Subject: Todd Rips V10 of the IPR Rights draft

From: "todd glassey" <[email-masked]>
Date: Tue, 1 Jul 2003 14:32:25 -0700

Thanks Ole - what I was really concerned about is that the new drafts in
IPR-WG that are last called do not address these issues either.  And my
apologies to you here for the length of this rant and to Scott too since I
am carving one of his 'children' up herein...

IPR-Technology Rights v10 is what I am referring to:

    1)    its general policy 3.1 starement cleary sets the bar height by
stating " In all matters of Intellectual Property Rights, the intent is to
benefit the Internet community and the public at large, while respecting the
legitimate rights of others." - So the first question is one of "which has
greater import - the creation of Internet Standards or the IP rights of the
individuals and entities that would be set aside in favor of the Internet
Standards being more important?

As an observation, if the real issue here is to respect people an
dindviduals IP rights, then some formal set of contingency plans need to be
designed for deactivating and recalling something wrongly published.
Otherwise the IETF cannot possibly absolve itself of liability for setting
up a "loaded gun" and then handing it to anyone that anonymously walks by...

    2)    ss 3.2 is equally humerous from my perspective since we are
clearly all aware that under US Copyright Law any submission that was done
under contract to or as a course of employment for belongs to the employer
and not the submitter actually emailing it is.  In fact there is nothing to
even imply here that any knowledge from the actual IP owners went into the
process at all and that is a serious liability I think.
---
The section's excerpt  follows
---
3.2. Rights and Permissions
3.2.1. All Contributions
By submission of a Contribution, each person actually submitting the
Contribution, and each named co-Contributor, is deemed to agree to the
following terms and conditions, on his or her own behalf, and on behalf of
the organizations the Contributor represents (if any) when submitting the
Contribution.
(A). The Contributor represents that he or she has made all disclosures
required by Section 6.1.1 of this document.
(B) The Contributor represents that there are no limits to the Contributor's
ability to make the grants, acknowledgments and agreements herein that are
reasonably and personally known to the Contributor.
(C). If the Contribution is an Internet-Draft this agreement must be
acknowledged, by including in the "Status of this Memo" section on the first
page of the Contribution, one of the statements in Section 4.2 of [IETF
SUB].
---
End of Excerpt
---

in continuing my commentary - SS 4 has some equally humerous lines including
in sub-section  (c) where we find the following (excerpt):
---
(C) The IESG disclaims any responsibility for identifying the existence of
or for evaluating the applicability of any IPR, disclosed or otherwise, to
any IETF technology, specification or standard, and will take no position on
the validity or scope of any such IPR claims.
---
So let me ask you a question - how does the IETF's saying "our management is
not responsible for anything" make it so? - the asnwer is publishing a
statement like this is an invitation to a lawsuit and is just not smart
business IMHO.

The IETF and IESG have already had on their corporate sponsor's website
(ISOC) a statement that they are responsible for ensuring the fitness for
publication, so now the only question is whether it is reasonable for a
standards organization to have to do some form of formal diligence on what
they recieve... And the asnwer in this case is YES, or so I believe.

And now on to 4.1 - the excerpt follows:
---
4.1 No Determination of Reasonable and Non-discriminatory Terms
The IESG will not make any explicit determination that the assurance of
reasonable and non-discriminatory terms or any other terms for the use of an
Implementing Technology has been fulfilled in practice. It will instead
apply the normal requirements for the advancement of Internet Standards. If
the two unrelated implementations of the specification that are required to
advance from Proposed Standard to Draft Standard have been produced by
different organizations or individuals, or if the "significant
implementation and successful operational experience" required to advance
from Draft Standard to Standard has been achieved, the IESG will presume
that the terms are reasonable and to some degree non- discriminatory. Note
that this also applies to the case where multiple implementers have
concluded that no licensing is required. This presumption may be challenged
at any time, including during the Last-Call period by sending email to the
IESG.
---
End of excerpt
---

So I have to ask - If the IETF will not enforce the issues regarding
licensing then why have an IP and IPR requirement at all? Seems like a
larger waste of time for what limited value it provides.

and now to SS5 - so this is another 2K bytes of boiler plate to protect the
IETF from having to keep the same publications standards that virtually all
other standards orgs and processes have long since embraced. But this will
only be applied to documents for which there is an IPR disclosure on file.
So now I have to ask "OK what does that mean" - In the obvious case - RFC's
regarding the specific technologies would be included - but is this the
limitation of it...

