Subject: I-D ACTION:draft-savola-ipr-lastcall-03.txt

From: [email-masked]
Date: Thu, 03 Jul 2003 11:29:13 -0400

A New Internet-Draft is available from the on-line Internet-Drafts directories.

	Title		: Mentioning Intellectual Property Rights Considerations
                          in Last Calls
	Author(s)	: P. Savola
	Filename	: draft-savola-ipr-lastcall-03.txt
	Pages		: 9
	Date		: 2003-7-3
	
This memo describes an additional policy with last calls regarding
Intellectual Property Rights (IPR) disclosures or other knowledge of
IPR.  The existence and the pointer to the IPR disclosures or an
indication of non-existence of knowledge of such disclosures must be
mentioned in all IETF last calls and should be mentioned in working
group last calls.  Additionally, all documents under the IETF change
control for which a last call prior to the approval was not required
and IPR disclosures are known, must now be either last-called or
rejected.  This memo updates RFC 2026 and RFC 2418.

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From: Pekka Savola <[email-masked]>
Date: Fri, 4 Jul 2003 15:42:57 +0300 (EEST)

FWIW,

I've updated the document based on comments (everything incorporated in 
some fashion or another).  The policies are slightly more flexible now.

Any issues left?
Is this something we could recommend e.g. the IESG to try out?

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

_______________________________________________
Ipr-wg mailing list
[email-masked]
https://www1.ietf.org/mailman/listinfo/ipr-wg

---

From: Scott W Brim <[email-masked]>
Date: Fri, 4 Jul 2003 10:21:26 -0400

> some fashion or another).  The policies are slightly more flexible now.

   If a verbal IPR disclosure has been minuted in a WG meeting, or an
   informal IPR disclosure has been made on an IETF mailing list, or
   other submission subject to the Note Well [NOTE] has been made,
   documents should not be last-called until a formal IPR disclosure has
   been made. If this does not occur within a reasonable time, this fact
   must be mentioned in the last call message.

I wonder about the center part, "or other submission subject to the Note
Well has been made".  We're talking about actions to be taken by the
working group or the IESG.  Whether something is subject to the Note
Well is decided by the contributor, which leads to some kind of
disclosure.  The working group can't decide if something is subject to
the Note Well without such a disclosure.  So you have already covered
everything the WG could act on, without including this clause.  

I guess you're trying to be clear that this applies to all knowledge of
IPR, not just the disclosures you list explicitly.  Perhaps, hmm ... "or
other submission subject to the Note Well [NOTE] has been made for which
it is generally known that there is related IPR ..."?

   rumormonging

rumormongering

That's all I have.

> Is this something we could recommend e.g. the IESG to try out?

We should certainly get their reaction.

..swb

---

From: Brian E Carpenter <[email-masked]>
Date: Fri, 04 Jul 2003 18:01:17 +0200

Pekka Savola wrote:
...
> Is this something we could recommend e.g. the IESG to try out?

Who's "we"? Since this looks like something outside the WG charter, the
route is probably an individual submission. But I think it is well worth
asking Harald what he thinks.

   Brian

---

From: "todd glassey" <[email-masked]>
Date: Fri, 4 Jul 2003 17:05:07 -0700

Pekka - lets talk a little walk here - the cut and pasted sections from your
document are the indented ones and my comments are on the left margin.

TSG: In the Intro:

   Additionally, all documents under the IETF change control (i.e. the
   author grants the right to create derivative works) for which a last
   call prior to the approval was not required and IPR disclosures are
   known, must now be either last-called or rejected.

TSG: The problem here is that anyone that already started their process had
a set of terms and conditions set forth for them at that time. There is
nothing in ANY documents that I have seen that say's "This standards process
is subject to change, and all terms and conditions for Standards are "soft"
in nature until such time as the initiative is actually submitted to the
IESG as a standard"...

TSG: No WG Chair, AD nor the IETF may changes the conditions on ANY
initiative already in process. Sorry, but them is lawsuit words. And I will
take anyone's money on that the IETF and its officers/operators loose  this
one too.

