Subject: Licensing terms conditional on IESG approval?

From: Pekka Savola <[email-masked]>
Date: Sat, 19 Jul 2003 10:44:28 +0300 (EEST)

Hi,

When reading throught the ipr-template, the following struck me:

   This document is an IETF Patent Disclosure and Licensing Declaration
   Template and is submitted to inform the IETF of a) patent information
   regarding the IETF document or contribution listed in Section IV, and
   b) a Patent Holder's intention with respect to the licensing of its
   necessary patent claims upon approval by the IESG for publication as
   an RFC of the relevant IETF specification.

.. that is, any licensing terms given are subject to the IESG approval.  
This is what RFC2026 says too, of course.

My doubt is whether this may cause problems in implementations that happen 
prior to the IESG approval (as it's typically the case that IESG approval 
can take quite a while, and the world has changed so that everything is 
implemented before they get IESG approval).

Just bringing this up explicitly so that people might be able to give 
opinions (if any) on the subject.

-- 
Pekka Savola                 "You each name yourselves king, yet the
Netcore Oy                    kingdom bleeds."
Systems. Networks. Security. -- George R.R. Martin: A Clash of Kings

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Ipr-wg mailing list
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https://www1.ietf.org/mailman/listinfo/ipr-wg

---

From: Brian E Carpenter <[email-masked]>
Date: Tue, 22 Jul 2003 09:14:58 +0200

Pekka,

The IESG doesn't approve licensing conditions; it considers licensing conditions
as part of the process of approving standards track documents. That's quite
a difference. In fact, if the IESG finds the licensing conditions don't
meet the requirements of RFC 2026, the exit is to approve the document
as Informational or Experimental instead.

    Brian

---

From: Pekka Savola <[email-masked]>
Date: Tue, 22 Jul 2003 10:18:41 +0300 (EEST)

On Tue, 22 Jul 2003, Brian E Carpenter wrote:
> The IESG doesn't approve licensing conditions; it considers licensing
> conditions as part of the process of approving standards track
> documents. That's quite a difference.

Sorry for too confusing text; what I tried to say that:

 1) unless IESG approves the *specification*, the licensing terms given 
are null and void (even though they'd apply also for non-stds track 
publications), and

 2) you cannot implement an internet-draft without legal consequences 
until it has been approved by the IESG (because the license is not yet 
valid)

These may or may not be problems.

---

From: Brian E Carpenter <[email-masked]>
Date: Tue, 22 Jul 2003 11:39:58 +0200

> These may or may not be problems.

They are problems to be solved between the implementor and the
IPR owner. I don't see how anything the IETF writes down can
change this.

   Brian

---

From: "todd glassey" <[email-masked]>
Date: Tue, 22 Jul 2003 06:58:57 -0700

----- Original Message ----- 
From: "Brian E Carpenter" <[email-masked]>
To: "Pekka Savola" <[email-masked]>
Cc: <[email-masked]>
Sent: Tuesday, July 22, 2003 2:39 AM
Subject: Re: Licensing terms conditional on IESG approval?

> IPR owner. I don't see how anything the IETF writes down can

It doesnt, and the IESG/IETF may in fact become legally liable for any IP
damages that occur since it is then masquarading itself legally empowered to
say anything about the license.

---

From: "todd glassey" <[email-masked]>
Date: Tue, 22 Jul 2003 06:56:55 -0700

Pekka - There is some specific confusion here on the purpose of an
Internet-Draft. The I-D's are solicitation documenments specifically built
to introduce a technology to a WG for the purpose of forming a Vetting Team
for a Formal IETF Initiative. That means:

    1)    An ID is the first possible publishable document - that means 'it'
is the platform for the formal introduction of a concept officially to the
IETF. Starting a discussion regarding some idea on a list would be an
informal method of bringing something up at the WG level, but the filing of
the ID is a statement to the IETF as an organization. This is the subtle
disclosure difference here.

If you doubt ANY of this statement, look carefully at the RFC2026
document...

    2)    ID's are not referenceable because of this (but that is already
setup in RFC2026)

    3)    There is NO IP Disclosure need for any ID because of this, because
this "noticing" of the IETF is for the purpose of initial disclosure for
soliciting the creation of a WG and its the need of those suggesting that
the IETF start something with an initiative, that then the IP{ disclosure is
done as part of the RFC effort.
    4)    because of the "purpose" of the ID's, the publications People MAY
NOT REFUSE to publish any ID unless it violates charter issues (I.E. is
about new methods of making Tapioca Pudding)...

