Subject: Rights in early RFCs

From: "John R Levine" <[email-masked]>
Date: 14 Jun 2019 17:45:17 -0400

We recently got an inquiry about RFC 768.  Jon Postel published it in 1980 
without a copyright notice, it's never been updated, and since it defines 
UDP, it's implemented in billions of devices around the world.

If someone wanted to reuse it, I can only guess where to ask.  Since Jon 
wrote it, perhaps it'd be his heirs, or perhaps it'd be USC since that's 
who he worked for, or perhaps it'd be nobody since the government funded 
him and US government works are P.D.

Has anyone ever tried to work out who owns what for the early RFCs?  I 
think I understand what the rules are from RFC 1602 onward, but there's a 
bunch of important ones earlier than that.

Regards,
John Levine, [email-masked], Taughannock Networks, Trumansburg NY
Please consider the environment before reading this e-mail. https://jl.ly

PS: In case it's not clear, I'm not asking what anyone thinks the rules 
should be or should have been, I'm asking to what extent we know what they 
actually are.

---

From: John C Klensin <[email-masked]>
Date: Fri, 14 Jun 2019 19:06:17 -0400

--On Friday, June 14, 2019 17:45 -0400 John R Levine
<[email-masked]> wrote:

> We recently got an inquiry about RFC 768.  Jon Postel
> published it in 1980 without a copyright notice, it's never
> been updated, and since it defines UDP, it's implemented in
> billions of devices around the world.
> 
> If someone wanted to reuse it, I can only guess where to ask.
> Since Jon wrote it, perhaps it'd be his heirs, or perhaps it'd
> be USC since that's who he worked for, or perhaps it'd be
> nobody since the government funded him and US government works
> are P.D.
> 
> Has anyone ever tried to work out who owns what for the early
> RFCs?  I think I understand what the rules are from RFC 1602
> onward, but there's a bunch of important ones earlier than
> that.

Yes.  Jon did.  More than once and under pressure from people
with whom he was usually fairly impatient.  I think it is a fair
summary of his personal preference -- about the series, not
[jist] things of which he was the author would be pretty close
to "just use it, ideally with credit as appropriate".  The bad
news was (and is) that things get complicated as soon as either
IPR lawyers or other people interested in talking about
"ownership" or either text or ideas -or- people who are inclined
to take the idea of others and try to pass them off as their own
get involved.   

Your notion of "US government works" didn't help either because
very few of the early authors were actually government employees
but, instead, were employees of various universities or [other[
government contractors.  A number of those organizations
successfully argued that they could, and would, do a better job
of technology transfer if they had ownership rights in whatever
they were producing than if the technology (and documents) were
free for anyone to pick up and use because the latter
organizations would have little incentive to commercial
technology for which they had no special rights.   (The
contemporary argument by various pharma companies that they
should be able to take federal funds to develop drugs that they
then patent is not much different from that old technology
transfer one.)  In addition, [D]ARPA, at least at that time, did
not do its own contracting and I have some reason to believe
(and think we discovered during those discussions) that the
details of the arrangements different contractor organizations
had with different contract management organizations differed,
and may have differed quite a bit.

One of the outcomes of the above was the general rule that
persisted into IETF Trust policy, i.e., that anyone can
reproduce RFC text as long as it remains intact and unchanged --
issues arise only if someone wants to make excerpts or derived
works.

There were several later rounds of conversations about the
general topic on which Scott Bradber would be m8ch more expert
than I am, but I'd be surprised if the answer from him would be
significantly different from the above.

You didn't identify you "we" was in your question but, if the
answer is, e.g., the IETF Trust, good luck and this is why we
pay you folks the big bucks.

   best,
     john

---

From: Scott Bradner <[email-masked]>
Date: Fri, 14 Jun 2019 19:14:05 -0400

> On Jun 14, 2019, at 7:06 PM, John C Klensin <[email-masked]> wrote:
> 

It is not

but I do have a question for John Levine - what is the context of your question?

republish? produce a revision? ???

Scott

---

From: "Paul Hoffman" <[email-masked]>
Date: Fri, 14 Jun 2019 16:43:42 -0700

> republish? produce a revision? ???

