Subject: Re: [CNI-(C)] Copyright status of early Internet RFCs

From: "Lawrence Rosen" <[email-masked]>
Date: Fri, 7 Apr 2006 23:42:15 -0700

John Levine asked on the CNI-COPYRIGHT list:
> A friend of mine wants to republish some early documents in the
> Arpanet/Internet RFC series in a book.  The ones he is interested in
> are all from before 1976, and none contain any copyright notice.  (The
> latter is easily verified by searching the online versions for the
> strings "copyright" and "(c)".)  They're by many different authors,
> some were produced under DARPA contracts, but I don't think all of
> them were.  There is a tradition that reproduction is permitted, but I
> can't find that codified anywhere.  The guy who edited the series at
> the time has died, so we can't ask him.  Later editors of the RFC
> series have apparently made retroactive claims about earlier
> documents, but I get the feeling it's people who know more about the
> IP protocol than about IP law playing Junior Lawyer.
> 
> My understanding is that if something was published in the U.S.
> before 1976 without a notice, it's P.D.  Is there any reason to
> think he can't just go ahead and republish?

Joseph Pietro Riolo responded:
> Not just before 1976 but also before March 1, 1989.
> However, don't expect Internet Engineering Task Force
> (IETF) to be honest and generous.
> 
> Moreover, almost all RFC's have very, very, very
> thin copyright because of Merger Doctrine and/or
> Section 102(b).

Lawrence Rosen now responds:
The IETF is trying very hard to be honest and generous. I'm participating in
discussions on their IPR Working Group and I know that they are devoting
much energy to making their copyright procedures (in-licensing and
out-licensing) more rigorous, transparent and fair. 

I am, however, in strong agreement with Mr. Riolo's second point. It is
about time the copyright community stopped saying that "anything written is
copyrighted" and remember that-at least in technical fields-section 102(b)
is co-equal with 102(a): The Merger Doctrine survives in U.S. copyright law.

Some technical works can be freely copied regardless of copyright claims;
licenses aren't always needed. While some might argue differently in the
IETF IPR Working Group about the copyright status of RFCs, I can't imagine
there's anyone out there actually ready (and with standing!) to start a
copyright infringement lawsuit over any of those old RFCs. Just in case
someone in IETF wants to complain, though, I'm cross-posting this to the
IETF IPR WG.

Will your friend properly attribute and credit the work to IETF? That's only
fair, and it's a reasonable expectation in all scholarly work.

/Larry

Lawrence Rosen
Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)
Stanford University, Lecturer in Law
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242  *  fax: 707-485-1243
Author of "Open Source Licensing: Software Freedom and 
                Intellectual Property Law" (Prentice Hall 2004)

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From: Don Armstrong <[email-masked]>
Date: Sun, 9 Apr 2006 13:33:45 -0700

On Fri, 07 Apr 2006, Lawrence Rosen wrote:
> The IETF is trying very hard to be honest and generous. I'm
> participating in discussions on their IPR Working Group and I know
> that they are devoting much energy to making their copyright
> procedures (in-licensing and out-licensing) more rigorous,
> transparent and fair.
> 
> I am, however, in strong agreement with Mr. Riolo's second point. It
> is about time the copyright community stopped saying that "anything
> written is copyrighted" and remember that-at least in technical
> fields-section 102(b) is co-equal with 102(a): The Merger Doctrine
> survives in U.S. copyright law.

This is, as you well know, very jurisdiction dependent. For works
which the IETF was not able to secure the appropriate rights
originally, there is very little that can be done, but going forward,
the rights needed should be obtained and granted as appropriate, even
for works which may not be copyrightable in the US.[1]

Don Armstrong

1: Even in the US, it's definetly a conservative approach to do this,
even if it ends up being useless; it's probably also easier to just
get these rights as part of the process than to make a determination
if the work is copyrightable in the jurisdictions we care about.
-- 
A people living under the perpetual menace of war and invasion is very
easy to govern. It demands no social reforms. It does not haggle over
expenditures on armaments and military equipment. It pays without
discussion, it ruins itself, and that is an excellent thing for the
syndicates of financiers and manufacturers for whom patriotic terrors
are an abundant source of gain.
 -- Anatole France

http://www.donarmstrong.com              http://rzlab.ucr.edu

---

From: John Levine <[email-masked]>
Date: 9 Apr 2006 22:36:29 -0000

>Will your friend properly attribute and credit the work to IETF?
>That's only fair, and it's a reasonable expectation in all scholarly
>work.

The RFCs in question predate the IETF, so it's not immediately
apparent to me why that would be appropriate.

R's,
John

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From: Brian E Carpenter <[email-masked]>
Date: Mon, 10 Apr 2006 13:41:02 +0200

> apparent to me why that would be appropriate.

Because we persuaded ISOC to fund the RFC Editor after the US Government
stopped doing so? ;-)

    Brian

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From: Harald Alvestrand <[email-masked]>
Date: Mon, 10 Apr 2006 17:55:57 +0200

> apparent to me why that would be appropriate.
I think it would be entirely reasonable to credit the RFC by number, and 
possibly also the authors by name.

---

From: John L <[email-masked]>
Date: Mon, 10 Apr 2006 11:58:16 -0400 (EDT)

> possibly also the authors by name.

I expect he's plannning to include entire RFCs verbatim, so that's all 
included.

Regards,
John Levine, [email-masked], Primary Perpetrator of "The Internet for Dummies",
Information Superhighwayman wanna-be, http://iecc.com/johnl, Mayor
"I dropped the toothpaste", said Tom, crestfallenly.