TSG: in SS2 -

TSG: OK - Why the should and not must? what SS2 needs to read like is:

    In order to qualify for Last-Call capability in the IETF a  IPR
   disclosure is required to proceed with the last call. If there are no
   known IPR claims then the IPR declaration of the authors would
   simply state that there are no known IP Rights issues with this
   initiative and a simple statement of the manner this was verified in.

   If a verbal IPR disclosure has been minuted in a WG meeting, or an
   informal IPR disclosure has been made on an IETF mailing list, or
   other submission subject to the Note Well [NOTE] has been made,
   documents cannot not be last-called until a formal IPR disclosure has
   been made to satisfy the concern raised as part of the organizations
   records. No initiative may be advanced to Last Call without some
   cursory IPR disclosure at the WG level and a formal one at the IETF
   or Standards Track Level.

TSG: ... and onward - I eliminated the first paragraph of 3. IPR disclosures
at some level are mandatory in my book for all initiatives entering into any
last-call's whether as part of the WG or the organization as a whole. The
formal IPR and licensing statement should only be necessary for the IETF
Last Call but certainly a cursory one is needed at the WG level because by
this time there is significant investment by many individuals who may be
stepping into a legal morass (or more importantly - they are being led into
this morass...)

3. Working Group Last Calls

   Working group last call, the chair(s) issuing the last
   call should also make a mention whether IPR concerns have been raised
   regarding the document, or whether no disclosures or other knowledge
   are known, as described in section 2.

   The reason why describing IPR issues in WG last calls is not
   mandatory is due to the assumption that most WG participants can be
   expected to be aware of the IPR of the technologies being worked on
   in the working group.

TSG: Hmmm - This is a very slippery legal premise and its really
unenforceable.

   However, everyone may not be fully aware of
   all the IPR in a WG, and IPR disclosures may have been made only
   recently after a participant has last looked at the IPR repository.
   Thus, it is strongly encouraged to include an IPR notice in all
   working group last calls.

TSG: yeah - OK, look this is way to complex and you don't need to justify
why your process is what it is so my take is a total rewrite on SS3 reducing
it to TWO (2) Paragraphs:

    When submitting an initiative for Last-Call at the WG level a topical
    statement of IPR and any concerns is to be created as part of the
    initiatives IETF Standards Portfolio. This document is a simple
    declaration stating the either there are no known IPR issues at
    that time, or that there are known IPR issues in the areas of... and
    then a listing of these areas.

    This statement can be qualified with a simple IP Search and a listed
    set of keywords. The search sites are to be the US Patent and Trade
    Mark offices online Websearch Tool, and the same for the Euro
    Patent Office.

And on to ss4 -

4. IETF Last Calls

   IETF Last Calls are mandatory for all standards track documents
   [IETF], whether for entering into, advancing within or removing from
   the standards track.

TSG: I have a fundamental disagreement with much of 4.1. It is more complex
rules that are easily twisted. What is needed is much more simple processes.

4.1. When to Have an IETF Last Call

   It has not been necessary to last-call Experimental and Informational
   RFC's which are products of a working group.

TSG: No, I disagree. Anything that is published in the form of any formal
initiative MUST have a IPR for it if the IETF is to be indemnified by the
process such that it would me held blameless.

   If such a document has
   known IPR, whether formally disclosed or not, an IETF last call must
   be executed in the similar fashion as with standards track documents
   [IETF].

   It has not been necessary to last-call non-WG Experimental or
   Informational RFC submissions going directly to the RFC Editor.  Some
   of these documents are not under the IETF change control, i.e., no
   rights to create derivative works are granted, or that only
   publication as an Internet-Draft is allowed; examples of such are
   proprietary protocols and republications of other Standards
   Organizations' documents.

TSG: Any document published with the ISOC copyright on it is a liability
here.

   When a document under the IETF change control is passed to the IESG
   for review, and the document has known (to the Area Director and the
   IESG in particular, but also in general) IPR, whether disclosed or
   not, an IETF last call must be executed in similar fashion as with
   standards track documents, or the IESG must propose that the RFC
   Editor not publish the document.

