Subject: IETF RAND policy

From: "Eric S. Raymond" <[email-masked]>
Date: Thu, 20 Feb 2003 02:22:40 -0500

Larry Rosen informs me that an unspecified member of the IETF's Working
Group on Intellectual Property has stated:

> At the very least, please consider ceasing to claim to
> represent anyone other than yourselves to limit further damage.

I am not going to lecture anyone at IETF on open-source principles.  I
have had sufficient conversation with Fred Baker. Steve Crocker, and a
number of other IETF old hands to consider that such a lecture would
be superfluous to the point of insult.  We all know well enough that
the net was built on open standards and open source that the point
does not require belaboring.  Indeed, I regard the IETF as one of the
wellsprings of today's movement, and have so stated publicly on
numerous occasions.

However, as the president of the Open Source Initiative, I feel a need
to correct a misapprehension implied in the above quote.  Larry Rosen
is not representing merely himself, but the OSI as well.  He has done
excellent work on our behalf at W3C, and has earned the full faith and
credence of our Board.

The OSI, in turn, is one of the two principal organizations (with the
Free Software Foundation) representing the open-source community.
While neither is a membership organization, hundreds of thousands
(perhaps millions) of programmers world wide trust us to represent
their interests to large corporations, to governments, and to
standards bodies.  Our license certification is eagerly sought
after and widely respected.

Accordingly, if Larry is claiming to represent the open-source
community, he in fact has substantial grounds for that claim.  
Only three or four people could mount a stronger one; most
of them are principals of either OSI or FSF, and all of them
are allied with us in matters within the IETF's purview.

Neither am I going to indulge in ideological ranting; I don't in general
find that the most useful method of persuasion.  But I will point out
some historical facts:

Larry has represented to you that the open-source community will not
adopt standards unless they are royalty-free.  Consider the LZW patent
and GIF versus gzip compression and PNG.  Consider MP3 versus Ogg
Vorbis.  Consider QuickTime and AVI versus MPEG.  Larry is correct;
this refusal is consistent, and extends well back before the movement
took on its contemporary shape.

These examples demonstrate that the open-source community does not
merely passively refuse patent-encumbered standards, it is willing to
mount significant engineering projects to counter and neutralize them.
Some time back I proposed a generalization of the well-known Gilmore's
Law ("The Internet interprets censorship as damage and routes around
it.").  Mine is "The Internet interprets attempts at proprietary
control as damage and routes around them."  Experience amply bears
this out.

It is difficult for me to imagine that you could be unaware of these 
background facts, and I believe your implicit claim to be sympathetic
with open-source concerns.  Rather, it seems to me more likely that you
either (a) consider an *explicit* push for RF-only standards policy 
disruptive of the political equilibrium with vendors that has enabled
the IETF to function, or (b) consider the rhetoric and tactics that
Larry and others have chosen to be counterproductive to the goal
of gradually, quietly weaning vendors off the proprietary approach.

I can readily imagine having those concerns myself if I were part of
your IPR WG.  At one time I myself would have favored such a low-key,
gradualist approach.  I must, however, point out that the political
background against which Larry's proposals must be evaluated has
changed significantly in the last five years.

Salient fact #1: The open-source movement's confidence in its own
mission has tremendously increased.  We have seen technical successes
on Linux, Apache, and other major projects; we have seen social success at
building a large, sustainable community; and we have seen substantial
leverage in the market economy through allies in the Global 100 and
leading-edge technology companies everywhere.

Salient fact #2: The stakes have risen.  We are seeing efforts through
IP legislation like the DMCA and patent-locked technologies like TCPA
and Palladium to lock down the Internet into a sort of giant media
pipe fraught with vendor controls.  The open-source community has been
put in a position where its *survival*, let alone any ideological
considerations, demands that it strenuously oppose royalty-bearing
or otherwise restricted patents on critical Internet standards.

Salient fact #3: The community has grown much more willing to work
with corporate interests than it formerly was, but only in the
presence of a basic assumption that everybody is willing to put away
their IPR guns when they come to the table.  Projects such as Apache
and Mozilla, and their applications in the real world, have
demonstrated that everybody can win when the game is played this way.

Accordingly, the no-compromise-with-RAND position that Larry is
articulating represents not only himself and OSI, but a consensus of
the open-source community which is only growing stronger as time goes
on.  The OSI recently reaffirmed this position in its comments on
W3C's proposed patent policy, and we did so in every confidence that
we were reflecting the will and intentions of a very broad
constituency.

In short, if you think RF-only is still a radical position, I am
afraid you are gravely mistaken.  There is a growing army of hackers,
entrepreneurs, users, and civil libertarians behind Larry Rosen and
OSI and our allies.  While we may differ in philosophy and rhetoric,
we are united on a point with which we hope the IETF agrees: we
will *not* suffer the Internet to pass into proprietary control. 

Therefore, we will use every means of engineering and public agitation
-- in fact, any method available to us save only force or fraud -- to
resist soi-disant Internet `standards' that have blocking patents
issued under non-RF terms.  We will actively seek to defeat such
standards wherever encountered.  This is not merely an incidental
cause about which emotions run high, it a mission central to the very
identity and history of the open-source community.  Like the IETF, we
too consider ourselves the guardians of the net.

We hope and pray that the IETF will live up to its own best traditions by
standing with us.
-- 
		<a href="http://www.catb.org/~esr/">Eric S. Raymond</a>
_______________________________________________
Ipr-wg mailing list
[email-masked]
https://www1.ietf.org/mailman/listinfo/ipr-wg

---

From: Keith Moore <[email-masked]>
Date: Thu, 20 Feb 2003 09:22:59 -0500

>  Larry Rosen is not representing merely himself, but the OSI as well. 

not here he isn't.  it's a violation of IETF rules.  

> adopt standards unless they are royalty-free.

in practice, IETF does something very similar.  IETF does not have a 
formal policy of avoiding encumbered technology, but then again,
neither does the open-source community.  each group acts in its
best interests, which happen to have substantial overlap.

> mount significant engineering projects to counter and neutralize them.

if you look at IETF practice you'll discover similar efforts here,
particularly in the area of security.

> of gradually, quietly weaning vendors off the proprietary approach.

neither.  IETF consists of individual participants.  IETF's goal, simply
stated, is to make the Internet work well.  IETF needs rules that allow
those individuals to work toward that goal as effectively as possible.
creating rules that allow the process to be 'gamed' by a party that
possesses patents of questionable validity or applicability is
counterproductive to IETF's goals.  so is having a policy that prevents
standardization of encumbered technology when this is the only way
to solve a problem (as does happen occasionally), or when the abliity
to interoperate without using the encumbered technology is maintained.

> issued under non-RF terms. 

few of us will blame you for resisting such standards.  indeed, many of
us are open source software authors, and many of us share your convictions. 
which helps to explain why such standards rarely gain the consensus
necessary for approval in IETF.

we do not question your goals or your resolve.  we question your methods.
IETF already has mechanisms to eschew use of encumbered technology.  but
a formal insistence on RF terms would harm IETF's ability to do work.
it is extremely unlikely that you would get a consensus of IETF to agree
to do that, particularly when the arguments are being made by people who
don't have a history of participation in IETF, and who demonstrate a lack
of understanding of the mechanisms already in place.

---

From: D F <[email-masked]>
Date: Thu, 20 Feb 2003 09:38:59 -0500

On February 20, 2003 02:22, Eric S. Raymond wrote:
[snip]
> are allied with us in matters within the IETF's purview.

[snip]

> Larry has represented to you that the open-source community will
> not adopt standards unless they are royalty-free.  Consider the
> LZW patent and GIF versus gzip compression and PNG.  Consider MP3
> versus Ogg Vorbis.  Consider QuickTime and AVI versus MPEG. 
> Larry is correct; this refusal is consistent, and extends well
> back before the movement took on its contemporary shape.
>
> These examples demonstrate that the open-source community does
> not merely passively refuse patent-encumbered standards, it is
> willing to mount significant engineering projects to counter and
> neutralize them. Some time back I proposed a generalization of
> the well-known Gilmore's Law ("The Internet interprets censorship
> as damage and routes around it.").  Mine is "The Internet
> interprets attempts at proprietary control as damage and routes
> around them."  Experience amply bears this out.

This, in my opinion, is undeniable.

> It is difficult for me to imagine that you could be unaware of
> these background facts, and I believe your implicit claim to be
> sympathetic with open-source concerns.  Rather, it seems to me
> more likely that you either (a) consider an *explicit* push for
> RF-only standards policy disruptive of the political equilibrium
> with vendors that has enabled the IETF to function, or (b)
> consider the rhetoric and tactics that Larry and others have
> chosen to be counterproductive to the goal of gradually, quietly
> weaning vendors off the proprietary approach.

[snip]

> articulating represents not only himself and OSI, but a consensus
> of the open-source community which is only growing stronger as
> time goes on.  The OSI recently reaffirmed this position in its
> comments on W3C's proposed patent policy, and we did so in every
> confidence that we were reflecting the will and intentions of a
> very broad constituency.
>
> afraid you are gravely mistaken.  There is a growing army of
> hackers, entrepreneurs, users, and civil libertarians behind
> Larry Rosen and OSI and our allies.  While we may differ in
> philosophy and rhetoric, we are united on a point with which we
> hope the IETF agrees: we will *not* suffer the Internet to pass
> into proprietary control.
>
> Therefore, we will use every means of engineering and public
> agitation -- in fact, any method available to us save only force
> or fraud -- to resist soi-disant Internet `standards' that have
> blocking patents issued under non-RF terms.  We will actively
> seek to defeat such standards wherever encountered.  This is not
> merely an incidental cause about which emotions run high, it a
> mission central to the very identity and history of the
> open-source community.  Like the IETF, we too consider ourselves
> the guardians of the net.

It appears to me that the division which has reared its head on this 
list can really be distilled down to a few simple statements.