Oddly, I can answer that one. Some people quite outside the IETF want to 
publish a spec for how to do $foo over the Internet. Their spec quotes 
small parts of various RFCs to make the requirements clear for the 
vendors who will implement $foo because those vendors do not normally 
use IETF standards. They were unsuccessful in finding how to get 
permission to quote from RFCs, and by circuitous route got to me. I 
passed them along to the IETF Trust, and that's where John's message 
originates. (Side-note: they didn't know who Jon Postel was or how to 
reach him to ask about getting the right to quote RFC 768. I had to 
break that news to them...)

--Paul Hoffman

---

From: Brian E Carpenter <[email-masked]>
Date: Sat, 15 Jun 2019 11:46:40 +1200

John,

When we set up the IETF Trust, we did what we could to get all the rights. We discussed this actively in late 2006, and I found a list of test cases that includes RFC 791-793, but not RFC 768 for some reason. 

With a little research:
ISI assigned all its rights to ISOC on May 2, 2007:
https://iaoc.ietf.org/documents/Confirmatory_License_Pre_1998_Executed.pdf
https://iaoc.ietf.org/documents/Confirmatory_Addendum_Post_1998_Executed.pdf

ISOC assigned all its rights in RFCs to the Trust in 2006 (April or thereabouts). I hope this was updated to cover the rights obtained from ISI, but I don't know about that since I left the Trust in March 2007. If it was overlooked, the Trust will need to fix it.

However, this certainly leaves open the question of the rights of the *authors* (or their estates) since there were no formalities in place, apart from whatever was hidden in employment contracts and USG-funded contracts. A few RFC authors signed a "Contributor Non-Exclusive Document License" to cover the pre-RFC5378 problem; I believe Steve Crocker signed one for RFC1, for example. But the Trust never followed up on this for the important early RFCs.

Regards
   Brian Carpenter

---

From: "John R Levine" <[email-masked]>
Date: 14 Jun 2019 20:36:22 -0400

> pay you folks the big bucks.

Yeah, we're trying to see if we can come up with some guidance for other 
organizations that want to use RFCs, apropos of a request from a SDO in a 
completely different industry that uses IP protocols in some internal
protocols.

I'm sure you can see why "Jon told me 20 years ago that it was OK" is not 
going to impress their lawyers, but if that's all we've got, that's all 
we've got.

Regards,

---

From: Joe Touch <[email-masked]>
Date: Fri, 14 Jun 2019 17:38:07 -0700

FWIW, IANAL but the agreements below affect only the editing and publication functions of ISI during the period indicated, which (AFAICT) was after Jon died.

I.e, this refers to the RFC Editor contributions. It does not appear (again, IANAL) to affect either previous works or even RFC work done by others during that period (granted that the ISOC started adding copyright statements to RFCs somewhere in that time too).

Joe

> On Jun 14, 2019, at 4:46 PM, Brian E Carpenter <[email-masked]> wrote:
> 
> John,
>

---

From: Brian E Carpenter <[email-masked]>
Date: Sat, 15 Jun 2019 14:22:33 +1200

> FWIW, IANAL but the agreements below affect only the editing and publication functions of ISI during the period indicated, which (AFAICT) was after Jon died.

No, pre-October 1998 is specifically included in the first one. The two are slightly different for reasons that various lawyers no doubt explained at the time.
 
> I.e, this refers to the RFC Editor contributions. It does not appear (again, IANAL) to affect either previous works or even RFC work done by others during that period (granted that the ISOC started…

It applies to all rights that ISI *might have had*, which is all they could offer. It doesn't apply to any rights that third parties might have had, obviously. So it is the maximum that ISI could offer, which is all we could ask for. (IANAL, but I was in the discussion loop with the Trust's lawyer.)

That's why the "Contributor Non-Exclusive Document License" was invented, and why it's unfortunate that it doesn't seem to have been followed up for the important early RFCs. The blank form used to be available on the Trust web site, but no longer is (https://trustee.ietf.org/assets.html). I signed it, which effectively means that all my RFCs are under RFC5378 conditions. Either the Trust or the IETF LLC archives should contain such licenses as were signed.

