Subject: RFC5378 alternate procedure (was: Re: IPR Questions Raised by Sam Hartman at the IETF 73 Plenary)

From: John C Klensin <[email-masked]>
Date: Mon, 15 Dec 2008 15:27:47 -0500

Hi.

In an attempt to get this discussion unstuck and to provide a
way forward for those of us whose reading of 5378 (or advice
from counsel) have convinced us that we cannot post most
documents that contain older text written by others under the
new rules, I've posted a new I-D,
draft-klensin-rfc5378var-00.txt.

It would be very helpful if people would actually read the draft
before commenting on it -- it isn't very long, and the key
section that contains the new procedure (Section 4) is under 40
lines of text -- but the intent is to make sure we don't get
stuck or that we get unstuck as quickly as possible.

While the draft reviews the history and context of the
situation, the elevator summary of the proposal is that, if an
author/ contributor is working on a document that contains old
text and concludes that he or she cannot reasonably comply with
the provisions of 5378, then it is permitted to post the
document with IPR rules that are strictly in conformance with
RFC 3978.  

In deference to the ever-patient and underappreciated
maintainers of tools, I note that this would require no changes
other than disabling (or later un-enabling) the 5378-only check
that I assume the Secretariat is going to turn on tomorrow.

A different possibility would be to create an exception
procedure in which such an author would have to request an
exemption from the IESG or the Trustees (or for the IESG to
conclude that the variance procedure of RFC 2026 could be used
for these cases).   My personal opinion is that those approaches
would add to the workload of people who are already too busy and
further bog us down.

This draft is not intended as a long term solution.   Long-term,
I think we will need to revise 5378 to make explicit provision
for new documents that contain older material for which having
the IETF Trust obtain additional rights is not feasible.  The
draft discusses that situation further.   But I don't believe
that we should even attempt to make that sort of change quickly,
especially since I am very sensitive to Simon's comment from
earlier today that I would generalize as "every time a new issue
comes up, we respond by making things more complex and harder to
understand and work with".

So, in the short term, I hope this document will either provide
a basis for the new BCP that Russ indicated that the Trustees
need or at least can focus enough discussion that someone else
can generate such a BCP draft.

     john

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From: Cullen Jennings <[email-masked]>
Date: Mon, 15 Dec 2008 18:31:02 -0700

John,

I like the draft. It looks like a fairly pragmatic approach to solve  
the problem.

I believe it would allow us to continue work where the text had been  
provided under the 3978 rules. Without something like this, I don't  
know how I can submit new versions of  the WG internet drafts that I  
am an co-author of. I can not even figure out who are all the people  
that contributed significant text to the WG drafts much less imagine  
how I will get permission from all of them to submit the draft under  
the the 5378 rules.

Cullen

---

From: Simon Josefsson <[email-masked]>
Date: Tue, 16 Dec 2008 15:03:00 +0100

> draft-klensin-rfc5378var-00.txt.

Thanks for trying to do something about this problem.  I've read the -01
document.  It describes a solution that would be very far from a good
copyright situation -- even further away than RFC 5378 alone, given that
RFC 3978 is seriously flawed in some ways.  However, I think your draft
is likely to be one of few approaches that can gain consensus quickly
enough to be an effective solution to the problem you describe.  It
could be a stop-gap measure for the next year or so, until better
copyright policies can be developed.

There is one detail I disagree with rather strongly.  Section 7 suggests
that the Trustees should prepare a replacement for BCP 78.  First, I
don't think the Trustees have the necessary competences or resources to
take on that huge effort.  Further, there is a conflict of interest
here: any policies written by the Trustees is likely to just give more
rights to the IETF Trust That is the problem that caused this situation
to begin with.  I don't believe the output would be representative of
the needs of the wider IETF community.  Instead, I suggest there should
be a wider IETF effort to document the copyright policy that will serve
the IETF better...

...and hopefully such an effort can review some of the bigger pictures
that were declared out of scope in the IPR WG.  One consideration would
then be:

* Whether the two-phase construct with an IETF Trust is a good idea.
  One alternative is to require contributors to release their work under
  a liberal license that allows everyone to copy and modify it.  This
  would avoid the liability issues that are inherent in the IETF Trust
  construct.  This would save money for the IETF.  The license would be
  significantly less complex.

  I agree there are some situations were contributors doesn't find this
  model acceptable.  Just like there are exceptions in the current
  license, there could be a exception in the new license to allow
  exceptions for non-modifiable content.  Compare how the GNU FDL
  license restricts certain parts of a manual to be modified freely.

/Simon

---

From: Thomas Narten <[email-masked]>
Date: Tue, 16 Dec 2008 13:28:36 -0500

> how I will get permission from all of them to submit the draft under  

Question. It is my understanding/assumption that the ONLY parties that
one must clearance from are the actual listed authors of the
document. Specifically, one does NOT need to go back to everyone who
might have contributed text. That, at least, is how we seem to have
been operating for a long time, i.e, it is only the listed authors
that matter.
 
Having said that, things might be murkier than that if one looks at an
acknowledgment section to find everyone who might have contributed
"significant" text.