On the one hand, we have a group who feels that the IETF  is 
composed of individual engineers who are quasi-selflessly motivated 
to seek out the best engineering solution to a problem and who view 
any call to put strictures on that search as an encumbrance. In 
that light, any drive to put rules around recommendations; rules 
such as "all standards must be RF," constrains, _a_ _priori_, the 
characteristics of any solution that might be brought forward. I 
call this group the "idealists."

The second group feels that, despite the selfless motivation of the 
engineers in the group, it is unrealistic to believe that every 
single contribution to the discussion is purely motivated by the 
goal of finding the best solution. These people feel that there are 
organisms out there who would stoop so low as to to put forward a 
solution for purely mercenary reasons; not revealing, perhaps, that 
they or people they represent stand to make huge economic gains if 
they can successfully steer the standards process towards some 
specific end. I call this group the "pragmatists."

My own bent in these matters is to laud the idealists and to look 
toward them for guidance. Hence, I find the proposition of selfless 
engineers tirelessly working to find the best solution as something 
that we need to nurture and permit to grow. At the same time, it is 
also my bent to listen to the pragmatists and to use their words to 
shore up my defenses against the scenarios they describe since I 
realise that not everyone is magnanimous as I am and not everyone 
is ready to nurture the idealists. :-)

It would appear to me that the proposition that the WG should move 
forth with a recommendation that standards or proposals which are 
later found to be the subject of a submarine attack should be 
withdrawn.

Let's be clear about one thing. Those who are here representing only 
themselves but who are doing it on the company's hook, so to speak, 
should reasonably be expected to communicate back to their employer 
about the machinations of the WG. Else, why would the company be 
paying the freight? Clearly, the employer expects the individuals 
here to, at the very least, communicate to their peers in the 
company environment the trends that are seen in their WG 
participation.

Lastly, let me end this excessively long missive by adding that I, 
personally, think that we should not denigrate the contributions of 
any individual solely because that individual claims to be speaking 
for a broader group. It may be distasteful to the idealists in the 
crowd to think that there are people here who represent more than 
just themselves. At the same time, even an idealist should welcome 
anyone who is forthright enough to publicly admit that they are 
working for some larger agenda or for the interests of some larger 
group.

After all, if everyone wore evidence of their alliances on ther 
shirt sleeves, it would make the world a more transparent place, 
would it not?

- -- 
Dave Fluri
PGP Public Key-ID 3F64B9AC

---

From: Keith Moore <[email-masked]>
Date: Thu, 20 Feb 2003 11:03:41 -0500

> any call to put strictures on that search as an encumbrance. 
...
> goal of finding the best solution. 

these two groups are not mutually exclusive.  I find substantial
overlap between them.  having a standard that participants use their
best engineering judgement is a pragmatic response to the conditions
we are faced with.  of course we realize that individual participants
may fail to meet this standard.  but the purpose of any standard
is to raise the bar above what would exist in the absence of a standard.

> for a broader group.

not what's intended at all - we certainly respect the individual's
contribution on behalf of that individual.  but such claims also illustrate
that the individual is lacking essential knowledge about how the
process works, and that his criticisms of the process are therefore dubious.

---

From: "Lawrence E. Rosen" <[email-masked]>
Date: Thu, 20 Feb 2003 08:37:43 -0800

> IETF 
> needs rules that allow those individuals to work toward that 
> goal as effectively as possible. creating rules that allow 
> the process to be 'gamed' by a party that possesses patents 
> of questionable validity or applicability is 
> counterproductive to IETF's goals.  

Keith,

You keep referring to a "gaming" of the process by patent holders.  

Nobody has ever suggested that IETF should accept at face value the
patent claims of every patent holder.  Nothing in an RF patent policy
implies that we avoid a technology simply because someone demands money.
Instead, as I suggested in my proposal yesterday, we should simply
refuse to standardize on any technology we "know" to be unavailable on
RF terms.  (Please read my words instead of trying to read my mind.)  

"Gaming" is often a buzz-word for what Rambus was accused of doing --
using opportunities it had as a member of a standards organization to
obtain patents reading on that standard.  Courts will probably continue
to hold such gaming to be fraudulent behavior, despite the reversal of
the Rambus decision on appeal (on the limited grounds that the standard
in question didn't infringe Rambus' patents after all).  The lower court
in Rambus said, and this I believe is the critical point, that such
gaming is not fraudulent unless the patent policy is clear about what is
expected behavior by participants.  A good patent policy should be
unambiguous about what behavior is required.  

/Larry

---

From: Keith Moore <[email-masked]>
Date: Thu, 20 Feb 2003 11:40:07 -0500

> patent claims of every patent holder. 

IETF policy is that the organization does not make any determiniation of
whether a patent claim is valid or applicable.  This determination is left to
individual participants when deciding whether to contribute to a consensus.

---

From: "Lawrence E. Rosen" <[email-masked]>
Date: Thu, 20 Feb 2003 09:46:09 -0800

> IETF policy is that the organization does not make any 
> determiniation of whether a patent claim is valid or 
> applicable.  This determination is left to individual 
> participants when deciding whether to contribute to a consensus.

I agree with that statement -- in so far as it goes.  But even engineers
are capable of reasonably determining whether, in their opinion, a
patent reads on a proposed standard.  To adopt a standard in light of
that reasonable belief can be willful infringement, contributory
infringement or inducing infringement.

/Larry Rosen

---

From: Ted Hardie <[email-masked]>
Date: Thu, 20 Feb 2003 10:06:42 -0800

Eric,
         As was pointed out to Larry, the IETF has a set of
procedures that govern working groups. One of these is
that the charter matters; Larry has consistently tried to
get this working group to take on work which is beyond
its current charter.  The second is that individuals
participate in the IETF, not representatives.  We certainly
appreciate the  expertise brought by the various members of
this discussion to the table.   That expertise is given no more
weight when expressed by a member of a movement,
a government, or a church than it would be when
expressed by an individual.  Eric,
  This has been explained to Larry
by me, among others; see
http://www1.ietf.org/mail-archive/working-groups/ipr-wg/current/msg00418.html
for my note to him.
         No one here is asking Larry not to participate.  We
are asking that he participate according to the way
the IETF works.
         I also note that below you indicate that you (and some set
of others):

"will use every means of engineering and public agitation
-- in fact, any method available to us save only force or fraud -- to
resist soi-disant Internet `standards' that have blocking patents
issued under non-RF terms.  We will actively seek to defeat such
standards wherever encountered.  This is not merely an incidental
cause about which emotions run high, it a mission central to the very
identity and history of the open-source community.  Like the IETF, we
too consider ourselves the guardians of the net."

         You have set forward a goal in which the royalty status of a
standard is an over-riding factor in determining whether or not to
support that standard.   Note that the IETF's over-riding goal is to
produce engineering work (some of it in the form of standards) which
provides the best solutions for problems facing the Internet as a whole.
The ability to produce implementations of our standards (and thus
the royalty/ipr involved) is an important factor in those choices.
To make IPR issues the over-riding factor would, however, restrict
the available choices in ways which might have serious consequences.
You can understand on that basis, I hope, why we can strongly
prefer unencumbered or royalty-free technology but still feel that
we cannot live up to our own mandate if we eliminate a class
of solutions when the best engineering choice for the Internet
as a whole may be a solution from that class.
         As a set of people who consider yourselves to
be guardians of the net, you can help the IETF by ensuring that there
are unencumbered or royalty-free alternatives available when working
groups must make engineering choices; you will not find us
reluctant to consider them.
                                 best regards,
                                         Ted Hardie

---

From: "Joel M. Halpern" <[email-masked]>
Date: Thu, 20 Feb 2003 13:31:51 -0500

Actually, based on experience, engineers are rarely skilled or trained 
suitably to make that determination.  Even trial oriented patent lawyers 
are very reluctant to make a conclusive decision on such.  (A lawyers 
decision rendered as a legal opinion to an implementor can be helpful in 
avoiding fraud charges if the lawyer is wrong, but it actually does not 
tell you much.)
On one occasion, the IETF actually got a legal opinion on a patent claim 
that seemed quite remote to an I_D under development.  After looking at the 
patent and the I-D under discussion, the lawyers responded with what we 
should have expected.  ~The patent does not appear to apply to the 
work.  However, they may claim applicability or even sue implementors 
anyway.~  It is based on this and similar experience and feedback that the 
IETF made the determination that we were much better off never making an 
explicit determination as a group as to the applicability of patent claims 
to our work.  Individual engineers can and will make their own 
judgements.  Corporations must make their own judgements.  The IETF as a 
community has found that making such judgements as a community is an 
impractical idea.

Yours,
Joel M. Halpern

---

From: John C Klensin <[email-masked]>
Date: Thu, 20 Feb 2003 14:21:02 -0500

Eric, Larry, and several others,

I've been trying to watch this high-volume and extremely noisy 
thread and to avoid adding to the volume, but the traffic of the 
last day or so seems to call for a few comments that have not 
been made.  So, in the hope of shedding a little additional 
light on some of the issues...

(i) One of the long-time attractions of the free software and 
open source movements has always been the freedom those models 
give a would-be implementor.  If I find the way something works 
unattractive, I can grab the source and make modifications to 
suit my taste.  I need to make the changes available if I decide 
to distribute the modified version in any way, and others then 
can decide whether to make it part of some "official" 
distribution or not.  But no King, Board, President, Founder, or 
Demi-god can say "you don't get to examine or modify that code 
unless you sign up to the approved religion and aesthetic 
standards".  I hope that hasn't changed.

If only to head off more pointless discussion, I am happy to 
stipulate that you and Larry represent and speak for the OSI 
Board, that OSI (and its Board) are widely recognized and 
important, that the Board speaks for an participant or 
certification-seeker who decides to be so represented, and that 
many people like and want your certification.  Of course, I 
speak only for myself in this, I am not able to bind anyone else 
in the IETF community and would not try to do so if I could.