There's the FAQ, of course: https://trustee.ietf.org/reproduction-rfcs-faq.html

   Brian

---

From: Joe Touch <[email-masked]>
Date: Fri, 14 Jun 2019 20:01:27 -0700

> On Jun 14, 2019, at 7:22 PM, Brian E Carpenter <[email-masked]> wrote:
> 

Agreed; I had overlooked that.

> It applies to all rights that ISI *might have had*, which is all they could offer.

It appears to apply only to products of the RFC Editor contract. E.g., RFC1700 and the like - reports of the RFC Editor. It would not necessarily apply to other RFCs - just because something was an RFC doesn’t mean it was performed under that contract. I wrote RFCs at ISI during that time under other contracts that were published in this period, e.g, RFC 1810, that would not be covered by this transfer.

> It doesn't apply to any rights that third parties might have had, obviously. So it is the maximum that ISI could offer, which is all we could ask for. (IANAL, but I was in the discussion loop with the Trust's lawyer.)

I’m not sure what it actually would cover - as you note, it transfers USC’s rights (ISI isn’t a legal entity). But contracts never established either USC or the government as copyright holders - at USC, the author retains their own copyright individually. It was never asserted as transferred to the USC.  The most our government contracts ever required was “free use” by the government, e.g,, if the gov paid once, they didn’t have to pay again.

So it *might* cover deliverables in the RFC Editor contract - e.g., the reports above. At best, IMO.

> That's why the "Contributor Non-Exclusive Document License" was invented, and why it's unfortunate that it doesn't seem to have been followed up for the important early RFCs.

When it was established, authors were contacted and asked to participate. Not everyone did, though, and, as you note, for those who passed, you’d probably have to track down heirs.

Joe

---

From: Kathleen Moriarty <[email-masked]>
Date: Sat, 15 Jun 2019 06:48:20 -0400

I'll add to Paul's description.  Within the request, for one document, they
wish to make a profile.  Normally, that's fine.  Except that they want to
change keywords in directions that they should not be changed in a
profile.  For instance changing a MUST to a SHOULD or even a MUST NOT.
This obviously results in the profile not being in compliance with the
referenced document and therefore not interoperable.

I went through this with another SDO and was able to work through it.  I am
not finding the documentation to support the bounds of profiles though to
determine if that sites with the response from the Trust or elsewhere.
I'll keep looking, but if someone has the answer, that would be very
helpful.

Thank you,
Kathleen

-- 

Best regards,
Kathleen

---

From: Miles Fidelman <[email-masked]>
Date: Sat, 15 Jun 2019 12:19:38 -0400

On 6/14/19 7:43 PM, Paul Hoffman wrote:

> Oddly, I can answer that one. Some people quite outside the IETF want 
> to publish a spec for how to do $foo over the Internet. Their spec 
> quotes small parts of various RFCs to make the requirements clear for 
> the vendors who will implement $foo because those vendors do not 
> normally use IETF standards. They were unsuccessful in finding how to 
> get permission to quote from RFCs, and by circuitous route got to me. 
> I passed them along to the IETF Trust, and that's where John's message 
That would seem to fall under fair use.  How could quoting a spec NOT be 
considered fair use.

Miles Fidelman

-- 
In theory, there is no difference between theory and practice.
In practice, there is.  .... Yogi Berra

Theory is when you know everything but nothing works.
Practice is when everything works but no one knows why.
In our lab, theory and practice are combined:
nothing works and no one knows why.  ... unknown

---

From: "John Levine" <[email-masked]>
Date: 15 Jun 2019 15:08:33 -0400

In article <[email-masked]> you write:
>> normally use IETF standards. ...

>That would seem to fall under fair use.  How could quoting a spec NOT be 

A) Fair use is what a US court says it is.  The law provides factors
for courts to weigh but no bright line rules.  Anyone who says that a
particular usage definitely is or isn't fair use without a court
decision to back it up doesn't understand the law.

B) Court decisions have been all over the place.  In one extreme case,
use of a single sentence was found to be infringing.  (It was from a
medical text, quoted in a cigarette ad.)