---

From: Don Armstrong <[email-masked]>
Date: Sat, 8 Apr 2006 21:25:05 -0700

Don Armstrong

---

From: Simon Josefsson <[email-masked]>
Date: Mon, 17 Apr 2006 22:52:43 +0200

The discussion below suggest one issue: should we interpret (and
suggest improvements of) the IETF copying conditions under the US
Copyright laws or under the international Berne convention?  I have
adjusted my review and suggestions based on US Copyright laws, because
that seem to have been the tradition here, but I've always felt that
was slightly impure.  Is this question answered by some of the past
IETF output in this area?

Note that ownership of copyright, and especially transfer of copyright
ownership, is subtly different in US Copyright laws and in the Berne
convention.

Thanks,
Simon

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From: Harald Alvestrand <[email-masked]>
Date: Tue, 18 Apr 2006 10:33:11 +0200

>ownership, is subtly different in US Copyright laws and in the Berne
Given that the IETF Trust is subject to US law, we have to make 
statements about copyright that are compatible with US law.

We can draw our principles and intentions from wherever we want to.

As far as I understand - Jorge will be able to say more definitely.

                  Harald

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From: Simon Josefsson <[email-masked]>
Date: Tue, 18 Apr 2006 12:58:22 +0200

> statements about copyright that are compatible with US law.

Right, although a significant number of participants contribute
material that is not subject to a US copyright.

It seems to me that the assignment procedures ("inbound rights")
should be written to only assume the Berne convention, and not US
copyright laws.  Perhaps other parts needs to be too.

I'd be interested to hear Jorge's comment on this, and especially for
which copyright laws he reviewed RFC 3978.

Thanks,
Simon

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From: "Tom Petch" <[email-masked]>
Date: Tue, 18 Apr 2006 18:48:31 +0200

----- Original Message -----
From: "Simon Josefsson" <[email-masked]>
To: "Harald Alvestrand" <[email-masked]>
Cc: <[email-masked]>
Sent: Tuesday, April 18, 2006 12:58 PM
Subject: Re: [CNI-(C)] Copyright status of early Internet RFCs

> material that is not subject to a US copyright.

Mmmm, who says?  I have always believed that although my PC and I physically sit
outside US jurisdiction for most purposes, when I contribute to a US-based
mailing list for a US-based organisation with that 'Note Well ... ' everywhere,
well then, I had better be aware of the relevant US laws.

Tom Petch

<snip>

---

From: Don Armstrong <[email-masked]>
Date: Wed, 19 Apr 2006 12:02:39 -0700

> > I have adjusted my review and suggestions based on US Copyright
> > laws, because that seem to have been the tradition here, but I've
> > always felt that was slightly impure. Is this question answered by
> > some of the past IETF output in this area?
> 

Just to clarify: My concern is about works which are not copyrightable
in the US but are (or may be) copyrightable in other jurisdictions.[1]
Securing the rights to works which are not copyrightable in the US
appears to be worst a nullop, but will save the IETF from having to
make a determination as to whether the work is copyrightable or not
and avoids issues in jurisdictions which hold different things to be
copyrightable than the US.

Don Armstrong

1: Like databases or lists of magic numbers (phonebooks? ;-))
-- 
"The question of whether computers can think is like the question of
whether submarines can swim."
 -- Edsgar Dijkstra

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From: "todd glassey" <[email-masked]>
Date: Wed, 19 Apr 2006 12:10:38 -0700

Don - great commentary - so what also happens to IP that the US Government
created and that someone other than a US Government person 'submits to the
IETF' - who owns it?

How can the IETF attach ownership to anything it cannot generate exclusive
control over? Also since the US Government cannot really contribute anything
to the IETF as IP per the Trust or any of the use rules prior, how does this
work - especially since the US Government owns TCP/IP right? They paid BB&N
for it back in the late 60's as I recall... so does that mean that anything
that the IETF has published based on that IP is actually the property of the
people of the US? You see my point I hope.

Todd Glassey

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From: "Joel M. Halpern" <[email-masked]>
Date: Wed, 19 Apr 2006 15:15:48 -0400

It seems that the right approach to this sort of thing is to specify 
what rights we want for everything, and then include text that makes 
it clear that we are not attempting to claim copyright in 
non-copyrightable things, but only ensuring that we have the 
necessary rights if the item is copyrightable / copyrighted.

To put it differently, we should make sure things work if everything 
turns out to be copyrightable, and write the words so that things 
function sensibly if some parts turn out to be 
non-copyrightable.  (Without, one hopes, having to get a judge to 
define which case applies.)
We want to stay out of debates about what is or is not copyrightable, 
and even further away from any debates about what should or should 
not be copyrightable.

(I thought at one time that the doctrine of mergers might help with 
the code copyright question.  But the situation is so murky / subject 
to odd rulings that I for one don't think it makes sense for the 
community to rely on it.  It may help a user in the unlikely event of 
suit.  But that is a different question.)

Yours,
Joel M. Halpern

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From: Harald Alvestrand <[email-masked]>
Date: Thu, 20 Apr 2006 15:18:34 +0200

Joel M. Halpern wrote:

> non-copyrightable things, but only ensuring that we have the necessary 
> rights if the item is copyrightable / copyrighted.
>
> function sensibly if some parts turn out to be non-copyrightable. 
> (Without, one hopes, having to get a judge to define which case applies.)
> and even further away from any debates about what should or should not 
> be copyrightable.

I remember having this discussion multiple times....

the appropriate words seem to be something like "If I have a copyright, 
I hereby allow you the following things under it"..... if I don't have a 
copyright, it doesn't matter....