(ii) Despite the title of this thread, the IETF does not have a 
RAND requirement.  We dropped it years ago when we concluded 
that it did not provide adequate flexibility and concluded that 
we had no plausible way to enforce the "reasonableness" of such 
a requirement.  See below.

(iii) Ignoring copyright to documents, the IETF does not license 
anything, nor do we, as the IETF, develop code or 
implementations.  We have no control over the uses anyone makes 
of our standards or other recommendations.  We are also not in 
the certification or conformance-testing business.  If someone 
claims to be conformant to an IETF standard, and is not, that is 
a problem between them and their users.  We have been advised by 
counsel that standards, themselves, don't violate patents.  An 
implementation might be infringing, but a standard that says "if 
you want to conform to this, use the following" does not. 
Contrast this with W3C which, at least when the organization of 
which I was a part at the time dropped out, actually engaged in 
the development of code (see below).

(iv) What we have instead of a RAND policy is a requirement for 
early disclosure by participants and a very strong bias toward 
_unencumbered_ (not merely RF) technology.  But we essentially 
say to a Working Group "you have to look at the technology and 
come up with the best solution, balancing all of the tradeoffs, 
including the implications of any encumberances".  That leaves 
each working group (which presumably contains the experts) the 
same freedom that an open source license leaves an implementor 
-- the ability to make up its own mind as to where to invest its 
energy.  Any working group which has experienced the pushback 
from the community after presenting a significantly encumbered 
technology (remember, RF is our _second_ choice, not our first) 
when a plausible unencumbered option exists understands just how 
strong that preference is.  But we have concluded, pragmatically 
and from experience, that a rule, independent of subject matter 
and independent of working group, that it is unreasonable and 
unrealistic for the IETF to try to draw a firm line between the 
encumberances we find acceptable and those that we don't.   We 
prefer to understand the reasons why someone claims an 
encumbered technology is desirable before dismissing them out of 
hand.

(v) In addition to the implications of having to make choices 
between technologies and types of encumberances, we concluded 
that trying to establish a rigid patent policy would not work. 
As Larry's comment about an aspect of the status of the W3C 
patent policy illustrates, W3C does a good deal of its work in 
secret, with strong confidentiality requirements.  We don't do 
that: in general everything we do  to develop a standards or 
recommendation is public.  And, unfortunately, we've had several 
apparent examples in which organizations who are not 
"participating" in the IETF process (and who do not have 
employees or affiliates participating), pull a posted Internet 
Draft and file for a patent on some of its ideas and methods. 
This is not a submarine attack in the usual sense -- if the 
organization and those it supports are  not involved with the 
IETF other than reading public documents, no rule we make, 
including any hypothetical RF rule, is going to have much impact 
on them.

If the patent is granted and the technology of the I-D becomes a 
standard (in either order), and the company comes around looking 
for licenses, royalties, or other forms of tribute, there just 
isn't a lot we can do about it... nor would a global "RF only" 
provision help.  Withdrawing the relevant standard  because of a 
claim that reasonable people (and their lawyers) conclude can be 
invalidated on prior art grounds would be irresponsible and 
falling victim to the worst sort of DoS (or plain blackmail) 
attempt.   And, of course, if implementers conclude that the 
threats from the patent-holder must be taken seriously enough to 
prevent implementations, that would be a very important 
consideration if the standard came up for Draft or Full Standard 
status.  Even if that does not occur, I just can't imagine the 
IESG ignoring a statement or I-D that clearly documented the 
unimplementability or undeployability of a standard because of 
licensing obstructions (or for any other reason).

(vi) Finally, to repeat, we are not W3C.  W3C's membership is 
generally organizational, and those organizations pay a 
sufficiently stiff entrance fee to leave them with little doubt 
as to whether or not they are participating members.  W3C 
expects its member organizations to contribute code, and people 
to write code.  That code then becomes a W3C product, which W3C 
wants to license out on an RF basis.  That organizational 
structure and goals give them constraints and requirements that 
the IETF just doesn't have (and vice versa). In particular, we 
really do have a significant number of people who participate as 
individuals.  We have others whose participation is supported by 
companies or other institutions, but who have specific, 
sometimes written, agreements with those companies that they are 
not expected to represent or promote company positions.  And we 
do standards and technology recommendations; we don't develop 
code.   Even the "reference implementations" to which you refer 
are not only not IETF products, there is no IETF certification 
that they actually represent the relevant standard(s).

Now, speaking personally, I would welcome suggested text -- from 
you, Larry, or anyone else-- that clarifies the _preference_ for 
unencumbered or, at worst, no-royality technologies.  I hope the 
document editors would welcome such text as well. But, unless 
there is a major change in the preferences of those who actually 
contribute to the IETF, you should understand that the decision 
Larry is trying to cast into a simplistic rule will remain a 
working group decision (subject to community review), with the 
WG expected to carefully evaluate all of the engineering, 
philosophical, and deployment alternatives and tradeoffs.  And, 
as others have pointed out, changing that provision is outside 
the current charter of this WG.

Since I don't think anyone has mentioned it, it may be useful to 
remind you that WGs have sometimes adapted to the preference for 
unencumbered technology with fine instruments, rather than heavy 
and blunt ones.  For example, we have several standards that 
have "mandatory to implement" provisions that point to 
unencumbered or RF technologies and provision for optional 
variations that use technology that is be better in one respect 
or another but that may be encumbered.  I would assume that the 
open source community would implement the unencumbered mandatory 
part and ignore (or work around) the encumbered options.  If the 
implementations are high-quality, and the optional methods get 
comparatively little market acceptance because they are 
encumbered, then we, IMO, all win.  Conversely, I think it would 
be silly and self-defeating for the open source community, or 
even the bodies that speak for it, to avoid or denounce an IETF 
standard because it contains provision for optional features 
that are claimed to require licensing.

regards,
    john

--On Thursday, 20 February, 2003 02:22 -0500 "Eric S. Raymond" 
<[email-masked]> wrote:

> Larry Rosen informs me that an unspecified member of the
> IETF's Working Group on Intellectual Property has stated:
>
> I am not going to lecture anyone at IETF on open-source
> principles.  I have had sufficient conversation with Fred
> Baker. Steve Crocker, and a number of other IETF old hands to
> consider that such a lecture would be superfluous to the point
> of insult.  We all know well enough that the net was built on
> open standards and open source that the point does not require
> belaboring.  Indeed, I regard the IETF as one of the

---

From: "Eric S. Raymond" <[email-masked]>
Date: Thu, 20 Feb 2003 13:00:23 -0500

> not here he isn't.  it's a violation of IETF rules.  

Whether the IETF permits itself to recognize Larry's agency for the open-source
community is a different issue from whether that agency exists.  You would have
been better off observing "IETF cannot acknowledge your claim" than suggesting
that the claim is invalid.

> best interests, which happen to have substantial overlap.

I am aware of this, having been an IETF participant myself.  I believe
we were on the RFC2822 working group together some years back.
 
> a formal insistence on RF terms would harm IETF's ability to do work.

That sounds like my case 1 :-).  

You say "a formal insistence on RF terms would harm IETF's ability to do work".
What do you fear, a rash of vendor defections?
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---

From: "Eric S. Raymond" <[email-masked]>
Date: Thu, 20 Feb 2003 15:55:20 -0500

Ted Hardie <[email-masked]>:
> its current charter.

I have just read the charter and reread RFC2026.  I must respectfully
disagree with your contention that Larry's proposal is necessarily
beyond scope.  While the final determination is for the active WG
members to make, it appears to me that the language could readily be
construed to permit this and that WG members are declining to do so.

If your actual position is that the issue is too politically loaded
for the WG to address even though it's arguably within scope, I can
respect that -- I might dispute it, but I can respect it.  It is for
the active WG members (and not for me or any outside party) to
interpret the charter in light of what they believe is possible for
them to accomplish.

But I don't think anyone is served by an attempt to close off the
RF-vs.-RAND discussion by invoking the letter of the charter language
-- it's really not much of a fig leaf, and if that's what has been
going on I would have to agree that Larry has some grounds for upset.
From his point of view, that would be a form of evasion that verges on
on dishonesty.

> are asking that he participate according to the way

A reasonable demand.  To the extent that Larry has failed to
understand or observe local norms, his tactics may be in error even
though his claim of agency and his claim that RF-vs.-RAND is 
arguably within scope may be valid.

If the WG truly has a strong consensus that it does not choose to
address the RF-vs.-RAND question at this time, then the local norms of
the IETF require Larry (and OSI) to accept this.  I will state, with
very little fear of being overridden by my Board, that OSI is willing
to work within the normal IETF process rather than sponsoring any
attempt (whether purposeful or inadvertent) to disrupt it.

Larry, you should take this as direction to read or re-read "The Tao
of IETF" and related documents, and to meditate on what you find
there.  I think *all* parties to this discussion would like you to
represent the open-source community as effectively as possible within
the IETF's rules, and to avoid unnecessary culture clashes.

> as a whole may be a solution from that class.

I'm an engineer too.  While I make no claim to be a core member of the
IETF in the way that you or Keith Moore or Harald Alvestrand are, I
have participated in the IETF process and I think I understand your
position.  I am informally a member of the IETF community in precisely
the same sense that many of the IETF participants in this conversation
are informally members of the open-source movement.

Wearing both my IETF hat and my open-source hat, my concern with a
policy of accepting RAND when it seems the best engineering solution
is that it risks winning individual battles only to lose the war.  We
all know that in technical local optimization by hill-climbing can
fail to find global maxima.  If you optimize for short-term gains in
the technical function of the Internet at the cost of allowing its
core standards to become contaminated with proprietary IP, I fear you
will find that you have lost control at the policy level.