C) Copyright litigation is fantastically expensive, and in the U.S.,
even if you win, you usually still have to pay your own costs.  Don't
go there.

D) Fair use only applies in the U.S.  Some other countries have Fair
Dealing, but the rules are different, so if something is fair use in
the US, that doesn't mean it's fair dealing elsewhere.  Most other
countries also have moral rights which further constrain what you
can quote without permission.

It's not unreasonable for an SDO to want clear permission about what
it uses.

R's,
John

---

From: Keith Moore <[email-masked]>
Date: Sat, 15 Jun 2019 16:32:21 -0400

On 6/15/19 6:48 AM, Kathleen Moriarty wrote:

> I'll add to Paul's description.  Within the request, for one document, 
> they wish to make a profile.  Normally, that's fine.  Except that they 
> want to change keywords in directions that they should not be changed 
> in a profile.  For instance changing a MUST to a SHOULD or even a MUST 
> NOT.  This obviously results in the profile not being in compliance 
> with the referenced document and therefore not interoperable.

Why would this community want to grant permission to do that, even if it 
were in our power to do so?

Keith

---

From: John C Klensin <[email-masked]>
Date: Sat, 15 Jun 2019 16:52:49 -0400

--On Saturday, June 15, 2019 16:32 -0400 Keith Moore
<[email-masked]> wrote:

>> I'll add to Paul's description.  Within the request, for one
>> document,  they wish to make a profile.  Normally, that's
>> fine.  Except that they  want to change keywords in
>> directions that they should not be changed  in a profile. 
>> For instance changing a MUST to a SHOULD or even a MUST 
>> NOT.  This obviously results in the profile not being in
>> compliance  with the referenced document and therefore not
>> interoperable.
> 
> Why would this community want to grant permission to do that,
> even if it were in our power to do so?

Keith (and others),

I've supplied a good deal of historical information to John
Levine off-list, but your question goes to what I think is the
key issue.  Unless we, for some reason I can't imagine, want to
encourage the creation of confusion about what our standards do
or do not say or require, we shouldn't grant this permission or
spend energy exploring ways to figure out what can or cannot
reasonably be granted and/or what is in the IETF Trust's power
to grant.   Instead, we should encourage whomever this is to
incorporate our standard (or selected parts of it) by reference
(something we could not prevent if we wanted to) and then to
identify what they want to make different.

	"Our protocol is just like the IETF's User Datagram
	Protocol [RFC768] except that where the FizzleFraz case
	is mentioned the implementer MUST NOT do Garglezork even
	if the IETF requires doing so." 

Is a perfectly good style of statement.  We couldn't prevent it
if we wanted to (although some effort to explain to them why it
would be a bad idea might be in order depending on what they are
actually trying to do and why).  And it creates absolutely no
confusion about what the IETF Protocol is.  

It seems to me that trying to give them permission to make
partial copies in support of developing a forked or conflicting
standard is not in the interest of either the IETF community or
the RFC Series and that, if the IETF Trust is exploring doing
so, they are in danger of losing their way about their
obligations to the community.

best,
   john

---

From: Keith Moore <[email-masked]>
Date: Sat, 15 Jun 2019 17:06:34 -0400

> obligations to the community.

I'm sort of thinking that the response should be:  The mission of IETF 
and affiliated organizations is to promote the Internet and 
interoperability of applications using the Internet.   If you want to 
promote specifications that break interoperability with our protocols, 
you're on your own.   Do your own research, hire your own lawyers to 
advise you, seek out whatever permissions from the original authors or 
their estates that you can get.  We're not going to help you, and we're 
not going to promise to not sue you if we find grounds to do so.

(more diplomatically than that, I suppose, but I find it easier to get 
the clear statement first then to recast it in diplomatic language if 
it's worth doing so)

And I get the idea of minimizing confusion between what IETF says and 
what some other organization says, but it might still be bad precedent 
to encourage that practice.

Say, for instance, some organization decided to promote a version of TLS 
that was exactly like IETF TLS except that it leaked keying material via 
a side channel.  We should do everything in our power to discourage 
that, and punish those promoting such practices, via any legal means 
available to us.