Now - then there is the real world,

    A)    where publishing even a ID has legal Intellectual Property issues
with it as well, so the release problems are the same for a ID and an RFC,
    B)    but they are not the same for WG Mailing List disclosures under
the 9th Circuit's ruling in the "Bazel v. Cremers". See the Ninth Circuit's
decision at: http://caselaw.lp.findlaw.com/data2/circs/9th/0156380p.pdf

So what that says - is that the IETF must publish all ID's submitted to it,
and that there is a formal release process needed for all submittals
(whether ID or RFC), but this also means that NO IP disclosure should be
required for an I-D at any level beyond the Release Document. It also says
that because some people just publish BCP's or other ID Documents for the
purpose of conversation and not for a initiative, that this release process
is so important.

What is missing is a Cease and Desist Process so that someone that has a
formal IP claim against something that the IETF has had disclosed to it, can
effect having the IETF stop that work. Without this, there is little hope of
resolving the larger morass of the release and noticing processes IMHO.

Todd Glassey

---

From: "Bob Wyman" <[email-masked]>
Date: Tue, 22 Jul 2003 17:26:54 -0400

Todd Glassey wrote:
> B) but they are not the same for WG Mailing List disclosures 
> under the 9th Circuit's ruling in the "Bazel v. Cremers".
	It's "Batzel v. Cremers" not "Bazel..."

On 6/25/2003, Todd Glassey wrote in:
http://www.ietf.org/mail-archive/working-groups/ipr-wg/current/msg01768.
html :
> TSG: Annnnngh - buzzers sound loudly, and I continue laughing 
> - Ahahahahaah - you cite the "Hitler's Niece's Artwork" case  
> Re - Bazel V. Cremers. OK, this is a case where someone published 
> a statement about "possibly stolen art" to a website and listserv 
> that was privately sent to them. So how is the IETF's process like 
> that? -it's not.

	I guess you've changed your mind and decided that "Batzel v.
Cremers" isn't quite so funny after all since you now seem to be
claiming that the case *IS* relevant to at least the WG Mailing Lists
and thus to the IETF process. It is nice to see that there is some
flexibility in the positions you take -- no matter how inflexibly you
may initially state them.

		bob wyman

---

From: Scott W Brim <[email-masked]>
Date: Wed, 23 Jul 2003 00:39:45 +0200

> This is what RFC2026 says too, of course.

This template wasn't supposed to cover all cases, just the main ones.
IIRC everyone we talked to said they wanted to disclose what they would
use *if* their technology were adopted.

---

From: "todd glassey" <[email-masked]>
Date: Tue, 22 Jul 2003 16:10:52 -0700

Bob - I never said that the 9th district Court's ruling was not relevant.
What I way saying was that the matter in the Bazel v Cremers matter was not
specific to Intellectual Properties, but rather commentary published about
the IP's (the paintings in this case)... and as such it was specific to
damages that may occur from false data (Liable/Slander) being published, and
that was all. But as I pointed out  this matter we are discussing would be
more akin to publishing the pictures themselves, rather than commentary
about them.

So how about for fun here lets look at this relative to the IETF. The IETF
may not have any problems with slander or liable in a matter such as this,
but neither this Court or any Court ever been hit with a Technical Standards
Agency publishing someone else's IP's and thus causing critical damages to
those parties, and that is the totality of what we are talking about here.
And look at the only standards processes and organizations it will have to
compare this damages claim to.

In closing this, this circumstance is a very different situation since we
are talking about tangible intellectual properties and not the public
persona of some protocol's warts. And yes I don't mind flexibility and I
don't mind being wrong either, growth and human experience is based on being
wrong... The issue is not learning from those wrongs.

Todd

----- Original Message ----- 
From: "Bob Wyman" <[email-masked]>
To: "'todd glassey'" <[email-masked]>
Cc: <[email-masked]>
Sent: Tuesday, July 22, 2003 2:26 PM
Subject: RE: Licensing terms conditional on IESG approval?

bob wyman

---

From: Pekka Savola <[email-masked]>
Date: Thu, 24 Jul 2003 23:18:03 +0300 (EEST)

Based on some off-list discussion, it may not have been clear what my
point was.

I'd phrase the problem as:

"IETF does not encourage IPR-holders to have their IPR terms apply to also 
documents which have not yet been approved by the IESG, which in turn 
might prevent people from implementing internet-drafts"
 
What I try to mean is that:

 - it is not sufficiently clear to the readers that even if an IPR-holder 
promised RF license, it doesn't apply until the spec is approved by IESG.