Fundamentally, the argument is about how inclusively we are going to
define "the best solutions for problems facing the Internet as a
whole."  I agree wholeheartedly with that goal; it is and should
remain the defining mission of the IETF.  The question that Larry and
the open-source movement is implicitly posing is whether IETF is
willing to extend its consideration of that goal to *explicitly*
include the context of economics, ethics, and social engineering --
rather that covertly including those factors while pretending that all
we are doing is technical engineering.

Engineering doesn't happen in a vacuum.  It *matters* that the RIAA
and MPAA and Microsoft and others want to lock down the net and are
prepared to use any and all means, including patent attacks, to do it.
If we fail to resist that by any and all means available to us
(including refusing non-RF patents), we will not be fulfilling the
"best solutions" mission.  If those adversaries succeed because we
mis-defined the scope of the problem, we will have failed as
engineers, solving the local problem but disasterously abdicating the
global one.

I don't want to see that happen.  I don't think you do either.

Thus, I must respectfully challenge the IETF to better define its
objectives, and consider whether its existing policy (essentially one
of opposing RAND without formally barring it) remains adequate under
today's higher-threat conditions.  

If the Intellectual Property Rights WG is not prepared to consider
this question, who is going to?  And what would the correct process be
for opening it?

> reluctant to consider them.

That reassurance, while not unwelcome, is wonderfully unnecessary; IETF's
past behavior gives me every confidence that what you say is so.  I
hope you share my confidence in the open-source community's reciprocal
eagerness to provide those solutions whenever the absence of blocking
patents and other impediments makes this possible.
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---

From: "Reb Thomas" <[email-masked]>
Date: Thu, 20 Feb 2003 17:14:36 -0500

Larry,

Merely adopting a standard cannot be willful infringement, contributory
infringement or even inducement of infringement since the adoption of the
standard is not making, using, selling or offering to sell the patented
invention.  Quite the contrary, the owner of the patent would overjoyed at
the adoption of the standard.  Infringement, assuming for the example that
such is the case, would only occur if someone implemented the standard
without a license from the patent holder.  You come at this from the premise
that by adopting the standard, the IETF would be sanctioning use of the
standard without any risk of infringement but remember that the IETF makes
no representations and gives no warranties of non-infringement.

Calhoun "Reb" Thomas III
Thomas Law Firm
"Helping inventors with patents & other IP rights"
1201 Main Street, Suite 1980
Columbia, SC 29201

-----Original Message-----
From: [email-masked] [mailto:[email-masked]]On Behalf Of
Lawrence E. Rosen
Sent: Thursday, February 20, 2003 12:46 PM
To: 'Keith Moore'
Cc: [email-masked]; [email-masked]
Subject: RE: IETF RAND policy

/Larry Rosen

---

From: "Lawrence E. Rosen" <[email-masked]>
Date: Thu, 20 Feb 2003 14:25:08 -0800

That wasn't what I said.  Here is a direct quote from my first email to
the group on this topic:

   The only way that companies can reasonably rely
   on standards issued by IETF is if the organization
   exercises reasonable diligence to clear any 
   outstanding IPR issues.  If you are cavalier
   about this problem, then anyone who implements
   IETF standards in software or who becomes a user
   of such software is risking way too much.  Remember,
   infringement claimants probably won't sue IETF, 
   they'll sue anyone who makes, uses or sells 
   infringing software.  

   Why should a company adopt IETF standards if you
   aren't careful to identify and obtain license
   rights to essential patents?

This dialogue has been quite a challenge.  It is particularly
frustrating when I'm accused of advocating positions I never held.

/Larry

> From: Reb Thomas [mailto:[email-masked]] 
> Sent: Thursday, February 20, 2003 2:15 PM
> To: [email-masked]; 'Keith Moore'
> Merely adopting a standard cannot be willful infringement, 
> contributory infringement or even inducement of infringement 
> since the adoption of the standard is not making, using, 
> selling or offering to sell the patented invention.  Quite 
> the contrary, the owner of the patent would overjoyed at the 
> adoption of the standard.  Infringement, assuming for the 
> example that such is the case, would only occur if someone 
> implemented the standard without a license from the patent 
> holder.  You come at this from the premise that by adopting 
> the standard, the IETF would be sanctioning use of the 
> standard without any risk of infringement but remember that 
> the IETF makes no representations and gives no warranties of 
> non-infringement.
> 
> Calhoun "Reb" Thomas III
> Thomas Law Firm
> From: [email-masked] [mailto:[email-masked]]On 
> Behalf Of Lawrence E. Rosen
> determiniation 
> > of whether a patent claim is valid or applicable.  This 
> determination 
> > is left to individual participants when deciding whether to 
> contribute 
> > to a consensus.
> 
> I agree with that statement -- in so far as it goes.  But 
> even engineers are capable of reasonably determining whether, 
> in their opinion, a patent reads on a proposed standard.  To 
> adopt a standard in light of that reasonable belief can be 
> willful infringement, contributory infringement or inducing 
> infringement.
> 
> /Larry Rosen
>

---

From: Ted Hardie <[email-masked]>
Date: Thu, 20 Feb 2003 14:39:07 -0800

Eric,
         Thanks for your message, some comments in-line.

>interpret the charter in light of what they believe is possible for

The issue is more one of serialization.  The charter of the working
group was written with (as I understand it) the
expectation that on completing its current work it would
consider re-chartering to take on the broader questions.
My memory of the discussion around that strategy is that
the community felt the broader discussion would take sufficient
time and work that clarifying the current policy should be
done first, and quickly.  Part of doing that quickly implied
postponing the distraction of considering what changes might
eventually be needed to a later phase of the working group's
life.

You'll note a related strategy in the group considering reform of
IETF process.  The problem-statement group is chartered to identify
problems first (i.e. increased latency) and will only consider  potential
solutions after we have community consensus on what needs
to be fixed.  The concern there was that discussion of specific
solutions might overwhelm identification of some of the
root problems.  In both groups, serialization with charter updates
seemed like the best way to tackle the overall set of issues.  I
also believe it was a way to signal the broader IETF community
when they needed to pay specific kinds of attention.  If, in
this group's "phase 2", we identify issues with the current
IPR policy (as opposed to the clarity of the current policy),
the re-chartering gives the broader community notice that
the question is now being considered.

This is, of course, only my view; the chairs and responsible AD
(in this case, Harald, the IETF chair) may wish to correct my memory
or present a different view.

> >From his point of view, that would be a form of evasion that verges on

Again, we're not trying to close it off; we're attempting to
tackle it in order.  Re-reading the charter now, I can see
how the description of the working group's phases might
be less than clear to someone joining the discussion at
this stage.  I hope it is clearer now.

>include the context of economics, ethics, and social engineering --

I'm glad you've posed the question explicitly, and I think it should
be one of the questions taken into account when we move forward
with the discussions.  Perhaps, though, it might be phrased as *how* to
include the context of economics (or ethics or social engineering).
Our current policy does allow WGs and the wider community to
consider issues such as the economics of licensing or
the state of encumbrance, but it does so on a case-by-case basis.

>engineers, solving the local problem but disasterously abdicating the

I agree that scoping the problem is just as important here as it would
be in any other working group.   It is a difficult problem, as it implies
both an area of expertise not typically found in the IETF and a perspective
at a scale that is harder to keep in focus.  I personally
find it easiest to understand if I see it in terms of interoperability over 
time:
whenever a working group makes a specific choice, they constrain
later working groups whose work depends on interoperability
with that output and are constrained by previous decisions
by working groups with whose output they must maintain interoperability.
On the IPR side, WGs must see that licensing/encumbrance
issues have the same sorts of effects.

>this question, who is going to?  And what would the correct process be

The chairs and AD can set a when here, but I read the charter to
indicate that this discussion can begin after phase one is
complete, but that any actual changes must occur after a
re-charter (to give the community signal mentioned above).

>patents and other impediments makes this possible.

I do share your confidence, and I encourage the open source community's
members to continue to contribute to the IETF by providing those solutions.

As noted in my original message to Larry, I am, of course, speaking only for
myself here,
                 best regards,
                                 Ted Hardie

---

From: "Eric S. Raymond" <[email-masked]>
Date: Thu, 20 Feb 2003 18:08:14 -0500

> this stage.  I hope it is clearer now.

It is, thank you.
 
> the state of encumbrance, but it does so on a case-by-case basis.

Understood.  The question here is whether an anti-RAND policy or
case-by-case resistance is more effective behavior.  I have expressed
my judgment in private mail to Keith Moore that the IETF's historical
strategy was effective for a long time, but that I have many reasons
for doubting it will remain so.

> re-charter (to give the community signal mentioned above).

Thank you for the clarification.
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---

From: "Reb Thomas" <[email-masked]>
Date: Thu, 20 Feb 2003 23:24:38 -0500

I can only assume you are responding more to some comment of Keith's but it
sure looks like you are trying to say that you did not say  "To adopt a
standard in light of that reasonable belief can be willful infringement,
contributory infringement or inducing infringement." [see the end of the
included e-mails below if you need your memory refreshed as to when you said
it]  I am certainly not accusing you of "advocating positions [you] never
held."  I just felt it necessary to correct the first sentence quoted above.
Also, I note that the first sentence of the direct quote you included below
fundamentally misunderstands the IETF's function.  Companies may implement
an adopted IETF standard but they may not "reasonably rely" on the existance
of the standard as indicating that the IETF has exercised diligence
(reasonable or otherwise) in any attempt to "clear any outstanding IPR
issues."  Remember that in adopting standards the IETF disclaims any
representations or warranties of non-infringement.

If I misperceive your comments, please let me know.  I trust that most of
this is your advocacy for the OSI since it naturally would help the OSI and
all open source organizations if the IETF/ISOC were to "exercise reasonable
diligence" in screening standards for any patent infringment issues.  Then
OSI folks would think that they don't have to exercise such diligence and
that they can rely on the IETF/ISOC's efforts (and maybe have someone else
who might be responsible if a standard does lead to an implementor being
held liable for some infringment).