Keith

---

From: "Salz, Rich" <[email-masked]>
Date: Sun, 16 Jun 2019 00:44:31 +0000

considered fair use.
  
Because, according to US copyright law (which is the prevailing law), there is a limit as to how much you can quote.

---

From: "Joel M. Halpern" <[email-masked]>
Date: Sun, 16 Jun 2019 14:26:03 +0900

I think there are two separate issues.

First, the way they structured their profile, they were making verbatim 
quotes, and then putting there own text around taht.  As far as I can 
tell, in terms of our copyright rules, we have said they have the right 
to do that.  I believe the trust will have to tell them that they have 
those rights.

The fact that the profile they are building around those quotes does not 
match our intentions is a different problem.  It is not, as far as I can 
tell, a problem the trust can deal with.  The trust can call IESG 
attention to the activity, in hopes that via discussion the right things 
happen.  But as long as what they quote is verbatim, and they include 
our boilerplate where required, we do not have the right to decide 
whether we like or dislike the usage.

Put differently, what I have seen looks a lot like the case John 
describes below as a perfectly valid usage that we can't stop.  But the 
IESG can certainly talk to them about the interoperability issues.

Yours,
Joel

---

From: Masataka Ohta <[email-masked]>
Date: Sun, 16 Jun 2019 13:32:09 +0900

> can quote without permission.

Free quotation is internationally permitted by Berne convention:

https://www.wipo.int/treaties/en/text.jsp?file_id=283698
Article 10
Certain Free Uses of Works:
1. Quotations;
(1) It shall be permissible to make quotations from a work which has
already been lawfully made available to the public, provided that
their making is compatible with fair practice, and their extent does
not exceed that justified by the purpose, including quotations from
newspaper articles and periodicals in the form of press summaries.

						Masataka Ohta

---

From: Masataka Ohta <[email-masked]>
Date: Sun, 16 Jun 2019 13:45:59 +0900

Salz, Rich wrote:

> Because, according to US copyright law (which is the prevailing law),

Governing law of publication is law of a country where documents
quoting rfcs are published.

							Masataka Ohta

---

From: Michael StJohns <[email-masked]>
Date: Sun, 16 Jun 2019 01:53:51 -0400

> It applies to all rights that ISI *might have had*, which is all they could offer. It doesn't apply to any rights that third parties might have had, obviously. So it is the maximum that ISI could o…
FWIW, RFC768 would have been considered a work-for-hire by Jon on behalf 
of ISI, and ISI could then grant the rights wherever they wanted that 
wasn't inconsistent with the contract between ISI and the US Government 
that covered Jon's work.

In any event, that contract would have been subject to the FARs (Federal 
Acquisition regulations) and see 
https://en.wikipedia.org/wiki/Copyright_status_of_works_by_the_federal_government_of_the_United_States#Works_produced_by_contractors 
for a fairly decent explanation.   From what I remember of my DDNPMO 
days, I don't believe any of the support contracts for ARPANET, Milnet 
or the NIC included the Alternate IV clause.

You *could* ask the various US agencies for a grant of rights for any of 
the RFCs that you don't have a clear license for.  Getting  US DOD, NSF, 
NASA and DOE sign offs should be sufficient to clear most of the earlier 
documents as those were the primary agencies funding work that became 
RFCs. As an alternate approach, NTIA should be able to sign off for the 
entire US government.

Note that there are a few RFCs that were authored by US Government 
employees - those are public domain and no license is necessary.

Mike

---

From: Keith Moore <[email-masked]>
Date: Sun, 16 Jun 2019 04:18:15 -0400

On 6/16/19 1:26 AM, Joel M. Halpern wrote:

> First, the way they structured their profile, they were making 
> verbatim quotes, and then putting there own text around taht.  As far 
> as I can tell, in terms of our copyright rules, we have said they have 
> the right to do that.  I believe the trust will have to tell them that 
> they have those rights.

I'm not sure that's actually true.   What's fairly clear (for various 
reasons) is that they are free to reproduce the document in its 
entirety.   It's not clear (to me at least) that they are free to 
produce derivative works.   As for quoting, they may have some right to 
do that in the US under fair use doctrine, but only for specific 
purposes and within certain boundaries.   And the boundaries of fair use 
are for the courts to decide, not the trust.