I.e., when incorporating comments from individuals in WGs, those
contributions are covered by the NOTE WELL. Does the NOTE WELL also
need to be extended to cover the expanded rights case?  Please say no!

Thomas

---

From: Simon Josefsson <[email-masked]>
Date: Tue, 16 Dec 2008 21:38:11 +0100

> been operating for a long time, i.e, it is only the listed authors

I don't believe that is correct in this context -- I believe what
matters here is getting the necessary copyright from each respective
copyright holder (for work large enough to be copyrightable).  The IETF
policies has been (and remain) that the copyright remains with the
contributor (or possibly his/her employer for work-for-profit
contributions).  Since old contributions were only given to the IETF
under the RFC 3978 (or earlier) license, they need to grant the rights
in RFC 5378 too, before it can be used under the RFC 5378 rules.

Re-reading the initial answer to Sam's question, it uses the word
"contributor" which is defined in BCP 78, and is not the same as
"author".  That is consistent with my view, however it would be useful
to get more thoughts on what the answer is here.

Btw, the FSF uses a limit of ten lines of text/code as a rough limit for
when a copyright assignment is necessary.  The FSF is probably
conservative here though.  I suppose a similar limit is applicable when
you need to contact the original contributor.

> acknowledgment section to find everyone who might have contributed

Indeed.

> need to be extended to cover the expanded rights case?  Please say no!

The NOTE WELL refers to BCP 78 so it is has already been extended to
cover the new expanded rights, hasn't it?

/Simon

---

From: Sam Hartman <[email-masked]>
Date: Tue, 16 Dec 2008 16:18:49 -0500

>>>>> "Simon" == Simon Josefsson <[email-masked]> writes:

    >>  Question. It is my understanding/assumption that the ONLY
    >> parties that one must clearance from are the actual listed
    >> authors of the document. Specifically, one does NOT need to go
    >> back to everyone who might have contributed text. That, at
    >> least, is how we seem to have been operating for a long time,
    >> i.e, it is only the listed authors that matter.

    Simon> I don't believe that is correct in this context -- I
    Simon> believe what matters here is getting the necessary
    Simon> copyright from each respective copyright holder (for work
    Simon> large enough to be copyrightable).  The IETF policies has
    Simon> been (and remain) that the copyright remains with the
    Simon> contributor (or possibly his/her 

I agree completely.

I'll note that it may well be reasonable to assume that small text is
fair use.

---

From: Julian Reschke <[email-masked]>
Date: Wed, 17 Dec 2008 14:01:07 +0100

Simon Josefsson wrote:
> ...
> ...

As of today, <http://www.ietf.org/maillist.html> states:

> All IETF Contributions are subject to the rules of RFC 3978 (updated by RFC 4748) and RFC 3979(updated by RFC 4879).
> 
> Statements made outside of an IETF session, mailing list or other function, that are clearly not intended to be input to an IETF activity, group or function, are not IETF Contributions in the context of this notice.
> 
> Please consult RFC 3978 (and RFC 4748) for details. 

So there's no mention of BCP 78, nor of the new RFC.

And even if there was, I would have thought that a change of the IPR 
rules would require a notification to be sent to all official mailing 
lists -- otherwise how would the average IETF contributor ever know 
about this change???

BR, Julian

---

From: Simon Josefsson <[email-masked]>
Date: Wed, 17 Dec 2008 16:16:35 +0100

Webmaster,

Julian noticed that this page contains the old NOTE WELL text.
According to:

http://www.ietf.org/mail-archive/web/ietf-announce/current/msg05509.html

The new NOTE WELL text have been updated.

> So there's no mention of BCP 78, nor of the new RFC.

Sigh.

> lists -- otherwise how would the average IETF contributor ever know

By reading ietf-announce and the notification of RFC 5378, I suppose.

However, I don't think that meets the legal requirement that every
participant should have "reasonable" been exposed to the text.  Posting
the new text to every list reduces the IETF's liabilities here, when
someone argues they have not seen the NOTE WELL text.

I think it is clear that participants at IETF 73 have not reasonable
seen the new NOTE WELL since that text wasn't (as far as I know)
available at that time.  In fact, I still do not know where the new NOTE
WELL is available from...  In fact, searching for "note well rfc 5378"
doesn't result in anything useful.

/Simon

---

From: Ray Pelletier <[email-masked]>
Date: Wed, 17 Dec 2008 11:19:44 -0500

> The new NOTE WELL text have been updated.

It will be updated today.

Ray

>>> All IETF Contributions are subject to the rules of RFC 3978  
>>> (updated by RFC 4748) and RFC 3979(updated by RFC 4879).
>>>
>>> Statements made outside of an IETF session, mailing list or other  
>>> function, that are clearly not intended to be input to an IETF  
>>> activity, group or function, are not IETF Contributions in the  
>>> context of this notice.
>>>

---

From: Julian Reschke <[email-masked]>
Date: Wed, 17 Dec 2008 19:51:44 +0100

Indeed.

At this point, I think, people on IETF mailing lists need to be informed 
about the IPR change as well. I don't believe everybody is following 
this discussion.

BR, Julian