Calhoun "Reb" Thomas III
Thomas Law Firm

-----Original Message-----
From: [email-masked] [mailto:[email-masked]]On Behalf Of
Lawrence E. Rosen
Sent: Thursday, February 20, 2003 5:25 PM
To: 'Reb Thomas'; 'Keith Moore'
Cc: [email-masked]; [email-masked]
Subject: RE: IETF RAND policy

/Larry

---

From: Russell Nelson <[email-masked]>
Date: Fri, 21 Feb 2003 00:13:41 -0500

Reb Thomas writes:
 > diligence" in screening standards for any patent infringment issues.

That's not the point.  The OSI would like the IETF to commmit to NEVER
allowing RAND.  If the WG is informed that there is a patent on a
particular technology, it should not be required by the standard.  It
may be that the standard is better implemented using an alternate
patented implementation method, but as long as there is a non-patented
method, or as long as the patent is licensed RF, that is acceptable.

Specifically, section 10.3.2(c) of RFC2026 and section 9 of
draft-ietf-ipr-technology-rights-01.txt specify that RAND is acceptable.
This is like waving a red flag in front of an advocate of open source
or free software.  RAND is usually considered to be a code word for
"All comers to the plate pay the same royalty".  Since there's no
revenue stream for an open source application, that definition of RAND
means "No Open Source implementors need apply".  You can be sure that
we don't want to be locked out of any IETF standard, hence our
interest in modifying the ipr-wg's charter as described in its
charter.

-- 
-russ nelson              http://russnelson.com | A government does enough
Crynwr sells support for free software  | PGPok | wrong to offset what it
521 Pleasant Valley Rd. | +1 315 268 1925 voice | does right.  Better that
Potsdam, NY 13676-3213  | +1 315 268 9201 FAX   | it should do less.
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---

From: "Reb Thomas" <[email-masked]>
Date: Fri, 21 Feb 2003 06:58:08 -0500

What if "the WG is informed that there is a patent on a particular
technology" but there is great debate about whether the informant knows what
he or she is talking about, i.e. what degree of certainty (and whose
certainty) is required?  Should the IETF hire patent attorneys such as
myself to investigate and provide an opinion?  Certainly this is where
things go if the IETF were to adopt such a commitment.  The IETF can
informally try to avoid adopting standards that may implicate a patent but
it cannot allow itself to be sucked into the implicit
representation/warranty that comes from having a fixed commitment to not
allowing RAND.  The IETF disclaims representations and warranties regarding
the standard to avoid having to take action (which is quite different from
taking action because it wants to) in situations where there is disagreement
about the applicability of a patent.

Calhoun "Reb" Thomas III
Thomas Law Firm

-----Original Message-----
From: [email-masked] [mailto:[email-masked]]On Behalf Of
Russell Nelson
Sent: Friday, February 21, 2003 12:14 AM
To: [email-masked]; [email-masked]
Subject: RE: IETF RAND policy

---

From: Russell Nelson <[email-masked]>
Date: Fri, 21 Feb 2003 11:33:27 -0500

I think that many people would be mollified if section 3(C) of
draft-ietf-ipr-technology-rights-01.txt said this:

      to an Implementing Technology under royalty-free terms unless
      such a statement has already been

instead of this:

      to an Implementing Technology under openly specified, reasonable,
      non-discriminatory terms unless such a statement has already been

Similar edit for three occurrances in 3.1 and last sentence of 6.4.

I think that change fits inside the current charter.  Why?  Because as
Keith, John, and others have pointed out, the goal is and has always
been to have standards which do not require the payment of royalties.
Historically, this has meant standards which do not require patented
technologies.  This is becoming harder and harder to do.  These days,
it means royalty-free licensing.

I see that RFC2026 says that the ED will seek RAND terms.  Is that
what really happens?  Or does the ED *seek* RF terms, and accept RAND
terms if necessary?  That that's the case, then the charter of this WG
does not merely allow, but requires the change I suggest above.

I see nothing in the other two drafts which need to be changed.

I recognize that the IETF may end up creating standards which are not
RF.  The W3 has an exception process as well.

---

From: Scott Bradner <[email-masked]>
Date: Fri, 21 Feb 2003 12:44:37 -0500 (EST)

> what really happens? 

this process has only been exercised a few times (2 or 3 I think)
and its been a while since the last time (but there is a request to
send a request pending now) - so I'm not sure that we can say
for sure "what really happens"

it might be good to come up with a form letter to send (and I think
that asking for RF with a fallback of RAND fits within what 2026
asks to be done - 

Scott

---

From: "Lawrence E. Rosen" <[email-masked]>
Date: Fri, 21 Feb 2003 10:38:32 -0800

Reb,

I agree with you that IETF should not give an explicit or implicit
warranty about non-infringement.  That was never suggested.

IETF should give implementers all the relevant information it has in
order for those companies or individuals to decide whether to adopt a
standard.  Relevant information, even if couched in "we didn't verify
this but here's what we heard" language, will be useful.  

Otherwise there's an implication that material facts were withheld or
purposely ignored.  I don't know if such withholding is actionable, but
it is certainly unfair to subsequent implementers.

As for your email about willful infringement, consider the following
scenario.  Suppose an employee of Cisco (just an example!) heads up a WG
and also leads his company's implementation of the specification.  He
learns, through his IETF activities, that a patent is being asserted
but, following current IETF practice, he avoids the issue and does not
seek opinion of counsel.  Is his company's infringement willful?
Suppose he does, within his company, seek an attorney's opinion and is
told that Cisco won't implement the specification because of the risk of
infringement.  What are his obligations, if any, to his colleagues in
IETF and to other implementers?  If you were his attorney, what would
you advise?

/Larry Rosen

> From: [email-masked] [mailto:[email-masked]] On 
> Behalf Of Reb Thomas
> Sent: Friday, February 21, 2003 3:58 AM
> To: Russell Nelson; [email-masked]; [email-masked]
> What if "the WG is informed that there is a patent on a 
> particular technology" but there is great debate about 
> whether the informant knows what he or she is talking about, 
> i.e. what degree of certainty (and whose
> certainty) is required?  Should the IETF hire patent 
> attorneys such as myself to investigate and provide an 
> opinion?  Certainly this is where things go if the IETF were 
> to adopt such a commitment.  The IETF can informally try to 
> avoid adopting standards that may implicate a patent but it 
> cannot allow itself to be sucked into the implicit 
> representation/warranty that comes from having a fixed 
> commitment to not allowing RAND.  The IETF disclaims 
> representations and warranties regarding the standard to 
> avoid having to take action (which is quite different from 
> taking action because it wants to) in situations where there 
> is disagreement about the applicability of a patent.
> 
> Calhoun "Reb" Thomas III
> Thomas Law Firm
> Behalf Of Russell Nelson
>  > If I misperceive your comments, please let me know.  I 
> trust that most of  > this is your advocacy for the OSI since 
> it naturally would help the OSI and  > all open source 
> organizations if the IETF/ISOC were to "exercise reasonable  
> That's not the point.  The OSI would like the IETF to commmit 
> to NEVER allowing RAND.  If the WG is informed that there is 
> a patent on a particular technology, it should not be 
> required by the standard.  It may be that the standard is 
> better implemented using an alternate patented implementation 
> method, but as long as there is a non-patented method, or as 
> long as the patent is licensed RF, that is acceptable.
> 
> draft-ietf-ipr-technology-rights-01.txt specify that RAND is 
> acceptable. This is like waving a red flag in front of an 
> advocate of open source or free software.  RAND is usually 
> considered to be a code word for "All comers to the plate pay 
> the same royalty".  Since there's no revenue stream for an 
> open source application, that definition of RAND means "No 
> Open Source implementors need apply".  You can be sure that 
> we don't want to be locked out of any IETF standard, hence 
> our interest in modifying the ipr-wg's charter as described 
> in its charter.
> 
> --
> Crynwr sells support for free software  | PGPok | wrong to 
> offset what it 521 Pleasant Valley Rd. | +1 315 268 1925 
> voice | does right.  Better that

---

From: John C Klensin <[email-masked]>
Date: Fri, 21 Feb 2003 14:03:14 -0500

--On Friday, 21 February, 2003 11:33 -0500 Russell Nelson 
<[email-masked]> wrote:

>       to an Implementing Technology under royalty-free terms
> unless       such a statement has already been
>
> instead of this:
>
>       to an Implementing Technology under openly specified,
> reasonable,       non-discriminatory terms unless such a
> statement has already been
>

Russell and others,

I am not concerned with "mollifying" people; I'd like to get 
this right (and perfectly clear -- see note that will follow). 
I started to write a note agreeing with you, but then went 
through the document again and changed my mind.  It seems to me 
that the key language is in section 6.5, where examples of types 
of licenses are listed.  I think it would be desirable to change 
the introductory text there to make it clear that we _do_ have a 
preference for as few restrictions or conditions as possible, 
even while we don't have a preference for specific language.

Beyond that, if we are going to split hairs here, I suggest that 
we do it in a somewhat more ambitious way.  In particular, 
despite the heat this discussion has produced:

	* We need to recognize that an "RF" license is just a
	special case of the set of things that we would consider
	"reasonable" ones.
	
	* We prefer, and IMO ought to prefer, licenses that do
	not impose any duties on those who exercise them to
	licenses that, e.g., contain cross-licensing
	requirements or require the implementor to execute an
	explicit agreement with the rights-claimant.  Note that
	a license can be royalty-free but still contain such
	provisions or requirements.
	
	* We also need to recognize, as various of us try to
	insert "RF" wherever possible, that a license can be
	royalty-free and extremely discriminatory.  "If I let
	you use this at all, I won't charge you, but I reserve
	the right to be completely arbitrary about who I let use
	it" is an RF license, but not one that would make any of
	us happy.   OSI is apparently getting around this by
	approving license forms, one at a time, but I can't see
	IETF either going into that business or incorporating
	"OSI-certified RF licenses" into its procedures.