Keith

---

From: "Joel M. Halpern" <[email-masked]>
Date: Sun, 16 Jun 2019 17:24:47 +0900

The Trust Legal Provisions give everyone the right to "to copy, publish, 
display and distribute unmodified portions of IETF Contributions and 
IETF Documents".  That seems pretty clear to me.  They have to attribute 
it properly.  And they have to keep our legends.  (Which they may not 
have gotten quite right, and is one of the things the trust will need to 
make sure they do get right.)

Given that the wording says "portions", I do not see that we can 
complain about their copying several portions.

If the community wants to change that, then it needs to say so.  As far 
as I know, these have been the rules for quite some time.

Yours,
Joel

---

From: Keith Moore <[email-masked]>
Date: Sun, 16 Jun 2019 04:50:06 -0400

On 6/16/19 4:24 AM, Joel M. Halpern wrote:

> The Trust Legal Provisions give everyone the right to "to copy, 
> publish, display and distribute unmodified portions of IETF 
> Contributions and IETF Documents".  That seems pretty clear to me.  
> They have to attribute it properly.  And they have to keep our 
> legends.  (Which they may not have gotten quite right, and is one of 
> the things the trust will need to make sure they do get right.)
>

I believe there's still a distinction between copying/publishing/etc. 
"portions", and creating a derivative work.   Changing the meaning of 
the quoted text is arguably producing a derivative work.

Keith

---

From: John C Klensin <[email-masked]>
Date: Sun, 16 Jun 2019 09:26:43 -0400

--On Sunday, 16 June, 2019 13:32 +0900 Masataka Ohta
<[email-masked]> wrote:

>...
>...

So, to gain insight into the status of a document written by an
author living and working in the US, and published by a US
institution that was doing its work under contracts that flowed
from the US governmnet, we are citing a treaty which the US did
not ratify/join until 1988 in support of what can be done with a
document published in 1980, a document whose copyright has
almost certainly expired?

Colleagues, can an we please stop the amateur lawyering?  It is
not, at least IMO, helpful, nor does it address the question
that, AFAICT, John Levine was asking when the thread started.

    john

---

From: Joe Touch <[email-masked]>
Date: Sun, 16 Jun 2019 08:19:40 -0700

> On Jun 15, 2019, at 10:53 PM, Michael StJohns <[email-masked]> wrote:
> 
> 
> FWIW, RFC768 would have been considered a work-for-hire by Jon on behalf of ISI, and ISI could then grant the rights wherever they wanted that wasn't inconsistent with the contract between ISI and the US Government that covered Jon's work.

That may - or may not - be true for Jon, but he was staff at the time.

It’s useful to note that this would not affect *faculty* at USC (other faculty elsewhere might have the same privileges); at USC, they have always been given rights to their research, except only when it is specifically identified as a product of a contract, in specific exception to “work for hire” copyright. There are also other workarounds - e.g., hiring someone to write a book is work for hire; hiring them to investigate a topic and submit periodic progress reports - and having them write the book based on that research but on their own time - is not. And those two cases aren’t hypothetical; IANAL but they are based on direct experience at USC with the appropriate experts, FWIW.

Joe

---

From: Masataka Ohta <[email-masked]>
Date: Mon, 17 Jun 2019 00:23:42 +0900

> document published in 1980,

Surely, the permission of the treaty on free quoting is applicable for
publication in US today, even though quoted text was written before
the treaty was ratified by US, though, anyway, in US,fair use has
been applicable.

> a document whose copyright has almost certainly expired?

What? Copyright with a natural person author expires at least 50
(75 in so many countries) years after death of the author.

> Colleagues, can an we please stop the amateur lawyering?

As a person who is paid partially because teaching copyright
for students, I fully agree with you.

However, a problem of most professional lawyers in some country
is that they do not have much knowledge on copyright act in
other countries.

But, they should have some, though often amateur level, knowledge
on Berne convention.

> It is

That some other SDO which originally asked the question is full of
amateur on legal issues is, IMHO, not a problem of IETF.

