Subject: RE: IETF and an RF Patent Policy

From: "Lawrence E. Rosen" <[email-masked]>
Date: Wed, 19 Feb 2003 10:19:50 -0800

You asked for input on your proposed
draft-ietf-ipr-submission-rights-01.txt.  The following statements are
missing (or did I fail to find them?).  I'd be pleased to hear on-point
responses and suggestions for improved wording.  
/Larry Rosen

************************************

1. IETF shall not knowingly promote a Standard that requires for its
implementation a patent license unless that patent license is available
to all on RF Terms.

2. Every Contributor must disclose to an IETF working group on which he
or she participates any patents or patent applications the Contributor
reasonably believes read upon a Standard being proposed by that working
group.  This disclosure is not required if the Contributor offers to
license Necessary Claims in those patents to all on RF Terms.

3. Contributors shall be deemed to be agents of the Organizations that
pay their time and/or expenses for participation in IETF activities
leading to a Standard unless:
      a. The Contributor and Organization both certify that the
         Contributor does not participate within the Organization 
         on any activities or projects that may result in patents
         reading on the Standard; or
      b. The Contributor and Organization agree to license their
         Necessary Claims to all on RF terms.

4. "RF Terms" means that no royalty is sought for practicing Necessary
Claims to implement the Standard and no other license terms are imposed
that would prevent anyone from making, using or selling products
implementing the standard in proprietary, free or open source software.

5. "Necessary Claims" means those claims in issued patents that are
necessary to implement the Standard.

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---

From: Bill Manning <[email-masked]>
Date: Wed, 19 Feb 2003 10:44:27 -0800 (PST)

% 3. Contributors shall be deemed to be agents of the Organizations that
% pay their time and/or expenses for participation in IETF activities
% leading to a Standard unless:
%       a. The Contributor and Organization both certify that the
%          Contributor does not participate within the Organization 
%          on any activities or projects that may result in patents
%          reading on the Standard; or
%       b. The Contributor and Organization agree to license their
%          Necessary Claims to all on RF terms.
% 

	this bulletpoint seems in contravention of the claim that 
	the IETF is composed of natural entites, not legal ones. e.g.
	persons not corporations.  
	
	I would like a clarification from the vocal (and not so vocal)
	legal minds on this list.  Are the proposed IPR foundations based
	on US law or on International law?  Are there conflicts between
	US and International law regarding IPR issues?

--bill
Opinions expressed may not even be mine by the time you read them, and
certainly don't reflect those of any other entity (legal or otherwise).
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From: "Steven M. Bellovin" <[email-masked]>
Date: Wed, 19 Feb 2003 13:49:33 -0500

In message <00c401c2d843$7e64aa10$927ba8c0@ROSENGARDEN>, "Lawrence E. Rosen" wr
>responses and suggestions for improved wording.  

Sorry -- that's out of scope.  To repeat -- the current charter of the 
ipr working group calls for producing documents that clarify the 
current policy.  *After* that is done, and *if* there is a consensus to 
do so, the working group can seek to recharter to create a new policy.

>license Necessary Claims in those patents to all on RF Terms.

Patent disclosure is covered the the technology rights document, not 
the submission rights document.  There is language on this point in the 
technology rights document; clarifications to it (while staying within 
the current policy) are quite welcome (and are quite in scope), but 
aren't relevant to this document.
>         Necessary Claims to all on RF terms.

I'm not sure where this clause belongs, though I suspect that it's more 
suited to the technology document.

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

---

From: Harald Tveit Alvestrand <[email-masked]>
Date: Wed, 19 Feb 2003 20:01:06 +0100

Larry,

this is not language that belongs in submission-rights, which only deals 
with copyright issues, not patent issues.
if they are appropriate, they belong in technology-rights.

Reading the documents before commenting on them makes it much more likely 
that your comments will be listened to.

---

From: "Randy Presuhn" <[email-masked]>
Date: Wed, 19 Feb 2003 11:33:12 -0800

Hi -

> From: "Lawrence E. Rosen" <[email-masked]>
> To: <[email-masked]>
> Sent: Wednesday, February 19, 2003 10:19 AM
> Subject: RE: IETF and an RF Patent Policy
>

> responses and suggestions for improved wording.
...

