Subject: Todd Rips Submission-Rights v6 - first pass ss1-5

From: "todd glassey" <[email-masked]>
Date: Wed, 2 Jul 2003 07:17:22 -0700

So since V6 is in last call - Scott - please forgive this bashing of the
"Sub mission Rights" Child v6...

lets start with I really love the definitions sections - they are awesome
(No Seriously I am using them in a set of documents myself.) And I would
suggest add these to the IETF's Glossary, as part of the "reserved
 words" definitions.

But... in SS2 we find:
---
Under the laws of most countries and current international treaties
(for example the "Berne Convention for the Protection of Literary and
Artistic Work" [Berne]), authors obtain numerous rights in the works
they produce automatically upon producing them. These rights include
copyrights, moral rights and other rights. In many cases, if the
author produces a work within the scope of his or her employment,
most of those rights are usually assigned to the employer, either by
operation of law or, in many cases, under contract. (The Berne
Convention names some rights as "inalienable", which means that the
author retains them in all cases.)
---
let me react to this paragraph - I disagree, in fact under US law which
legally is the only thing important since the ISOC and IESG are both US
corporations unless I am mistaken here... and if US law is the metric (sorry
rest of the World), then the issue is much more than what is painted herein.
The Work-For-Hire doctrine under US copyright law makes the work product of
the contractor or employee  automatically the property of the employer
unless specific other arrangements were made. So who is representing whom
here?

now back to the ss2 text

---
This document details the rights that the IETF requires in IETF
Contributions and rights the IETF, as publisher of Internet-Drafts,
requires in all such Drafts including RFC Editor Contributions. The
RFC Editor may also define additional rights required for RFC Editor
Contributions.
---

In response I have to say "aggghhhh - this violates the governance process
at the very least - the RFC Editor is not a setter-of-policy but a servant
to it."...and again - back to the SS2/3 text. These processes must stay in
poised to be part of the IETF Way...

---
In order for works to be used within the IETF Standards Process or to
be published as Internet-Drafts, certain limited rights in all
Contributions must be granted to the IETF and Internet Society
(ISOC).
---

OK Scott - this is totally reasonable but the IETF MUST use them if they are
submitted and this garbage about the publishing arm of the IETF having no
responsibility to publish the work is just that,  garbage.  I will get to
this in ss 3.5
as well but generally what I am saying is that:

The IETF solicits input in the form of technical standards initiatives, and
then with this boilerplate it say's "hey get screwed - we don't have to
publish anything you submit if we don't want to", so how is that either open
or fair? But the larger issue is that it is in my opinion an invitation to
be sued for Restraint of Trade and Conspiracy at the very minimum plus
possibly a tortuous interference count as well and while most all of the
lawyers on this list will probably say "that is not likely" the I bet that
the reality is that NONE of them will say its either out of the question or
is impossible considering the current state of lawsuits in US Courts.

the excerpt continues from ss2
---
In addition, Contributors must make representations to IETF
and ISOC regarding their ability to grant these rights.
---

OK but we just demonstrated that MOST all contributors do not have the legal
rights or releases to speak for their sponsors. So this requirement is
essentially impossible to fill with the existing process.

the excerpt concludes from ss3
---
These
necessary rights and representations have until now been laid out in
Section 10 of [RFC 2026]. In the years since [RFC 2026] was published
there have been a number of times when the exact intent of Section 10
---

OK Scott - but there is no "assignment" as alluded to herein as the rights
already belong to the Employer. This is one of the problems with the entire
architecture of the disclosure model. People that participate in the IETF as
part of their employment need formal releases to do so, and to date this is
just ignored. But sooner or later its gonna blow up.