TSG: This is a complex and very dangerous process. If a IESG staffer failed
to "SUGGEST" or "PROPOSE" that the Editor not publish it, they would likely
bear direct liability in any damages. Further that there is no real
responsibility of the Editor to make sure that the document is fit for
publication is another serious liability.

   If the RFC Editor publishes such a document anyway,

TSG: See this is the point - How can the Editor publish this document. Are
they immune from the IETF's control here? if so then this whole effort is
pointless and will be seen for what it is, a song-and-dance effort at vapor
to protect the management of the IETF from their own acts. Sorry - but
that's how it is.

   the IESG must
   insert an appropriate IESG Note in the document, as described in
   [IETF], indicating the presence of IPR.

TSG: Which further brings up who manages the Editors, and if they can tell
the IETF's WG Chairs and AD's to get stuffed and that they are going to
publish the disputed IP's anyway, then how does the above sentence possibly
apply?

   Note that due to possibly different policies, the existence of IPR
   issues in e.g. IRTF RFC submissions may not be known at all if no IPR
   disclosures are made for such Internet-Drafts.

TSG: And now onto SS 4.2

4.2. The Contents of the IETF Last Call

   Any IETF Last Call must include an indication whether IPR has been
   disclosed or otherwise known, and if so, the pointer to the
   disclosure in the IPR repository, as specified in section 2.

   It is recommended that some additional information is also provided
   in the last call, as the readers of the IETF last call cannot be
   expected to know the details why the particular solution was chosen
   despite the known IPR.

   If a document is being removed from the standards track and is being
   replaced with something else, possible IPR disclosures with the
   latter should also be described in the similar fashion in the last
   call.

   The responsibility for filling the IPR parts of an IETF last call is
   with the shepherding Area Director [PROCED], but it is expected that
   in practice it's done by the working group chairs (if applicable) or
   document authors/editors.

TSG: OK - But the last paragraph needs to go. The AD's CANNOT be responsible
for any of the IP Filings or they will bear direct liability for any
failings. So the only possible solution here is that the AD's cannot advance
any initiative without proper IPR in place, but in all instances, the IPR
filing process and content MUST come from those submitting and petitioning
for the advancement of any initiative.

TSG: As to SS5 - REMOVE IT IN ITS ENTIRETY. It creates a set of loopholes
and makes this process of dubious value.

Todd

---

From: Pekka Savola <[email-masked]>
Date: Sat, 5 Jul 2003 08:44:05 +0300 (EEST)

On Fri, 4 Jul 2003, Scott W Brim wrote:
> disclosure.  

No: whether something is subject to the Note Well is *not* decided by the 
contributor, it's stipulated by the forum where the contribution is made.  
On WG meeting?  On WG mailing list?  To the IESG member acting as an IESG 
member?  All are subject to note well, whether the contributor wishes it 
or not.

> The working group can't decide if something is subject to

Note that such a contribution could be like: "we've been looking at this 
technology Foo, for which we have a few patents.  Stay tuned for 
disclosure".

Of course, nothing can be said about contributions subject to the note 
well when the contributor doesn't reveal the IPR encumberances before the 
formal disclosure..
 
> it is generally known that there is related IPR ..."?

What I'm really trying to say here is that "everything where the 
contributor must file disclosure anyway, but hasn't done it yet".

Do you have ideas how to make this a bit more clear?  (The proposition you 
made above kind of creates a circular dependency..)
 
> rumormongering

Thanks.

---

From: Pekka Savola <[email-masked]>
Date: Sat, 5 Jul 2003 08:47:37 +0300 (EEST)

> asking Harald what he thinks.

Well, I got the impression before that there was an interest to test this 
out informally when the document has reached a suitable level of 
stability, the membership of this WG (ie. which would be the Expert 
Reviewers) seems to have a rough consensus that is's OK.

All I'd like at this point is to get a feeling of folks whether this is 
good stuff or not.  Formally pursuing it would be a BCP through Individual 
submission (must make modifications to 2026 and 2418 which are BCP's).