Given the working group's charter, I'm not surprised that
those statements aren't in the draft.  The charter is very
clear where it says:

> If there [is] consensus of the working group for a different
> IPR policy than the one described in RFC 2026, the
> working group will seek to amend its charter to make
> it clear that it is changing the status quo.

Unless the charter is amended, I'd think inserting the
suggested statements would inappropriate.  This WG
was chartered to *clarify*, not *change* RFC 2026.

Randy

---

From: "Reb Thomas" <[email-masked]>
Date: Wed, 19 Feb 2003 14:38:21 -0500

My read on whatever small amount of consensus there is on this list is that
point 1. below is not the consensus.  It certainly seems that most agree
that standards should not include or implicate a patent, but it also seems
that quite a few want there to be some flexibility in this matter "for the
good of the Internet" - whatever that may be.

Also, point 1. speaks of not "knowingly" - a difficult standard when dealing
with one or two particular individuals, an impossible standard when dealing
with a large unincorporated association.  Further, the IETF adopts
standards - I don't think that it promotes them.  Finally, we have the
"shades of grey" debate regarding whether IETF, by adopting a standard, is
requiring one and only one implementation or whether implementation of the
standard is left up to the parties that elect to use the standard.  In many
cases there will be more than one way a standard may be implemented and
therefore the implementers will need to be responsible for their choices and
will need to study the possibility of patent infringement to whatever degree
they think is appropriate.  Joint action may even be possible to share
expenses once the anti-trust issues are properly addressed.

Even if there is only one implementation, it certainly may be a matter of
some debate whether such implementation does or does not infringe the patent
in question (until a court rules).  I have seen it stated that the IETF
makes no representations or warranties regarding its standards (caveat
emptor - buyer beware) yet the focus of point 1. below is to have the IETF
commit to a representation/warranty.  This is likely to be quite a
non-starter and would not have much meaning even if it was adopted since
recourse for breach would be against the unincorporated association.

Other views always welcome.  Your mileage may vary.

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: Wednesday, February 19, 2003 1:20 PM
To: [email-masked]
Subject: RE: IETF and an RF Patent Policy

---

From: "Reb Thomas" <[email-masked]>
Date: Wed, 19 Feb 2003 14:51:58 -0500

First I am not sure that there is anything that actually is "International
law" other than treaties and given the way treaties are negotiated, they
certainly don't constitute a body of law (the adage about sausage comes to
mind).  Ultimately laws are territorial.  US IP law doesn't control in the
UK or any other country and visa versa.  Certainly there are conflicts
between US laws and the IP laws of other countries, but there are several
efforts under way to reduce or harmonize the differences.  I think that it
is reasonably safe to say the in developing the policies we are discussing,
US law is frequently at the fore of the discussion but other countries are
certainly represented and active on this list.

Reb

-----Original Message-----
From: [email-masked] [mailto:[email-masked]]On Behalf Of
Bill Manning
Sent: Wednesday, February 19, 2003 1:44 PM
To: [email-masked]
Cc: [email-masked]
Subject: Re: IETF and an RF Patent Policy

--bill

---

From: Scott W Brim <[email-masked]>
Date: Wed, 19 Feb 2003 15:06:09 -0500

> good of the Internet" - whatever that may be.

That doesn't mean it won't be the consensus in the future, but let's get
this phase done first.

swb

---

From: "Reb Thomas" <[email-masked]>
Date: Wed, 19 Feb 2003 17:09:01 -0500

How will it be determined when a consensus is reached?

Reb

-----Original Message-----
From: [email-masked] [mailto:[email-masked]]On Behalf Of
Scott W Brim
Sent: Wednesday, February 19, 2003 3:06 PM
To: [email-masked]
Subject: Re: IETF and an RF Patent Policy

swb

---

From: [email-masked] (Bruce Perens)
Date: Wed, 19 Feb 2003 14:14:34 -0800 (PST)

From: "Reb Thomas" <[email-masked]>
> mind).

NAFTA comes to mind. It has its own court, with jurisdiction over the
U.S.

	Bruce

---

From: "Steven M. Bellovin" <[email-masked]>
Date: Wed, 19 Feb 2003 17:44:29 -0500

In message <[email-masked]>, "Reb Thomas" writ
>How will it be determined when a consensus is reached?

See Section 3.3 of RFC 2418.