My suggestion would be that we extend 6.5, or add a new section, 
that gives explicit guidance about what, all other things being 
equal, make us happy (and less happy, and less happy yet).  The 
document does a bit of that now (e.g., "disclosures without 
licensing statements are likely to discourage a working group 
from adopting the technology" from 6.5 is a statement about 
something that would make us _really_ unhappy).  But I think 
there is reasonably good consensus in the community about 
preferred terms and conditions and that IESG has been 
encouraging things that agree with that consensus for years, and 
we should just write the preferences down as part of this 
clarification effort.

And, once we get through doing that, we should clean up the 
language in 3(C), 3.1, 6.4, and probably elsewhere that seems to 
contradict those preferences.

However, because "RF" doesn't inherently imply 
"non-discriminatory", I think it would be much better to make 
sure that RF is clearly identified as one of the forms of 
"reasonable", probably even the preferred one if "no 
encumberances" is not possible, but to leave "openly specified, 
reasonable, [and] non-discriminatory" in the text.   Also, while 
I'm personally much more concerned about retaining 
"non-discriminatory", I suspect "openly specified" is also 
important to the IETF.

   regards,
     john

---

From: Keith Moore <[email-masked]>
Date: Fri, 21 Feb 2003 14:18:53 -0500

> 	special case of the set of things that we would consider

I would instead say that RF might be an attribute of a licence that would
be considered reasonable, but as you point out, it's not a sufficient
condition.

Keith

p.s. fwiw, some of us have consistently maintained that in most cases
"reasonable and non-discriminatory" implies "royalty free" because charging of
royalties discriminates against free software providers.

---

From: Scott W Brim <[email-masked]>
Date: Fri, 21 Feb 2003 14:30:43 -0500

> from adopting the technology" from 6.5 is a statement about 

I like the idea of keeping a clear, narrow, scope for the "rights" RFCs,
except for passing mention, and putting things like this in the
"guidelines" RFC.  
_______________________________________________
Ipr-wg mailing list
[email-masked]
https://www1.ietf.org/mailman/listinfo/ipr-wg

---

From: Russell Nelson <[email-masked]>
Date: Fri, 21 Feb 2003 14:30:18 -0500

Keith Moore writes:
 > p.s. fwiw, some of us have consistently maintained that in most
 > cases "reasonable and non-discriminatory" implies "royalty free"
 > because charging of royalties discriminates against free software
 > providers.

That would be consistent with IETF past and current practices, but
it's not consistent with the way other people use the term.  It would
be much better to say "reasonable, non-discriminatory, and
royalty-free terms".  The charter is to clarify, right?

---

From: "Lawrence E. Rosen" <[email-masked]>
Date: Fri, 21 Feb 2003 12:03:28 -0800

Keith Moore wrote:
> I would instead say that RF might be an attribute of a 
> licence that would be considered reasonable, but as you point 
> out, it's not a sufficient condition.
> 
> Keith
> 
> p.s. fwiw, some of us have consistently maintained that in 
> most cases "reasonable and non-discriminatory" implies 
> "royalty free" because charging of royalties discriminates 
> against free software providers.

Here's what RF means to W3C:

With respect to a Recommendation developed under this policy, a W3C
Royalty-Free license shall mean a non-assignable, non-sublicensable
license to make, have made, use, sell, have sold, offer to sell, import,
and distribute and dispose of implementations of the Recommendation
that:

1. shall be available to all worldwide, whether or not they are W3C
Members;

2. shall extend to all Essential Claims owned or controlled by the
licensor and its affiliates;

3. may be limited to implementations of the Recommendation, and to what
is required by the Recommendation;

4. may be conditioned on a grant of a reciprocal RF license (as defined
in this policy) to all Essential Claims owned or controlled by the
licensee. A reciprocal license may be required to be available to all,
and a reciprocal license may itself be conditioned on a further
reciprocal license from all.

5. may not be conditioned on payment of royalties, fees or other
consideration;

6. may be suspended with respect to any licensee when licensor is sued
by licensee for infringement of claims essential to implement any W3C
Recommendation;

7. may not impose any further conditions or restrictions on the use of
any technology, intellectual property rights, or other restrictions on
behavior of the licensee, but may include reasonable, customary terms
relating to operation or maintenance of the license relationship such as
the following: choice of law and dispute resolution;

8. shall not be considered accepted by an implementer who manifests an
intent not to accept the terms of the W3C Royalty-Free license as
offered by the licensor.

License term:

9. The RF license shall be made available by the licensor as long as the
Recommendation is in effect.

10. If the Recommendation is rescinded by W3C, then no new licenses need
be granted but any licenses granted before the Recommendation was
rescinded shall remain in effect.

11. An interim license shall be made available 60 days after the
publication of the requirements document. This interim license will
expire 60 days after the publication of the Proposed Recommendation, or
90 days after the expiration date of the Working Group charter,
whichever comes first.

All Working Group participants are encouraged to provide a contact from
which licensing information can be obtained and other relevant licensing
information. Any such information will be made publicly available along
with the patent disclosures for the Working Group in question.

---

From: John C Klensin <[email-masked]>
Date: Fri, 21 Feb 2003 15:04:04 -0500

--On Friday, 21 February, 2003 14:30 -0500 Scott W Brim 
<[email-masked]> wrote:

>> My suggestion would be that we extend 6.5, or add a new
>> section,  that gives explicit guidance about what, all other
>> things being  equal, make us happy (and less happy, and less
>> happy yet).  The  document does a bit of that now (e.g.,
>> "disclosures without  licensing statements are likely to
>> discourage a working group  from adopting the technology"
>> from 6.5 is a statement about
>
> I like the idea of keeping a clear, narrow, scope for the
> "rights" RFCs, except for passing mention, and putting things
> like this in the "guidelines" RFC.

That is probably a better solution.  It would also shorten the 
"right" document which, IMO, would be A Good Thing in its own 
right.

    john

---

From: Russell Nelson <[email-masked]>
Date: Fri, 21 Feb 2003 15:07:40 -0500

> despite the heat this discussion has produced:

I agree with every one of your points, and withdraw my suggested
changes.  I want to clarify that when I say "royalty free", I think
most people expect it to mean more than just an absence of royalties.
Similarly, when the IETF says "RAND", I think IPR-holders expect that
to mean royalties which *they* think are reasonable; that is, non-zero.

 > we should just write the preferences down as part of this 

That would be excellent.  I think maybe the list should go like this:

Working groups have shown and should continue to show a prefererence
for technology which will find the widest possible set of
implementation and use.  Specifically, if all else is the same, IPR
should be preferred in the following order, highest to lowest:

  o Technology which has been in the public domain for more than one
    year.  This is a concern because the US followed first-to-invent
    rules, and filing can follow up to one year after disclosure.

  o Technology with no known IPR claims.

  o IPR disclosed and licensed with no restrictions.

  o IPR licensed with no material restrictions, e.g. no trademark
    license.

  o IPR licensed for a particular field of use but no other material
    restrictions, e.g. restricting the IPR solely for implementations
    complying with the standard.

  o IPR licensed under openly-specified reasonable and
    non-discriminatory restrictions.  This may include payment of a
    royalty.

  o IPR which is otherwise licensable.

  o IPR which is not licensable, e.g. which is only available as an
    implementation.

  o IPR which is not available under any conditions.

---

From: "Bob Wyman" <[email-masked]>
Date: Fri, 21 Feb 2003 15:19:52 -0500

Russell Nelson wrote:
>   year.
	One year isn't long enough. You typically can't discover if a
claim is being made until a patent application has been filed and that
doesn't happen until 18 months after filing. Given that you have 12
months to file and 18 months before publication, if you're going to use
a time limit, it should be 30 months (12+18). Also, note that in the US,
someone who is filing an application can avoid publication by forgoing
any foreign filings. Thus, even the 30 month limit doesn't cover all
cases -- however, it is probably a useful rule of thumb.
	Also, "public domain" carries much semantics that would just
confuse matters here. I would suggest that you replace "public domain"
with "publicly disclosed".

		bob wyman

---

From: "Bob Wyman" <[email-masked]>
Date: Fri, 21 Feb 2003 15:22:16 -0500

Sorry, I meant to say:
You typically can't discover if a claim is being made until a patent
application has been *PUBLISHED* and that doesn't happen until 18 months
after filing.

		bob wyman

---

From: Russell Nelson <[email-masked]>
Date: Fri, 21 Feb 2003 15:39:50 -0500

> Given that you have 12 months to file 

If you have prior art in hand, twelve months is long enough to wait.
The trouble with prior art is usually finding it and documenting it.
If you have a record of prior art, that's MUCH better than technology
with no known IPR claims.  If a patent was issued anyway (<moan>
patent office </moan>), you might be able to file to have it reversed.
You could also go to an attorney and say "I have prior art for <this>
claimed patent -- see, it's right here in the standard." and get a
judgement that you're not infringing.

 > with "publicly disclosed".

You're right, that's less confusing. So:

 o Technology which has been publicly disclosed for more than one
  year.

---

From: John C Klensin <[email-masked]>
Date: Fri, 21 Feb 2003 15:59:43 -0500

--On Friday, 21 February, 2003 15:07 -0500 Russell Nelson 
<[email-masked]> wrote:

> I agree with every one of your points, and withdraw my
> suggested changes.  I want to clarify that when I say "royalty
> free", I think most people expect it to mean more than just an
> absence of royalties. Similarly, when the IETF says "RAND", I
> think IPR-holders expect that to mean royalties which *they*
> think are reasonable; that is, non-zero.

Modulo Keith's observation, I think this is probably correct. 
However, I have seen several situations (in the ANSI SDO 
context) in which an IPR holder was much more interested in 
licensing to impose conditions than they were in money.  Of 
course, it can be argued that, e.g., the GPL is a royalty-free 
license that is actually immensely restrictive (I am not 
expressing any opinion here about the moral or practical 
desirability of the restrictions, only noting that they exist 
and impose real conditions on the use of technology covered by 
the license).
> Working groups have shown and should continue to show a
> prefererence for technology which will find the widest
> possible set of implementation and use.  Specifically, if all
>...