---

From: Harald Tveit Alvestrand <[email-masked]>
Date: Sat, 05 Jul 2003 12:26:25 +0200

Formally, this is an independent submission, since it's not on the WG's 
charter.

But - I believe I said this before - the normal action of an AD when 
receiving an independent submission that clearly is related to the scope of 
an active WG is to remand it to that WG for review, where the chairs are 
allowed to try to schedule debate on it to where it won't interfere with 
the work of the WG.

So the net result - that the doc is discussed in the IPR wg - is exactly 
what we have now, and I approve of doing so if the WG chairs accept it.

After a little more discussion, I'd like to try the procedure as an 
"experimental procedure" - offhand, I don't read it as recommending 
anything the IESG isn't allowed to do now. (We do last-call Info and 
Experimental docs occasionally, but mainly as an attention-gathering 
device). Once we have seen a couple of times what happens if we do this, 
we'll have more information on which to base a decision to either edit it 
further or just push for BCP publication.

After Vienna...

            Harald

--On lørdag, juli 05, 2003 08:47:37 +0300 Pekka Savola <[email-masked]> 
wrote:

> good stuff or not.  Formally pursuing it would be a BCP through
> Individual  submission (must make modifications to 2026 and 2418 which
> are BCP's).
>
> --

---

From: Scott W Brim <[email-masked]>
Date: Sat, 5 Jul 2003 08:51:20 -0400

On Sat, Jul 05, 2003 08:44:05AM +0300, Pekka Savola allegedly wrote:
> > > I've updated the document based on comments (everything
> > > incorporated in some fashion or another).  The policies are
> > > slightly more flexible now.
> > 
> >    If a verbal IPR disclosure has been minuted in a WG meeting, or
> >    an informal IPR disclosure has been made on an IETF mailing list,
> >    or other submission subject to the Note Well [NOTE] has been
> >    made, documents should not be last-called until a formal IPR
> >    disclosure has been made. If this does not occur within a
> >    reasonable time, this fact must be mentioned in the last call
> >    message.
> > 
> > I wonder about the center part, "or other submission subject to the
> > Note Well has been made".  We're talking about actions to be taken
> > by the working group or the IESG.  Whether something is subject to
> > the Note Well is decided by the contributor, which leads to some
> > kind of disclosure.  
> 
> No: whether something is subject to the Note Well is *not* decided by
> the contributor, it's stipulated by the forum where the contribution
> is made.  On WG meeting?  On WG mailing list?  To the IESG member
> acting as an IESG member?  All are subject to note well, whether the
> contributor wishes it or not.

What I mean is, the "forum where the contribution is made" has the Note
Well rule, but has no way of knowing whether someone's contribution
requires disclosure or not, and cannot decide.  That is almost always
decided by the contributor (and rarely by a third party).  

Your text lists two kinds of disclosure, and then tosses in all
contributions subject to the Note Well.  How is it decided that one of
those contributions should hold up the last call?  The group can't do
that, because the group doesn't know whether there are relevant IPR
claims.  The contributor can.  But, if the contributor decides that
there is relevant IPR, he/she must make a disclosure.  Therefore, the
text about any "other submission" devolves into the text about
disclosure anyway -- and is thus unnecessary.

> > The working group can't decide if something is subject to the Note
> > Well without such a disclosure.  So you have already covered
> Note that such a contribution could be like: "we've been looking at
> this technology Foo, for which we have a few patents.  Stay tuned for
> disclosure".

That is already included under your first item, "verbal disclosure".
You don't need the extra text.

> well when the contributor doesn't reveal the IPR encumberances before
> the formal disclosure..

> > I guess you're trying to be clear that this applies to all knowledge
> > of IPR, not just the disclosures you list explicitly.  Perhaps, hmm
> > ... "or other submission subject to the Note Well [NOTE] has been
> > made for which it is generally known that there is related IPR ..."?
> 

But how can you know, unless they disclose? :-)

> Do you have ideas how to make this a bit more clear?  (The proposition
> you made above kind of creates a circular dependency..)

Eliminate the "other submission" clause?