---

From: "Reb Thomas" <[email-masked]>
Date: Wed, 19 Feb 2003 20:09:46 -0500

Since 3.3 says "It is left to the discretion of the working group chair how
to evaluate the level of consensus," I will ask the question in a slightly
different way.  How will the chair determine when a consensus is reached?

Calhoun "Reb" Thomas III
Thomas Law Firm

-----Original Message-----
From: [email-masked] [mailto:[email-masked]]On Behalf Of
Steven M. Bellovin
Sent: Wednesday, February 19, 2003 5:44 PM
To: Reb Thomas
Cc: Scott W Brim; [email-masked]
Subject: Re: IETF and an RF Patent Policy

In message <[email-masked]>, "Reb Thomas"
writ

---

From: "Lawrence E. Rosen" <[email-masked]>
Date: Wed, 19 Feb 2003 17:32:20 -0800

In W3C, "concensus" means "nobody voted no."  Abstentions are allowed.
/Larry Rosen

> From: [email-masked] [mailto:[email-masked]] On 
> Behalf Of Reb Thomas
> Sent: Wednesday, February 19, 2003 5:10 PM
> To: Steven M. Bellovin
> Since 3.3 says "It is left to the discretion of the working 
> group chair how to evaluate the level of consensus," I will 
> ask the question in a slightly different way.  How will the 
> chair determine when a consensus is reached?
> 
> Calhoun "Reb" Thomas III
> Thomas Law Firm
> From: [email-masked] [mailto:[email-masked]]On 
> Behalf Of Steven M. Bellovin

---

From: Keith Moore <[email-masked]>
Date: Wed, 19 Feb 2003 20:48:31 -0500

> In W3C, "concensus" means "nobody voted no."  Abstentions are allowed.

interesting, but not relevant here.
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---

From: Randy Bush <[email-masked]>
Date: Thu, 20 Feb 2003 10:55:03 +0900

> In W3C, "concensus" means "nobody voted no."  Abstentions are allowed.

and in the togolese nic it means the soup is cold.  so?

just what we needed, a denial of service attack by semi-clued
lawyers, brand new to the ietf, but who feel quite competent to
tell the ietf how it should work.  

the problem is that you will have the exact opposite effect of what
you probably intend.

please try to understand the ietf a bit before destroying some
years of work of those of us who are trying to get better ipr
policies and processes in our culture.

randy

---

From: Harald Tveit Alvestrand <[email-masked]>
Date: Thu, 20 Feb 2003 09:25:59 +0100

--On onsdag, februar 19, 2003 20:09:46 -0500 Reb Thomas 
<[email-masked]> wrote:

> Since 3.3 says "It is left to the discretion of the working group chair
> how to evaluate the level of consensus," I will ask the question in a
> slightly different way.  How will the chair determine when a consensus is
> reached?

He or she (or they) will decide, based on the number of people who appear 
to have understood the question and are in favour, the number of people who 
appear to have understood the question and are opposed, and the validity of 
the arguments presented on each side.

If a chair sees 100 people shouting "we want free beer" and 2 people saying 
"the production cost of beer is significantly higher than zero, so this 
model is not sustainable", he may be perfectly justified in not declaring a 
consensus for free beer.

OTOH, if 100 people say "I have read this specification and it is clear, 
implementable and valuable to the community", and there are 50 people 
saying "I do not want this specification adopted because the author is an 
idiot" or "my manager told me to block adoption of this specfication", he 
may be justified in declaring a consensus in favour of the specification.

Most consensus decisions are "obvious". The ones that are not .. are not.

The deliberately fuzzy definition of consensus is part of what makes the 
IETF both highly resistant to manipulation (there's no certain way to "pack 
a vote") and highly vulnerable to it (a corrupted WG chair who is good at 
hiding his biases can manipulate a lot (and one who isn't good at hiding 
them should get fired quickly...)).

There's always a tradeoff.

                 Harald

---

From: Brian E Carpenter <[email-masked]>
Date: Thu, 20 Feb 2003 12:09:24 +0100

European Union law often preempts national law in EU countries.

EU anti-trust law would certainly apply to many IETF
participants, for example.