 - the IPR template and the policies do not seem to give enough 
possibilities for the case that someone would grant RF licenses even in 
the case that IESG had not yet approved the documents.

---

From: Pekka Savola <[email-masked]>
Date: Thu, 24 Jul 2003 23:15:35 +0300 (EEST)

> use *if* their technology were adopted.

I think we should more strongly advocate for the possibility of licensing 
even without formal adoption (yet), and also give the more useful option.

That way, the IPR holders will get aware that there are other ways too.

---

From: Scott Bradner <[email-masked]>
Date: Thu, 24 Jul 2003 21:21:44 -0400 (EDT)

> .. that is, any licensing terms given are subject to the IESG approval.  

that is not currently the case, nore is it planned to be the case
in any proposal I've authored

i.e. is is *not* up to the IESG to approve licensing terms - a IPR claiment
can state whatever terms they want to, including none  (there are *no* 
IETF approved terms and *no* IETF disaproved terms) and the WG can take
the terms, or lack of terms into account when they select technologies to
work on

if the template can be read as saying that the IESG gets to approve 
terms it should get fixed

Scott

---

From: Pekka Savola <[email-masked]>
Date: Fri, 25 Jul 2003 06:31:34 +0300 (EEST)

> terms it should get fixed

I've never said that IESG approves the licensing terms.

What I said is that any licensing terms are subject to the IESG approval.

Now that I read it "subject to approval" seems to have two meanings:  
"IESG approving the license" vs. "IESG approving the draft".  I'm
referring to the latter.

What I mean with that is that when the IPR holder chooses licensing terms, 
they are null and void *until* IESG has approved the document; IESG takes 
no stance on the terms.

---

From: Scott Bradner <[email-masked]>
Date: Fri, 25 Jul 2003 07:01:05 -0400 (EDT)

> they are null and void *until* IESG has approved the document; IESG takes 

that is up to the IPR claimant - they can say that the terms are not
valid until the IESG acts, until the RFC is published, until a stds track
RFC is published or not say anything at all - we (the IETF) do not
dictate this - (I fully expect that if the IPR claimant does not
say anything about when the terms become effective there is no reason
to think that there is any relationship to and IETF (or IESG) action

Scott

---

From: "todd glassey" <[email-masked]>
Date: Fri, 25 Jul 2003 06:57:04 -0700

Pekka - two points

1)    If licensing is required then it needs to be retroactively applied to
all previous efforts, which means that any for which licensing cannot be
obtained would need to have their IETF stats or standard stripped from
them... (try that and see if there is not legal action done...)

2)    That if licensing is required that the Licensing Terms should be all
clearly defined in the Copyright statement(s).  My feeling is that  making
the licensing part of a separate disclosure from the actual IP's themselves
brings into any number of legal issues about how they relate to one another
and whether there is any possibility of 'confusion' on the part of the
adopters such that they could claim damages against the IETF...

Todd Glassey

---

From: "Bob Wyman" <[email-masked]>
Date: Mon, 28 Jul 2003 13:09:41 -0400

Todd Glassey wrote:
> Licensing Terms should be all clearly defined in the 
> Copyright statement(s).  My feeling is that  making the 
> licensing part of a separate disclosure from the actual 
> IP's themselves brings into any number of legal issues
	Licensing terms and copyright are completely distinct issues,
covered by completely distinct law and thus should not be mingled. Doing
so creates tremendous opportunities for confusion. Copyright only
applies to a specific instantiation of an idea, communication, etc.
while licensing terms will generally apply to the method itself --
independent of its form. 
	The law of copyright is distinct from the law of patents, trade
secrets, etc. and the manner in which one interprets constraints on use
of copyrighted material is distinctly different from the manner in which
constraints on the use of other forms of IP are evaluated.
	It can only serve to confuse if copyright and licensing terms
are mingled.

		bob wyman

---

From: "todd glassey" <[email-masked]>
Date: Mon, 28 Jul 2003 11:56:19 -0700

Bob -

You are missing that the Copyright Statement in itself is a license to
republish the IPs and if the IETF is not the rightful owner of them then it
has a real problem. You might want to look at the recent ruling against
Network Solutions regarding its responsibilities for managing IP's because
if what the 9th Circuit had to say about them is right the IETF is dead meat
the first time someone sues it over IP issues therein. I will send it to you
and Jorge under separate cover.

Anyone else that wants a copy can write me offline and I will forward the
opinion to them as a PDF.