So lets jump ahead to ss3.2  where we find:
---
3.2 Confidentiality Obligations
No information or document that is subject to any requirement of
confidentiality or any restriction on its dissemination may be
submitted as an Contribution or otherwise considered in any part of
the Standards Process, and there must be no assumption of any
confidentiality obligation with respect to any Contribution. Each
Contributor agrees that any statement in an Contribution, whether
generated automatically or otherwise, that states or implies that the
Contribution is confidential or subject to any privilege, can be
disregarded for all purposes, and will be of no force or effect.
---

So OK - this is all well and good if the submitter actually has these legal
rights but this is meaningless otherwise.

and now onto ss 3.3 where we find
---
3.3 Granting of Rights and Permissions
By submission of an Contribution, each person actually submitting the
Contribution, and each named co-Contributor, is deemed to agree to
the following terms and conditions, and to grant the following
rights, on his or her own behalf and on behalf of the organization
the Contributor represents or is sponsored by (if any) when
submitting the Contribution.

a.
To the extent that an Contribution or any portion thereof is
protected by copyright and other rights of authorship, the
Contributor, and each named co-contributor, and the organization
he or she represents or is sponsored by (if any) grant a
perpetual, irrevocable, non-exclusive, royalty-free, world-wide
right and license to the ISOC and the IETF under all intellectual
property rights in the Contribution.
(A) to copy, publish, display and distribute the Contribution as
part of the IETF Standards Process or as an Internet-Draft,
(B) to prepare or allow the preparation of translations of the
Contribution into languages other than English,
(C) unless explicitly disallowed in the notices contained in an
Contribution [as per Section 5.2 below], to prepare derivative
works (other than translations) that are based on or
incorporate all or part of the Contribution, or comment upon
it, within the IETF Standards Process, the license to such
derivative works to be of a scope no wider than the license to
the original Contribution, and
(D) to reproduce any trademarks, service marks or trade names
which are included in the Contribution solely in connection
with the reproduction, distribution or publication of the
Contribution and derivative works thereof as permitted by this
paragraph. When reproducing Contributions, the IETF will
preserve trademark and service mark identifiers in the format
used by the Contributor of the Contribution, including (TM) and
(R) where appropriate.
(E) To extract, copy, publish, distribute, modify and incorporate
into other works, for any purpose (and not limited to use
within the IETF Standards Process) any executable code or code
fragments that are included in any IETF Document (such as MIB
and PIB modules), subject to the requirements of Section 5 (it
also being understood that the licenses granted under this
paragraph (E) shall not be deemed to grant any right under any
patent, patent application or other similar intellectual
property right disclosed by the Contributor under [IPR DOC]).

b.
The Contributor grants the IETF and ISOC permission to reference
the name(s) and address(es) of the Contributor(s) and of the
organization(s) s/he represents or is sponsored by (if any).
---

OK -  so lets start with #a above - if the Contributor does not have a
formal power of attorney for their sponsor in this or some formal release
from the sponsor this is impossible to legally put in place. This statement
implies that the submitter speaks legally for the sponsor and that is not
so in most all cases. And in #b above, you cannot grant access to what you
don't own and publishing this information may have privacy law issues
attached to it as well making this also a mess. Same is true for SS4 which
is
the same stuff for the RFC Editors pretty much.

ss3.4 is also equally twisted, and assumes that the submitter is also
legally empowered to speak for their sponsor which we all know is not true
in most instances as well, look at ss 3.4(d) for one in particular:
---
With respect to each Contribution, each Contributor represents that
to the best of his or her knowledge and ability:
a. The Contribution properly acknowledges all major Contributors. A
major Contributor is any person who has materially or
substantially contributed to the Contribution.
b. No information in the Contribution is confidential and the IETF,
ISOC, and its affiliated organizations may freely disclose any
information in the Contribution.
c. 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.
d. The Contributor has not intentionally included in the
Contribution any material which is defamatory or untrue or which
is illegal under the laws of the jurisdiction in which the
Contributor has his or her principal place of business or
residence.
e. All trademarks, trade names, service marks and other proprietary
names used in the Contribution and personally and reasonably known
to the Contributor are clearly designated as such where
reasonable.
---

but the real kicker is ss3.5 - that is 'the loophole' that say's "We don't
have to publish your work if we don't want to - nee ner nee ner nee ner!."

More Coming -

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