obligated to disclose.

It may suit your purposes better for there to be an actual legal
confrontation in which you prevail, but for a standards effort anything
like that would be at best a major headache.

- Marsh

---

From: Dean Anderson <[email-masked]>
Date: Thu, 3 Dec 2009 11:23:54 -0500 (EST)

> no way copyrights can restrict the use of a normal internet standard.

User interface copyrights could have done so. We defeated UI copyrights,
but people can continue to invent new ways of using old laws.  It would
be better to know about such novel claims sooner rather than later

> Trademark laws concerns the way products are packaged and advertised.

It might be possible to trademark an IP address block.  If IP blocks are
hijacked, and used to send spam, the reputation of the rightful owner or
delegated user of the block is harmed in much the same way as false
labeling of products and services.  I can't say whether this is a good
argument, but it appears that people in some quarters are thinking about
it.  

Trademarks could affect a standard if the standard incorporates the
trademark in the text. Sun tried to trademark the phrase "Open Systems"  
once. (The OSF caught the notice and successfully objected).

> Basically, only patent law can prohibit use of a standard.

We hope. But how do we ask (essentiall) if someone is trying to invent
some new way of using these laws (as they did with UI copyrights)?

		--Dean

---

From: Richard Stallman <[email-masked]>
Date: Fri, 04 Dec 2009 00:30:38 -0500

It may suit your purposes better for there to be an actual legal
    confrontation in which you prevail,

What in the world are you talking about?  You seem to be making an
accusation based on a wild leap of imagination.

If I wanted to follow the same practice towards you, I could say,

    It may suit your purposes better to fabricate accusations
    hoping some of them will stick,

But I don't know that is so.  Perhaps you did not realize what an
extrapolation you were making.

So instead of making that accusation, I would like to ask you
to think about whether the intentions I have stated suffice
to explain my actions.

---

From: Richard Stallman <[email-masked]>
Date: Fri, 04 Dec 2009 00:30:47 -0500

trademark in the text.

I don't think so.  You can write about a Ford car and call it that,
without infringing the trademark on Ford.

---

From: Richard Stallman <[email-masked]>
Date: Fri, 04 Dec 2009 00:31:04 -0500

I will send mail to get a copy of that page.

    You've missed or ignored my point, which is not about actual law, but
    about facilitating communication:

Sure, but the actual laws are the context and subject matter for this
communication.

Sure, but there is no need to raise the issue of laws that can't
possibly be relevant.  At the same time, why leave out laws that
aren't in the list that "intellectual property" supposedly refers to?

Using the term "intellectual property" introduces a harmful
misunderstanding into any communication.  It is worth some effort to
choose some other method to achieve the present goal.

We could say, "Please tell us about any private privilege you know of
which could restrict the distribution or use of systems on account of
implementing any part of this specification."  And then we could list
the known laws believed likely to do so.

---

From: Richard Stallman <[email-masked]>
Date: Fri, 04 Dec 2009 00:31:19 -0500

If the IETF wants to ask about laws that might conceivably perhaps be
stretched to impose a restriction on use of a protocol, there is no
reason to suppose those laws must be among the ones that some call
"intellectual property".  So instead of limiting the question with
that term, it should ask about _any_ legal claim.

---

From: Marsh Ray <[email-masked]>
Date: Fri, 04 Dec 2009 00:06:52 -0600

> accusation based on a wild leap of imagination.

Read it again. It's just analysis, and you're excerpting below the
whole-sentence level.

> But I don't know that is so.

It's possible, it _may_ be so, but that's true of lots of things we
choose not to say. What basis it has is the more interesting discussion.

> Perhaps you did not realize what an

I don't think it's so far out.

> to think about whether the intentions I have stated suffice

Listen, I've given these decent hardworking IETF folks way too much to
read today already. Here's what I'll do: I apologize if it sounded to
you like I was accusing you of something that you didn't want to be
accused of. Now we can address the finer points off-list if it's OK with
you.

- Marsh

---

From: Dean Anderson <[email-masked]>
Date: Fri, 4 Dec 2009 12:06:55 -0500 (EST)

> without infringing the trademark on Ford.

If you are actually refering to a Ford, then yes. But if you _called_
your thing a "Ford", then no.  A standard on "Open Systems" might have
run afoul of Sun's trademark, had that term been successfully
trademarked. [Sun actually wasn't successful, so I'm going to use this
as a hypothetical example assuming they were successful.] A lot of
things are known to be trademarked and refer to known products.  But a
lot aren't so obvious.

Going back to the "Open Systems" example, if Sun hypothetically submits
a standard naming something "Open Systems"; and we didn't notice the
trademark; we approve the standard;  later Sun comes around to the
Standard users/implementers and says they are the only ones who can
implement/use the standard using that name, and show the trademark
documentation.  Then it would seem that the IETF has endorsed Sun, and
in anycase everyone else is screwed.

We would want a declaration that they don't have any trademarks,
copyrights, patents, or trade secrets in the document.  You are quite
correct that trade secrets aren't secret once they are put in a public
document such as a standards draft. However, in each of the patent
non-disclosure cases, the authors subsequently said they had secrets
they were trying to keep.  Well, if we make authors declare they have no
trade secrets relating to the draft, we can more easily catch them in
the lie.

		--Dean

---

From: Richard Stallman <[email-masked]>
Date: Sat, 05 Dec 2009 01:50:18 -0500

You suggested the hypothetical idea that a trademark on a magic
sequence of bytes could enable someone to interfere with the use of a
standard, and referred us to this page.

That page concerns commercial labelling in the usual way.  I don't
think it relates to this issue.

---

From: Richard Stallman <[email-masked]>
Date: Sat, 05 Dec 2009 19:31:13 -0500

If you are actually refering to a Ford, then yes. But if you _called_
    your thing a "Ford", then no.

That's true, but it isn't the issue.  The point is, Ford's trademark
does not restrict using the four-letter combination "Ford" in general.

      A standard on "Open Systems" might have
    run afoul of Sun's trademark, had that term been successfully
    trademarked.

Remember that we're talking about the idea that someone could claim a
trademark on a sequence of bytes used as a magic code in a standard.
naming a standard after someone's product is a different issue.

You're talking about a different case, not the one we were talking
about thus far.

But ok, let's look at your case.  All that would happen is that we
would have to change the name of the standard.  That shouldn't break
any implementations.