Todd Glassey

----- Original Message ----- 
From: "Bob Wyman" <[email-masked]>
To: "'todd glassey'" <[email-masked]>; "'Pekka Savola'"
<[email-masked]>; "'Scott Bradner'" <[email-masked]>
Cc: <[email-masked]>
Sent: Monday, July 28, 2003 10:09 AM
Subject: RE: Licensing terms conditional on IESG approval?

bob wyman

---

From: "Lawrence E. Rosen" <[email-masked]>
Date: Mon, 28 Jul 2003 14:37:24 -0700

Bob Wyman wrote:
> 	Licensing terms and copyright are completely distinct 
> issues, covered by completely distinct law and thus should 
> not be mingled. Doing so creates tremendous opportunities for 
> confusion. Copyright only applies to a specific instantiation 
> of an idea, communication, etc. while licensing terms will 
> generally apply to the method itself -- independent of its form. 
> 	The law of copyright is distinct from the law of 
> patents, trade secrets, etc. and the manner in which one 
> interprets constraints on use of copyrighted material is 
> distinctly different from the manner in which constraints on 
> the use of other forms of IP are evaluated.
> 	It can only serve to confuse if copyright and licensing 
> terms are mingled.

Huh?  What are you talking about?  "License" is a complete defense to a
claim of "copyright infringement" or "patent infringement."  Treating
these as entirely separate areas of law is like ignoring the role of
insanity in a criminal case.  

That's why standards organizations must have effective policies not just
about intellectual property but also about acceptable licensing terms
for that IP.

/Larry Rosen

---

From: "Bob Wyman" <[email-masked]>
Date: Tue, 29 Jul 2003 12:03:57 -0400

Lawrence E. Rosen wrote:
> Huh?  What are you talking about?  "License" is a complete 
> defense to a claim of "copyright infringement" or "patent 
> infringement."  Treating these as entirely separate areas 
> of law is like ignoring the role of insanity in a criminal case.  

	There are two issues here. One is the grant of copyright to the
Internet Society for the contributed document. The second issue relates
to the license which defines how the disclosed methods, etc. can be
used. These are very distinct issues and should be treated as such.
	As I read Glassey's comments, it appeared that he wanted to mix
the two issues together. That doesn't make sense.

		bob wyman

---

From: "Lawrence E. Rosen" <[email-masked]>
Date: Tue, 29 Jul 2003 09:45:39 -0700

Bob Wyman wrote:
> 	There are two issues here. One is the grant of 
> copyright to the Internet Society for the contributed 
> document. The second issue relates to the license which 
> defines how the disclosed methods, etc. can be used. These 
> are very distinct issues and should be treated as such.
> 	As I read Glassey's comments, it appeared that he 
> wanted to mix the two issues together. That doesn't make sense.

Nobody is granting a "copyright to the Internet Society for the
contributed document."  The copyright remains in the hands of the
original author.  

The Internet Society is being given a license.  The scope and conditions
of that license are all that matter.  

/Larry Rosen

---

From: "todd glassey" <[email-masked]>
Date: Tue, 29 Jul 2003 10:46:48 -0700

----- Original Message ----- 
From: "Bob Wyman" <[email-masked]>
To: <[email-masked]>; "'todd glassey'" <[email-masked]>;
"'Pekka Savola'" <[email-masked]>; "'Scott Bradner'" <[email-masked]>
Cc: <[email-masked]>
Sent: Tuesday, July 29, 2003 9:03 AM
Subject: RE: Licensing terms conditional on IESG approval?

TSG: Bob - NO they are not.

TSG: Bob - Yes it does. What I said is that the process of conveying the
Copyrights to ISOC is exactly "licensing for publications" the sent in
materials to the ISOC and under that definition this is indeed a core part
of the licensing model. In fact its so core to the licenising model that
without it NOTHING GETS PUBLISHED.  So what we have here is that in this
instance its the ISOC that is being licensed by the copyright application to
the submission.

TSG: By the way - the formal transfer of a license agains IP's for
consideration may in fact construe a contractual relationship and although a
num ber of the lawyers on this list are reticent to go this far I will.

TSG: Also there is another issue here and that is that since ISOC is being
licensed to publish this IP it makes sense that ISOC and the IETF as its
reception agent (Bailee) as as such directly culpable for doing the proper
diligence to make sure that all is what it is purported to be. Otherwise
there is no reasonable possibility (IMHO) that the IETF could skitter around
a damages claim based on what I characterize as its "Smoke and Mirror's"
release process.

Todd