						Masataka Ohta

---

From: "John Levine" <[email-masked]>
Date: 16 Jun 2019 12:44:57 -0400

>that, AFAICT, John Levine was asking when the thread started.

Yes, please.  I'm trying to figure out what rights we have to what
documents and what rights we might be able to license if we believe it
is in the IETF's interests to do so.

For the document in question, RFC 768, it appears that the Trust has
and can have no rights at all, because it is in the public domain
according to the copyright law in effect in the US when it was
published in 1980.

R's,
John

---

From: Michael StJohns <[email-masked]>
Date: Sun, 16 Jun 2019 14:00:15 -0400

On 6/16/2019 11:19 AM, Joe Touch wrote:
> It’s useful to note that this would not affect *faculty* at USC (other faculty elsewhere might have the same privileges); at USC, they have always been given rights to their research, except only when it is specifically identified as a product of a contract, in specific exception to “work for hire” copyright.

Not exactly.  If Jon had published RFC768 instead in a public journal or 
as part of a symposium submission etc, AND asserted copyright AND 
acknowledged the funding, he (or ISI depending on Jon's contract with 
ISI) would have owned the copyright - and that's the general way Faculty 
would get things out.   For example compare and contrast the TCP and IP 
RFCs vs the papers written by Dave Clark, Vint Cert et al on exactly the 
same topic .   It's not so much where you work as how you publish and 
what's in the contract.

So, yes it would affect faculty if the deliverable was specifications 
for the network.  USC can't unilaterally waive the FARs for the performers.

Technical documents published to an (at the time) internal archival 
system for the use of other members of the community and where no 
copyright was asserted by ISI or approved by the Contracting officer 
wouldn't be in that category.

Here's the paragraph in the FARS that would have been incorporated in 
the contract (or something very similar to this). Even if no approval 
was required, the FARS require explicit assertion of copyright in the 
body of the work, and acknowledgement of the funding support by the 
government - both of which are absent in most of the RFCs.

> (i) Unless provided otherwise in paragraph (d) of this clause, the 
> Contractor may establish, without prior approval of the Contracting 
> Officer,_claim to copyright in scientific and technical articles based 
> on or containing data first produced in the performance of this 
> contract and published in academic, technical or professional 
> journals, symposia proceedings or similar works_. The prior, express 
> written permission of the Contracting Officer is required to assert 
> copyright in all other data first produced in the performance of this 
> contract.

> There are also other workarounds - e.g., hiring someone to write a book is work for hire; hiring them to investigate a topic and submit periodic progress reports - and having them write the book based on that research but on their own time - is not.

The progress reports are work for hire - the papers are probably not.  
If the contract requires the book, then all bets are off on whether the 
book is a work for hire.

> And those two cases aren’t hypothetical; IANAL but they are based on direct experience at USC with the appropriate experts, FWIW.
>
> Joe

Yup - but there's this real confusion about the difference between IPR 
and copyright with respect to work funded by the US Gov't.  In the 
ARPA/DARPA contracts I funded (and before that the NIC and BBN contracts 
I managed at the DDNPMO), the underlying IPR was generally the property 
of the contractor, but the US Gov't got unlimited paid up rights.  The 
documents produced under the contract and delivered to me or provided to 
the community were for the most part free of originator copyright 
restrictions.  They weren't public domain per se, but absent an explicit 
claim of copyright (which I think is still the case today even with 
changes in the copyright rules), they could be treated as public 
domain/government owned.  During the term of a number of contracts, 
various investigators published "scholarly works" in public journals and 
asserted copyright over them - those copyrights belong to the originator 
or to their employer and not the US Gov't.

Later, Mike

---

From: Masataka Ohta <[email-masked]>
Date: Mon, 17 Jun 2019 06:27:07 +0900

> quoting rfcs are published.

that the rfc is in public domain in US does not mean it is so in
other countries. So, if considerable number of copies of the rfc
was available in UK within 30 days of publication of the rfc in
US, things can be very complex.

That's why we should concentrate on the simple problem of free
fair quoting by Berne convention.

							Masataka Ohta