Say for instance that I write a RFC and this is submitted with references to
another IPR disclosed RFC. Does my submittal also need the boailer plate
because it refercences that already disclosed technology?

And let me ask the really expensive question here - and that is whether
there is any obligation of the IESG or the RFC editors to corss corelate the
publications with like IP's possibly disclosed or not? Becuase that is a
major can of worms and would raise the cost of operations for the RFC
Editors astronomically - but seems to be unavoidable to some extent - any
comments regarding this are welcome in cluding "get stuffed" or more
obnoxious ones.

Meanwhile back at the rant -  So once past that we get to SS 6.2 which talks
about timliness of the publications as though it was a request... hey you
know that you were supposed to declare this all up front... and the obvious
response is that if it is not mandatory why talk about it at all.  This
creates a total walk-away loop hole in the IPR process so why do it?

And we then come to Sestions 6.3 and 6.4 which also both have problems. For
6.3, listing the instructions in a separate document means that anything
that also constrains or is made dependant by those instructions would also
have to be in that document, and for that reason those instructions must be
a part of 6.3 rather than being pointed to it... and to further substantiate
this SS 6.4 starts to define the content of the disclosure, so do we look to
6.4 or to the IPR instructions which should also contain the exact same data
one would think.

6.5 is equally convoluted in that it talks to the needs of the WG's to have
prompt and early disclosure of IP land mines so that they can be avoided.
the problem is that it and ss  7 makes this totally optional and only a
recommendation and as such unenforcable in general

But the really funny part of this is the SS7 "failure to disclose" section
as indicated below:

---
7.0 Failure to disclose
There are cases where individuals are not permitted by their
employers or by other factors to disclose the existence or substance
of patent applications or other IPR. Since disclosure is required
for anyone submitting documents or participating in IETF discussions,
a person who does not disclose IPR for this reason, or any other
reason, must not contribute to or participate in these IETF
activities with respect to technologies that he or she reasonably and
personally knows to be Covered by IPR which he or she is not
permitted to disclose. Contributing to or participating in IETF
discussions about a technology without making required IPR
disclosures is a violation of IETF process.
---

So what happens becuase of this failure - someone's hand is slapped? the
materials are pulled from circulation, the person is suspended. Sorry - none
of that - in fact from this document NOTHING HAPPENS.

----- Original Message ----- 
From: "Ole J. Jacobsen" <[email-masked]>
To: "todd glassey" <[email-masked]>
Cc: <[email-masked]>
Sent: Tuesday, July 01, 2003 1:04 PM
Subject: Re: proposed text for updated ISOC Copyright Statement - generic
flaws in the IETF's ISOC copyrigtht statement.

> I believe the IP (as in Intellectual Property) issues are covered
> elsewhere, in particular the "note well" handouts at IETF meetings,
> but there may be an argument to combine these two efforts in some
> way.
>
> Recalling published documents is of course, as you say, impossible, but we
> do have a fine tradition of issuing documents that "obsolete" previous
> versions, not that this may be in adeqaute when "the cat is out of the
> bag".
>
> The real question is one of mechanism, intent, language and legal
> requirments in the context of technical standards or pre-standards.
> My previous point was that we hired lawyers to take care of this
> particular issue since "legal" is outside the scope of our expertise.
>
> So, I guess if the language does need changing, you'll need to get
> agreement from the IETF/Poised crowd as well as well as their "council".
>
> In which case, maybe poised *is* the place to discuss it, once again...
>
> Ole
>
>
>
> Ole J. Jacobsen
> Editor and Publisher,  The Internet Protocol Journal
> Tel: +1 408-527-8972   GSM: +1 415-370-4628
> E-mail: [email-masked]  URL: http://www.cisco.com/ipj
>
>
>
>
>

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