Your list strikes me as fairly reasonable (ignoring details like 
time limits and specific language).   However, I think IETF, as 
a standards body, has to be at least as determined to get 
non-discrimination guarantees as dollar ones.  As others have 
pointed out, unattractive as they might find it, even the open 
source community might figure out a way to pay a nominal royalty 
if there was no other plausible choice.  But an "only our 
friends get to implement this" provision attached to a plausible 
IPR claim would be, I would think, deadly to any notion of 
standardization.

     john

---

From: Russell Nelson <[email-masked]>
Date: Fri, 21 Feb 2003 16:23:33 -0500

John C Klensin writes:
 > As others have pointed out, unattractive as they might find it,
 > even the open source community might figure out a way to pay a
 > nominal royalty if there was no other plausible choice.  But an
 > "only our friends get to implement this" provision attached to a
 > plausible IPR claim would be, I would think, deadly to any notion
 > of standardization.

:-) I think you're starting to understand why RF is so important to
us.  "Deadly to any notion of standardization" is a reasonable phrase
to use for for either royalty-bearing OR discriminatory licenses.

It was my intent to include the whole spectrum of possibilities.  Are
you trying to say that I didn't mention "only our friends get to
implement this?"  I didn't say it explicitly because it's only one of
many examples of license restrictions which in the end translate into
"unusable".

---

From: Richard Stallman <[email-masked]>
Date: Fri, 21 Feb 2003 16:44:47 -0500

The Free Software Foundation is part of the free software movement,
which has built the free software community since 1984.  The open
source movement, started in 1998, contributes to our community today.
However, it would be anachronistic to rename our community after it.
Our community is the free software community.

On issues concerning software patents, our views are more or less the
same as the OSI's.  I don't know whether they are identical in every
detail, but we certainly agree with Larry Rosen's criticism of "RAND".
That acronym stands for "reasonable and non-discriminatory", but both
of those terms are deceptive: these licenses discriminate against free
software (and against open source software), and that is hardly
reasonable.

If standards are approved that we are forbidden to implement, we will
either implement them underground or not implement them at all.  That
much is not a choice of response, simply a statement of the options
that the situation would offer us.  However, our attitude and policy
in such a situation would be to oppose strenuously the public
acceptance of any such standards.  That would be our only hope of
avoiding a major defeat.

---

From: "Eric S. Raymond" <[email-masked]>
Date: Fri, 21 Feb 2003 17:04:34 -0500

> source movement, started in 1998, contributes to our community today.

That's Richard's view.  Mine is that the open-source movement was *named*
in 1998, but started much earlier than that -- arguably as far back as
the 1970s.  I view both the FSF and the IETF as major early participants
in this movement.
-- 
		<a href="http://www.catb.org/~esr/">Eric S. Raymond</a>
_______________________________________________
Ipr-wg mailing list
[email-masked]
https://www1.ietf.org/mailman/listinfo/ipr-wg

---

From: "Reb Thomas" <[email-masked]>
Date: Fri, 21 Feb 2003 21:00:20 -0500

Larry,

I agree that on an *aspirational* basis the individuals who come on and off
these mailing lists "should" do something.  When you state "give
implementers" it begs the question of who knows who is an implementer or
not - but lets just solve that problem by suggesting that the giving of
information be to everyone via a website that publishes the info for all to
see.  Now all we have to figure out is *who* has *what* information, is it
on paper or in their head, are they a member of IETF or not, how we are
going to force them to take the time to convey the information and in what
format, who is going to decide what is relevant and how they are going to
decide, how really useful all the wonderful "we didn't verify this"
information will be, etc, etc, etc.

People helping people (sounds like a song) is a good thing but I think that
you are advocating a legal responsibility when you say "should."  I don't
think that as things currently stand there can be any implication that
material facts are withheld because there is no duty to "give".  Remember -
no representation or warranty of non-infringement.  If the IETF were a
different type of organization, then things could be different.  Save it for
the next chartered discussion perhaps.

As for the first of the two questions you pose, you don't supply enough
facts to know whether or not willful infringement will be an issue.  In the
ordinary course of how these things go, it would be unlikely for several
reasons.

In the second situation, I am not aware of an obligation being imposed on
the WG chair to disclose the internal business and legal decisions made at
Cisco but I will admit that I am not as aware of all the numerous IETF RFC
documents that might be applicable as some on this list are.  Generally, the
standard IETF policy that says Cisco is not an IETF member even if one or
more individual employees are members further suggests that what Cisco does
or does not do in its internal risk assessment decisions is something Cisco
is entitled to keep as private as it chooses for a variety of reasons
(competitive advantage, antitrust, etc).  Of course they could make their
decision public if they wanted to.  It is their choice.  I think that mere
membership in the IETF standards setting process does not create the duty to
disclose confidential implementation decisions.  It may be possible to twist
these hypothetical facts in an unnatural fashion to create liability (WG
chair convinces WG to adopt standard knowing that his or her employer will
not implement and his or her goal is to get competitors on the WG to
implement the standard and be sued for patent infringement) but that is not
reality.

When you ask what advice I would give this hypothetical WG chair if I was
his (or her) attorney, you didn't make it clear if I was actually an
attorney for Cisco giving him advice as a Cisco employee or if he hired me
in his individual capacity.  Either way, we are way off topic at this point.

Calhoun "Reb" Thomas

-----Original Message-----
From: Lawrence E. Rosen [mailto:[email-masked]]
Sent: Friday, February 21, 2003 1:39 PM
To: 'Reb Thomas'; 'Russell Nelson'; [email-masked]; [email-masked]
Subject: RE: IETF RAND policy

Reb,

/Larry Rosen

---

From: Keith Moore <[email-masked]>
Date: Sat, 22 Feb 2003 16:33:59 -0500

On Fri, 21 Feb 2003 17:04:34 -0500

> the 1970s.  I view both the FSF and the IETF as major early participants

the idea of open source actually goes back much farther than that, to the
days when card decks, mag tapes, and paper tapes were freely swapped among
institutions with similar kinds of computers.  open source predated 
closed source much as folk music predated commercial music.

Keith

---

From: "Steven M. Bellovin" <[email-masked]>
Date: Sat, 22 Feb 2003 17:18:31 -0500

>closed source much as folk music predated commercial music.

Folks, this discussion is off-topic and prone to rathole.  Let's stop 
it now -- we have enough to say that's on-topic and controversial.

		--Steve Bellovin, http://www.research.att.com/~smb (me)
		http://www.wilyhacker.com (2nd edition of "Firewalls" book)

---

From: John C Klensin <[email-masked]>
Date: Sat, 22 Feb 2003 17:21:14 -0500

--On Saturday, 22 February, 2003 16:33 -0500 Keith Moore 
<[email-masked]> wrote:

>> > The Free Software Foundation is part of the free software
>> > movement, which has built the free software community since
>> > 1984.  The open source movement, started in 1998,
>> > contributes to our community today.
>>
>> That's Richard's view.  Mine is that the open-source movement
>> was *named* in 1998, but started much earlier than that --
>> arguably as far back as the 1970s.  I view both the FSF and
>> the IETF as major early participants in this movement.
>
> the idea of open source actually goes back much farther than
> that, to the days when card decks, mag tapes, and paper tapes
> were freely swapped among institutions with similar kinds of
> computers.  open source predated  closed source much as folk
> music predated commercial music.

Keith,

Yes, but your "predated" comment may be a little hyperbolic.  In 
many cases, those cards and tapes contained binaries, not source 
(although, in many others, source was included).  More 
important, in the first generation of the type of swapping to 
which you refer, applications were being swapped, but those 
applications often ran only on very proprietary, 
bundled-with-the-hardware, operating systems and utilities.  Was 
there "open source" around before there were [commercial] 
operating systems?  Possibly, but I'm not old enough to remember 
-- if you go back that far, the number of institutions around 
with compatible computers was not very large.

     john

---

From: Keith Moore <[email-masked]>
Date: Sun, 23 Feb 2003 00:26:40 -0500

Eric,

Hey, you're the one who trademarked the term - I'm not going to argue with
you about what it means.  My point was only that the idea of sharing code
without compensation for mutual benefit is not a new idea - it goes back
to the dawn of computing.  You and John are both correct that uniformity of
programming interfaces (making it possible to write portable code) and 
computer networking have made this much more feasible than it was in the past.

Keith

---

From: Brian E Carpenter <[email-masked]>
Date: Mon, 24 Feb 2003 09:57:56 +0100

Especially since our current work item is clarifying
current policy, not adjusting it. Changing the language
in draft-ietf-ipr-technology-rights- significantly would amount
to adjustment; further tuning of draft-ietf-ipr-wg-guidelines-
seems more appropriate to me.

  Brian

---

From: "Eric S. Raymond" <[email-masked]>
Date: Sun, 23 Feb 2003 00:37:00 -0500

Keith Moore <[email-masked]>:
> you about what it means. 

Actually, we didn't succeed in trademarking it.  The USPTO rejected the 
attempt -- too generic.
-- 
		<a href="http://www.catb.org/~esr/">Eric S. Raymond</a>
_______________________________________________
Ipr-wg mailing list
[email-masked]
https://www1.ietf.org/mailman/listinfo/ipr-wg

---

From: "Eric S. Raymond" <[email-masked]>
Date: Sat, 22 Feb 2003 20:21:35 -0500

John C Klensin <[email-masked]>:
> >[the 1970s], to the days when card decks, mag tapes, and paper tapes
> [...] In many cases, those cards and tapes contained binaries, not source 

Indeed.  In my capacity as a historian, I have considered this matter
in some depth.  I *am* old enough to remember, I have supplemented
those memories with research, and I think John's objections are
cogent.  I would go further and add source code being routinely
exchanged *over a network* as a necessary condition for the existence
of an "open source" culture.