..swb

---

From: "todd glassey" <[email-masked]>
Date: Sat, 5 Jul 2003 09:08:03 -0700

Harald - Here is the specific problem with your words here - "If the WG
Chairs Accept it"...

Working Group Chairs are servants of the IETF's processes and not its
political arbiters nor are the empowered to make any specific decisions as
to what a WG will and wont accept. Those are issues of consensus and nothing
less at this point. Otherwise - this is not anything near a standards
organization, unless its the "bribe the WG Chair" place...

This is the current lie that any number of WG Chairs have used to suppress
various initiatives, but in fact as far as I can tell there is nothing
specified as to what the WG Chairs will and wont or can and cannot accept
within their WG's in ***any*** parts of 2026 2223 or 2418 - so if its not in
one of these three RFC's then where is this enablement.

Todd Glassey
----- Original Message ----- 
From: "Harald Tveit Alvestrand" <[email-masked]>
To: "Pekka Savola" <[email-masked]>; "Brian E Carpenter"
<[email-masked]>
Cc: <[email-masked]>
Sent: Saturday, July 05, 2003 3:26 AM
Subject: Re: I-D ACTION:draft-savola-ipr-lastcall-03.txt

After Vienna...

            Harald

---

From: Pekka Savola <[email-masked]>
Date: Sat, 5 Jul 2003 20:24:23 +0300 (EEST)

> one of these three RFC's then where is this enablement.

Individual submissions are typically passed for Expert review.

It's up to the AD to decide what is the Expert Review body for the work.

If the WG chairs disagree that a document should not be reviewed there
(for whatever reasons), it will go in some other Expert Review body (e.g.
a few individuals directly, or what have you) [or something else].  End of
story.

Of course, there is the third option, a document being passed for Expert
Review, accepted as being reviewed, but the review being late or never
happening.  How much vigor in this kind of "effort for related,
non-charter documents" the WG chairs can give depends on various factors, 
which is practically what Harald is referring to, I think.

Also note that it's within WG chairs' power (given by RFC2418) -- at least
until/if Expert Review is officially initiated -- to limit and disallow
off-topic, off-charter discussions like ipr-lastcall (even those which by
looser definition could be considered to be on-topic) if they see it
blocking the on-topic, on-charter work.

---

From: "todd glassey" <[email-masked]>
Date: Sat, 5 Jul 2003 13:31:36 -0700

Pekka
----- Original Message ----- 
From: "Pekka Savola" <[email-masked]>
To: "todd glassey" <[email-masked]>
Cc: "Harald Tveit Alvestrand" <[email-masked]>; "Brian E Carpenter"
<[email-masked]>; <[email-masked]>
Sent: Saturday, July 05, 2003 10:24 AM
Subject: Re: I-D ACTION:draft-savola-ipr-lastcall-03.txt

> Individual submissions are typically passed for Expert review.

Which has the interesting and chilling effect of making the AD personally
and professionally liable for any damages that anyone suffers becuase of
their actions (in a financial sense, and their sponsors also) ... Any
Director's style insurance that would cover one from the ISOC will likely
not cover any acts construed to be adversarial to any initiave. What I am
saying here is that the IETF management needs to ask the ISOC where the
envelope of coverage ends since they have a legal responsibility to
represent the actual financial and operational risk to anyone that
participates in their management.  anything less is negligent.

Sorry about that last paragraph as it is clearly off topic.

> It's up to the AD to decide what is the Expert Review body for the work.

See? - Now its clearly the AD's fault.

> a few individuals directly, or what have you) [or something else].  End of

Why do the WG's Chair(s) have anything to say about whether a document is
reviewed. The process needs to specifiy that, not any of the Management of
the IETF.

No more  #$%^&*(  arbitrary anything!

> which is practically what Harald is referring to, I think.

Aggggggghhhhhh - No Arbitrary processes anywhere - this is a standards
organization not a Union Hall.

> blocking the on-topic, on-charter work.

Pekka - lets not start the 2418 debate here - its not germane to this
discussion.