   Brian

-- 
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Brian E Carpenter 
Distinguished Engineer, Internet Standards & Technology, IBM 
On assignment at the IBM Zurich Laboratory, Switzerland
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---

From: Brian E Carpenter <[email-masked]>
Date: Thu, 20 Feb 2003 12:27:27 +0100

"Steven M. Bellovin" wrote:
...
> suited to the technology document.

I think it's more fundamental than that. Now, I'm in no doubt 
that when I participate in the IETF (for example, by typing this 
message) I remain an employee of my employer. In fact, our internal
web site for IETF participants contains these words:

"Stick to engineering issues. You still work for IBM, but the IETF doesn't care."

Moving from this, to formal language about participants being agents,
is a **big** step, and clearly way outside this WG's charter. The 
clauses a. and b. are highly undesirable, but since they are also 
out of scope I won't waste more bits.

   Brian

---

From: D F <[email-masked]>
Date: Thu, 20 Feb 2003 08:59:36 -0500

On February 19, 2003 17:14, Bruce Perens wrote:
> NAFTA comes to mind. It has its own court, with jurisdiction over
> the U.S.
>
> 	Bruce

Except when the US chooses to ignore the tribunal's findings... ;-)

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

---

From: "Reb Thomas" <[email-masked]>
Date: Thu, 20 Feb 2003 10:22:53 -0500

Well said.

I just wonder how it will work with 10-15 people who each express their
opinions in similar but different ways for the left (completely RF), the
middle (generally RF, but w possible exceptions under conditions) and the
right (RF doesn't matter, only require RAND)?  Does the chair have to pick
an approximation of the 8-10 best articulated opinions and say that this is
what carries the day?  The reason I bring this up is I would like to see a
pathway to a decision (whatever it may be) rather than a never ending
torrent of e-mails.  I think that the problem this WG is facing is a part of
the much bigger structural problem that I think Harold, you may have
mentioned has a separate mailing list (something like IETF "problem
statement").  Solve the bigger issue and this one will fall into place in an
easier fashion.  Please don't get me wrong.  I think that the concept of
engineers debating the best ways to evolve the standards that the Internet
is founded on is excellent.  I also think that the same loose discussion
process will not likely solve the issues involved with companies and less
commonly individuals that own IPR that may or may not be argued to be
infringed by implementation activities that involve constantly changing
technology and standards.

Reb

-----Original Message-----
From: [email-masked] [mailto:[email-masked]]On Behalf Of
Harald Tveit Alvestrand
Sent: Thursday, February 20, 2003 3:26 AM
To: Reb Thomas; Steven M. Bellovin
Cc: Scott W Brim; [email-masked]
Subject: RE: IETF and an RF Patent Policy

                 Harald

---

From: "Steven M. Bellovin" <[email-masked]>
Date: Thu, 20 Feb 2003 10:28:38 -0500

In message <[email-masked]>, "Reb Thomas" writ
>technology and standards.

No doubt, it's not easy to assess consensus by email -- even though 
that's what our processes demand.  At the last IETF meeting, the 
overwhelming majority of the attendees were happy with the current IETF 
policy -- a clear consensus, but only of the people who happened to be 
in that room at that time.

---

From: "Reb Thomas" <[email-masked]>
Date: Thu, 20 Feb 2003 10:32:57 -0500

I agree - just as US Federal law often preempts the laws of the 50 US
states.  To the extent that the EU is looking more and more like a country
composed of member states, I view "International" law as something that for
example binds the EU and one or more countries on other continents.
Basically one can only point to treaties that are more agreement than law
since they cannot be imposed on a country.  As is proven on a regular basis,
these treaties can also be broken or ignored.  Certainly there are various
ways to punish countries that violate their treaty obligations but these
become quite political and subject to uncertain enforcement.  Quite
different than enforcement of US laws here at home.  I know that there are
some on this list that will insist that our US laws are enforced in a less
than perfect manner, but before they do so again perhaps they should
consider how laws are enforced in most other countries.  We are fortunate
here in the US to have an excellent (but not perfect) system of justice.