Why insist on this?  Because older methods (physical exchange of
tapes/disks etc.) had sufficiently high setup costs that their effect
on the way people did programming day-to-day was marginal.  We
couldn't systain anything like today's large decentralized projects
peer-review-centered development practice because the feedback loops
were too slow.

So even if computing environments had been sufficiently homogenous
to support it (which they weren't) and even if it had been routine to
pass around source code (which it wasn't) the *communications* 
infrastructure to support the open-source community did not come
into being until rather late.

It's tempting to put the open-source community's year zero in 1969,
the same year Unix and the ARPANET launched.  But not until ten years
later (when systems programming was routinely done in HLLs and FTP
sites began to overhaul archive tapes as the principal means of
software exchange) did anything recognizably like today's open-source
culture emerge -- around the early USENET, as it happens.  I had been
watching the hacker culture evolve since 1976.  USENET made a
difference because (unlike the ARPANET) it didn't have even
theoretical restrictions on who could use it.

A strong argument could be made that open-source development *practice*
began in 1984, the year Larry Wall released patch.  That was the tool
that made it possible for multiple diverging lines of development to
routinely *reconverge* -- essential to modern open-source development.

To sum up some critical dates:

1961 -- birth year of today's hacker culture (PDP-1 delivered to MIT)
1969 -- Unix and ARPANET launched.
1979 -- USENET launched.  Network software distribution begins to
        seriously displace schlepping physical media around.
1984 -- patch(1) invented

We can't properly say that 1961 was the birth of the open-source
culture, for reasons I've already gone into.  The spirit was
there, in some respects, but the technology to make it into a form
of practice recognizably continuous with modern open source
didn't exist.  That technology was born in 1969 but didn't mature
enough to enable a widespread change in practice until after 1979.  

I'd say 1984 is too late; I, personally, was already writing and
distributing open-source software in a recognizably modern way by
mid-1982 -- but at that time it *was* a rather novel thing to be doing.

I was hacking modes for Gosling Emacs, which dated from 1981.  I think
Gosmacs may well qualify as the first major project of the nascent
open-source community; it is the oldest piece of open-source code I am
aware of that has a continuous history of descendant usage to the
present (though it is possible that some of the earliest Berkeley Unix
stuff with descendant code still in use dates two or three uears
earlier, and I would cheerfully accept correction on this score)

I understand the urge to project open-source development further
back in time and onto other creative media, but I think that's
a form of romantic idealism that obscures the most interesting and 
characteristic features of the phenomenon.

In particular, I have very little patience for the myth that modern
open source represents a return to some Edenic age of open-source
innocence before IBM unbundled its operating system or Bill Gates
sent the hobbyists a nasty letter or whatever.  It *wasn't the same*
back then; with only minor marginal exceptions, we didn't have source 
code, we didn't have networks -- and, even if we had, we didn't 
know what we were doing!

Consciousness and culture make a difference.
-- 
		<a href="http://www.catb.org/~esr/">Eric S. Raymond</a>
_______________________________________________
Ipr-wg mailing list
[email-masked]
https://www1.ietf.org/mailman/listinfo/ipr-wg

---

From: "Jim Fleming" <[email-masked]>
Date: Tue, 25 Feb 2003 05:51:48 -0600

With all due respect...the open source movement was alive and well in the mid-70s.
People mostly sat in the same room at Bell Labs making the sneaker-net the means of exchange.
People did know what they were doing, and still do it to this day. They no longer have to sit in
the same room, because by the end of the 70's they (we) had deployed systems such as ihnss
to carry uucp traffic across the country. By that time, web browser technology was under development
with color graphics, sound, etc. The IBM PC was announced in August 1991, and set the world
back several years. The lack of leading edge graphics and audio in the early PCs spawned an entire
industry to fix those limitations. The lack of a real O/S spawned more companies to port Uni* to the
PCs, using open source from the mid 70's. By 1984, we had LAN-based telephones, running on
open source Uni* platforms. The Unir Project was started in 1982, and was documented in Dr. Dobb's
Journal. One of the early techniques attempted was to give everyone a view that they had their own
Uni* root (shades of current day UML - User Mode Linux). One of the flaws in doing that in the early
80's was a bug (feature) that allowed people to change directory out of their change rooted, walled-garden
file system. Open source allowed us to fix that, recompile and continue. People knew what they were
doing and still know what they are doing...between 1984 and 1992 people recognized the need to move
**away from the protocol point of view** to the **platform point of view**...you can see the difference
by drawing two sets of rectangles...in one case side by side with a line between them...and in the other
case above and below each other with lines showing what some call an API. In the protocol view, people
focus on the bits and formats of the exchanges of the side-by-side boxes and lose track of the services
and the functionality they are trying to provide...in the **platform view**...there is more of an emphasis
on what the layers provide...the O/S and micro-kernals and device drivers become more interesting...
...once the layering is worked out, a variety of protocols can be used to connect them...

....between 1984 and 1992...the shift to the platform point of view...also brought with it a shift to a focus
on **A Network of Communicating Objects** (Smalltalk...C++...C+@...Java...C#...C@T)...

...the I* society (small s...aka the Big Lie Society)...attempts to do ethnic cleansing...to rewrite history...
...good luck...

http://www.ddj.com/articles/1993/9310/
http://www.computer.org/software/so1991/s3073abs.htm
http://msdn.microsoft.com/net/ecma/

http://IPv8.no-ip.com
http://www.go-mono.com/
http://www.knoppix.com
http://www.netfilter.org
http://www.digium.com
http://www.asterisk.org
http://www.openss7.org
http://www.zapatatelephony.org
http://www.new.net
http://IPv8.dyn.ee

Jim Fleming
[email-masked] Consultant
http://www.Unir.NET
http://www.Unir.com
http://www.Uni%ae.com
http://www.Uni®.com

---

From: Scott W Brim <[email-masked]>
Date: Wed, 26 Feb 2003 12:16:02 -0500

Could we have a small discussion of Russ Nelson's suggested list of
preferred IPR states?  It would be nice to incorporate this or something
like it in the WG Guidelines draft.  I think it's pretty good, possibly
with minor edits.

..Scott

---

From: Russell Nelson <[email-masked]>
Date: Wed, 26 Feb 2003 13:29:58 -0500

Two suggestions from Bob Wyman:

Add:
   o Technology which has been publicly disclosed for more than 30
     months.

 > >     rules, and filing can follow up to one year after disclosure.

Change: s/in the public domain/publicly disclosed/ .  

 > >     complying with the standard.

Change: s/restricting/licensing/

---

From: "Bob Wyman" <[email-masked]>
Date: Wed, 26 Feb 2003 17:53:28 -0500

>Two suggestions from Bob Wyman
> Add:o Technology which has been publicly disclosed for 
> more than 30 months.
	To elaborate a bit:
	The one year period that Russell Nelson originally proposed is
based on the one-year limit on filing. Thus, after one year from
public-disclosure, you can ask people if they have filed any patents or
claims. If they say "no", then you know that the people you asked and
who answered will never be able to claim in the future. They can't say
"No" today and then file tomorrow unless they are lying... So, a denial
of claims after one year gives you some level of assurance that the
technology is unencumbered, but your level of assurance is limited only
to the group that you asked. Note: Even if you ask the person who made
the one-year old disclosure if they have filed a claim and they say
"No", there still might be someone else (a "junior" inventor) who DID
file a claim on the idea. Odd as it might sound, even in the US it is
possible to patent what may appear to be other people's ideas. (see: 35
USC 102: "In determining priority of invention there shall be considered
not only the respective dates of conception and reduction to practice of
the invention, but also the reasonable diligence of one who was first to
conceive and last to reduce to practice, from a time prior to conception
by the other.") Also, in countries that use "first to file" rather than
"first to invent" the problem is worse. I'll leave it up to the lawyers
to explain this mess, if needed.
	At the point that a method has been publicly disclosed for 30
months, you reach another distinct plateau in your ability to believe
that something is unencumbered since in many countries, most patent
applications must be published 18 months after filing. (30=12+18). Thus,
at the 30-month marker, you can inspect patent application databases
and, in theory, if you don't find an application covering the method,
you're probably ok. Now, before everyone jumps on this, I do recognize
that in the US, publishing can be delayed by forgoing filing in other
countries, and, I realize that a variety of other events can cause a
delay in publishing. However, as a general rule, one can start becoming
distinctly more comfortable with a particular method once it has passed
it's 30-month anniversary after public disclosure. (of course, 31 months
is better than 30, and 32 is even better. Nonetheless, 30 months is
*much* better than 29 or anything less and as such merits special
mention.)

	A question for the lawyers: In the US, it is only disclosure "in
this country" that is relevant to start the clock on filing. What
constitutes "in this country"? If a method is disclosed, in full detail,
on a web site in some foreign country and is accessible from a US web
browser, does that constitute "disclosure in the US?"

		bob wyman

-----Original Message-----
From: [email-masked] [mailto:[email-masked]] On Behalf Of
Russell Nelson
Sent: Wednesday, February 26, 2003 1:30 PM
To: [email-masked]
Subject: Re: IETF RAND policy

Add:

-- 
-russ nelson              http://russnelson.com | A government does
enough
Crynwr sells support for free software  | PGPok | wrong to offset what
it 521 Pleasant Valley Rd. | +1 315 268 1925 voice | does right.  Better
that
Potsdam, NY 13676-3213  | +1 315 268 9201 FAX   | it should do less.
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From: "Robert Barr " <[email-masked]>
Date: Wed, 26 Feb 2003 15:11:28 -0800

> browser, does that constitute "disclosure in the US?"

A printed publication anywhere in the world starts the one year  clock
under US law. 35USC102(b) The 'in this country' only applies to an offer
for sale or public use, not to a printed publication. Note that an oral
disclosure does not start the one year.