---

From: Pekka Savola <[email-masked]>
Date: Tue, 8 Jul 2003 09:23:39 +0300 (EEST)

> disclosure anyway -- and is thus unnecessary.

No, it's not unnecessary.  The paragraph is targeting the case when formal 
disclosure has not been made, but some other form of disclosure has been.

I thought it was self-evident that unless you've heard that a contribution 
has IPR claims, you cannot make any assumptions on whether it has any (and 
thus, in this context, only contributions which have had some form of 
disclosure are interesting).

I think the confusion is about the word "disclosure"; sometimes it's used 
for the formal disclosure, and sometimes about any disclosure.  I tried to 
avoid its use in this paragraph.  "Contributions subject to the Note Well" 
obviously meant "Contributions subject to the Note Well, of which some 
form (even informal) of disclosure has been made".

> You don't need the extra text.

No: what if someone forgets to add the verbal disclosure in the minutes?  
What if it's made outside of the WG meeting but still under a condition 
subject to the note well? (e.g. addressed to the IESG)
 
> But how can you know, unless they disclose? :-)

Sure.
 
> Eliminate the "other submission" clause?

The two cases listed (minuted in a meeting or IETF mailing list) seem to
be the two most common cases of Note Well, but an incomplete list
regardless (http://www.ietf.org/overview.html) -- could be used for
loopholes.  I'd prefer to have it all there.  Is there a way to make it
clearer?

---

From: "todd glassey" <[email-masked]>
Date: Tue, 8 Jul 2003 06:44:13 -0700

There is another issue with Note Well and that is a large one of what
constitutes a formal IETF technologies portfolio. And how the Note Well
additions and any vetting that takes place on the lists are captured for
that effort.

Todd

---

From: Scott W Brim <[email-masked]>
Date: Tue, 8 Jul 2003 10:09:53 -0400

On Tue, Jul 08, 2003 09:23:39AM +0300, Pekka Savola allegedly wrote:
> "Contributions subject to the Note Well" 

Oh.  Then, how about adding a little text to the middle of the
paragraph?

  If a verbal IPR disclosure has been minuted in a WG meeting, or an
  informal IPR disclosure has been made on an IETF mailing list, or some
  form of disclosure has been made on any relevant submission subject to
  the Note Well [NOTE], documents should not be last-called until a
  formal IPR disclosure has been made. If this does not occur within a
  reasonable time, this fact must be mentioned in the last call message.

> The two cases listed (minuted in a meeting or IETF mailing list) seem
> to be the two most common cases of Note Well, but an incomplete list
> loopholes.  I'd prefer to have it all there.  Is there a way to make
> it clearer?

Right.

---

From: "todd glassey" <[email-masked]>
Date: Tue, 8 Jul 2003 07:20:39 -0700

I would take it farther and say that if there is a NW'd IPR statement that
there can be no LAST CALL until an IPR declaration is submitted.

Todd

---

From: Pekka Savola <[email-masked]>
Date: Wed, 9 Jul 2003 13:59:37 +0300 (EEST)

Todd,

Thanks for comments.  Unfortunately, our views on the fundamental IETF
procedures (including but not limited to IPR) seem to differ so much that
I don't think it is possible to incorporate your view in the document.  
If the view would become more prevalent in the IETF and the IPR WG, I
would try to work on them at more length.

---

From: Pekka Savola <[email-masked]>
Date: Wed, 9 Jul 2003 14:06:36 +0300 (EEST)

>   reasonable time, this fact must be mentioned in the last call message.

Excellent choice of words.  Incorporated.

Thanks,

---

From: Pekka Savola <[email-masked]>
Date: Wed, 9 Jul 2003 15:58:00 +0300 (EEST)

On Wed, 9 Jul 2003, todd glassey wrote:
> Then my only choice is to create a competitive document. Wouldnt you think?

No problem with that.

---

From: "todd glassey" <[email-masked]>
Date: Wed, 9 Jul 2003 05:44:09 -0700

Pekka -

---

From: "todd glassey" <[email-masked]>
Date: Wed, 9 Jul 2003 06:18:33 -0700

Actually I was working on a two pager to define Fair and Open...

Todd