Reb

-----Original Message-----
From: [email-masked] [mailto:[email-masked]]On Behalf Of
Brian E Carpenter
Sent: Thursday, February 20, 2003 6:09 AM
To: [email-masked]
Subject: International law [Re: IETF and an RF Patent Policy]

   Brian

---

From: Keith Moore <[email-masked]>
Date: Thu, 20 Feb 2003 10:55:25 -0500

> right (RF doesn't matter, only require RAND)? 

it's fairly clear that there's no consensus that a change is needed.
not that this is even in scope at present.
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---

From: Bill Manning <[email-masked]>
Date: Thu, 20 Feb 2003 10:37:42 -0800 (PST)

having started this particular thread, I'll point out that there 
 are IETF participants from places outside the US & the EU.  How
 to the IPR regs in, say India or China stand up to their US/EU 
 counterparts?  If we craft IPR regs for the IETF based only on
 "western" precepts, will that marginalize the work we are trying
 to bring forth?
 
 (and yes, this is nominally a troll so feel free to ignore it)

% I agree - just as US Federal law often preempts the laws of the 50 US
% states.  To the extent that the EU is looking more and more like a country
% composed of member states, I view "International" law as something that for
% example binds the EU and one or more countries on other continents.
% Basically one can only point to treaties that are more agreement than law
% since they cannot be imposed on a country.  As is proven on a regular basis,
% these treaties can also be broken or ignored.  Certainly there are various
% ways to punish countries that violate their treaty obligations but these
% become quite political and subject to uncertain enforcement.  Quite
% different than enforcement of US laws here at home.  I know that there are
% some on this list that will insist that our US laws are enforced in a less
% than perfect manner, but before they do so again perhaps they should
% consider how laws are enforced in most other countries.  We are fortunate
% here in the US to have an excellent (but not perfect) system of justice.
% 
% Reb
% 
% -----Original Message-----
% From: [email-masked] [mailto:[email-masked]]On Behalf Of
% Brian E Carpenter
% Sent: Thursday, February 20, 2003 6:09 AM
% To: [email-masked]
% Subject: International law [Re: IETF and an RF Patent Policy]
% 
% 
% European Union law often preempts national law in EU countries.
% 
% EU anti-trust law would certainly apply to many IETF
% participants, for example.
% 
%    Brian
% 
% Bruce Perens wrote:
% >
% > From: "Reb Thomas" <[email-masked]>
% > > First I am not sure that there is anything that actually is
% "International
% > > law" other than treaties and given the way treaties are negotiated, they
% > > certainly don't constitute a body of law (the adage about sausage comes
% to
% > > mind).
% >
% > NAFTA comes to mind. It has its own court, with jurisdiction over the
% > U.S.
% >
% >         Bruce
% > _______________________________________________
% > Ipr-wg mailing list
% > [email-masked]
% > https://www1.ietf.org/mailman/listinfo/ipr-wg
% 
% --
% - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
% Brian E Carpenter
% Distinguished Engineer, Internet Standards & Technology, IBM
% On assignment at the IBM Zurich Laboratory, Switzerland
% _______________________________________________
% Ipr-wg mailing list
% [email-masked]
% https://www1.ietf.org/mailman/listinfo/ipr-wg
% 
% _______________________________________________
% Ipr-wg mailing list
% [email-masked]
% https://www1.ietf.org/mailman/listinfo/ipr-wg
% 

-- 
--bill

---

From: [email-masked] (Bruce Perens)
Date: Thu, 20 Feb 2003 11:05:33 -0800 (PST)

From: Bill Manning <[email-masked]>
> If we craft IPR regs for the IETF based only on
 
The issues we're discussing are less of a problem for China and India
because they are unlikely to accept software patenting. But since the
internet is international in nature, we have to craft policies to deal
with with the most pernicious legal environment in which there are real
customers.

These days national IP law can have extraterritorial power due to WIPO
and other treaties.

	Thanks

	Bruce

---

From: Bill Manning <[email-masked]>
Date: Thu, 20 Feb 2003 11:20:30 -0800 (PST)

% From: Bill Manning <[email-masked]>
% > If we craft IPR regs for the IETF based only on
% > "western" precepts, will that marginalize the work we are trying
% > to bring forth?
%  
% The issues we're discussing are less of a problem for China and India
% because they are unlikely to accept software patenting. 

	does that mean that a WG chair may be willing to reject
	the best ideas presented by indian/chinese contributors or even
	worse, that otherwise viable WG chairs may be rejected
	by the IESG due to legal, jurisdictional boundaries?

	that way lies maddness nee "perpetual employment act for lawyers"

--bill