Subject: Fw: IETF's status as a Bailee...

From: "todd glassey" <[email-masked]>
Date: Tue, 29 Jul 2003 07:34:48 -0700

Folks I am posting this in response to a retort from Jorge about whether I
felt this to be important or not, see Jorge's response at the bottom of
this -

So... there is a question under the current definitions of the term "Bailee"
(see Pg 95 Blacks Law Dictionary, Centennial Edition)  as to whether the
IETF is in fact a Bailee or rather ISOC is the Bailee here. A Bailee is
essentially a contract term for the person that receives the goods of
services from another for some considerations...

The reasoning is as follows:

    1)    The IETF cannot and will not exist without the breadth and content
that represents the standards its proffers.

That is to say the IETF itself is the direct benefactor of having a Library
of Standards and a Process to submit and advance them. Therefore, to the
IETF, each submittal has value whether its published or not. In this
instance, the conveyance of the publishing rights to ISOC constitutes the
transfer of this value from the submitter to the receiving party (the ISOC).
The net of this is that the filing of ANY piece of IP with the IETF is a
beneficial directly to the IETF as a PSO... Making the IETF the direct
beneficiary of the IP's... My take is that under contract law this makes the
IETF formally the Bailee... Which brings us to a couple of questions about
whether the current boiler plate is actually enforceable.

The basic concern is that since the IETF is critically benefited by the
filing of IP's into its portfolio, that there is a mutually beneficial
relationship codified in the IETF's processes creating what really is
probably an enforceable contract between the Submitter and the IETF.  This
is a VERY serious statement since the boilerplate of the ISOC copyright and
the "we don't have to publish anything submitted" text is more than probably
a problem as well under this operations theory.

    2)    It also follows that if the IETF is the beneficiary - then I would
say that it may in fact NOT refuse to publish ANYTHING that it has proper
release for, or it has committed restraint of trade development since these
standards are critical under most all folks viewpoints for developing their
Networking products... and this is especially true if you follow the Food
Chain all the way up to the NTIA and the ICANN/ISOC relationships since
without the US Government contract these org are both toast.

    3)    So now that we have gotten beyond whether there is or is not a
contract in play here, I am saying now that  there is potentially a tort
damage that the Submitter can experience if the IETF refuses to publish
their work for ANY reason...

Likewise this also directly effects the release process since there is a
contract and beneficial relationship to both parties. So If there is in fact
a contract created between the submitter and the IETF by the conveyance of
the IP's to the ISOC as is stated in the ISOC copyright, then ISOC itself is
at fault for any IP disasters wherein IP's were wrongfully submitted or were
submitted by someone not have the legal rights to do so.

So once that theory is laid out - the next question here is who pays the
bill??? - and to answer that, I point you to the judgment from the 9th
Circuit Appellate ruling in the Kremen V Cohen, NSI,  et al. Matter - (DC
No. CV-98-20718-JW) for review because I predict that like NSI, the IETF and
several of its core sponsors will be held liable the first time someone sues
it under any sane complaint stating restraint of trade and possibly
antitrust depending on who inside the IETF is sued.

it is my feeling that this would  forever change the IETF but do so by court
order and not something that this list or POISED will have anything to say
about. And most of all of this because the IETF refuses to put in place any
kind of real release process for the filing of a document, it will not be
able to weasel out of responsibility here...

If I was the ISOC and IESG, I would be reading the writing on the wall here
as something similar to "Mene Mene Tenkel Upshrm" because there is a glove
floating 40 feet in the air here carving these letters into the stone
edifice that is the IETF submissions process.

Just my two cents.

Todd Glassey
----- Original Message ----- 
From: "Contreras, Jorge" <[email-masked]>
To: "todd glassey" <[email-masked]>
Sent: Tuesday, July 29, 2003 6:37 AM
Subject: RE: IETF's status as a Bailee...

Todd -- please post to the IP WG list if you think the question is relevant
to the discussion.  Jorge

-----Original Message-----
From: todd glassey [mailto:[email-masked]]
Sent: Monday, July 28, 2003 10:45 PM
To: Contreras, Jorge
Subject: IETF's status as a Bailee...

So Jorge, would you categorize the IETF as a bailee under the definition in
Blacks?

Todd

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From: "Michael Froomkin - U.Miami School of Law" <[email-masked]>
Date: Tue, 29 Jul 2003 14:30:40 -0400 (EDT)

Anyone who relies on Black's for their legal opinions is doomed.  I always
tell my students not to buy one -- just use a Webster's New World.  If the
word isn't there, you need more than a dictionary to understand it.  

Bailments traditionally, and almost inevitably in modern practice, are
restricted to *tangible* goods.  In pretty much all cases, a bailee is
someone who holds something with the idea they should give it back later
(e.g. a storage company).

Nothing to do with the IETF, folks, move along.

On Tue, 29 Jul 2003, todd glassey wrote:

[an enormous amount of legal-seeming rubbish]

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