Subject: IETF IP Contribution Policy

From: "Lawrence Rosen" <[email-masked]>
Date: Thu, 18 Jan 2007 10:41:46 -0800

Open Letter Regarding IETF IP Contribution Policy

(Feel free to copy. My apologies in advance for cross-posting)

I want to let you know about the latest proposal from the IETF IPR Working
Group regarding rights in contributions made to IETF for Internet standards.
See www.ietf.org/rfc/rfc3978.txt.  

IETF, the most democratic and open of standards organizations, is proposing
a contribution policy that, simply put, may result in standards that are not
truly open for implementation and use in open source software. This draft
policy offers, in section 3.3(a)(E), generous copyright licenses for
contributions, but it expressly omits any patent licenses: 

... (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 [RFC3979]).

The draft policy contains this language because, as one participant said on
the IPR WG discussion list, it should be up to each individual IETF Working
Group to decide whether a standard should be adopted even though a
contributor's necessary patent claims may not be freely available to
actually practice the standard. This is worse in some respects than the
"reasonable and non-discriminatory" policies that the open source community
has been fighting against in other standards organizations. This new policy
does not even promise RAND, much less FREE, patent licenses. This
contribution policy may actually result in standards that can't even be
implemented at a reasonable price by proprietary software companies, let
alone by open source projects!

The IETF is a public trust, and the intellectual property rights in IETF
contributions are being given to a 501(c)(3) public benefit organization for
release as Internet standards. I do not believe that IETF working groups
should ever promulgate private standards for the financial benefit of
private patent owners, no matter how wonderful the technology.  

As I said above, IETF is a democratic and open organization. Many engineers
and others in the open source community already participate in IETF working
groups and contribute to this essential commons of open standards for the
Internet. I encourage every IETF contributor to read the proposed IETF
policy and to express your own opinion about whether it should be adopted in
its current form.

The co-chair of the IETF IPR WG, Harald Alvestrand, suggested that I take
this issue to an open list. He also invites anyone who wants to participate
in this debate and to vote on the proposal to join the discussion group.
(https://www1.ietf.org/mailman/listinfo/ipr-wg)  

/Larry Rosen

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 * cell: 707-478-8932 * fax: 707-485-1243

Skype: LawrenceRosen

Author of "Open Source Licensing: Software Freedom and 

                Intellectual Property Law" (Prentice Hall 2004)

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

---

From: Harald Alvestrand <[email-masked]>
Date: Thu, 18 Jan 2007 20:33:51 +0100

Lawrence Rosen wrote:
>
>  
>
> The co-chair of the IETF IPR WG, Harald Alvestrand, suggested that I 
> take this issue to an open list. He also invites anyone who wants to 
> participate in this debate and to vote on the proposal to join the 
> discussion group. (https://www1.ietf.org/mailman/listinfo/ipr-wg)  
>
Note: The issue of patents is not currently in scope for the IETF IPR 
WG; see the charter at http://www.ietf.org/html.charters/ipr-charter.html.
If you want to argue about the copyright policies of the IETF, you are 
very welcome to join.

If you wish to argue for a change in the IETF's patent policy, please 
raise the issue on the general IETF list; details on how to subscribe 
are available from http://www.ietf.org/maillist.html.

                       Harald

---

From: "Contreras, Jorge" <[email-masked]>
Date: Thu, 18 Jan 2007 14:54:36 -0500

To clarify:  RFC 3978 is NOT a draft. It was adopted as the IETF's policy on contributions in March 2005 after a lengthy and open discussion process.  Discussions are ongoing within the IETF IPR-WG regarding possible changes to RFC 3978, but the language noted by Larry is not a proposal for new language -- it is the current language.

Jorge Contreras (legal counsel to IETF)

-----Original Message-----
From: Lawrence Rosen [mailto:[email-masked]]
Sent: Thursday, January 18, 2007 1:42 PM
To: [email-masked]
Cc: 'Legal Discuss'; [email-masked]; [email-masked]
Subject: IETF IP Contribution Policy

 

I want to let you know about the latest proposal from the IETF IPR Working Group regarding rights in contributions made to IETF for Internet standards. See www.ietf.org/rfc/rfc3978.txt.  

IETF, the most democratic and open of standards organizations, is proposing a contribution policy that, simply put, may result in standards that are not truly open for implementation and use in open source software. This draft policy offers, in section 3.3(a)(E), generous copyright licenses for contributions, but it expressly omits any patent licenses: 

... (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 [RFC3979]).

The draft policy contains this language because, as one participant said on the IPR WG discussion list, it should be up to each individual IETF Working Group to decide whether a standard should be adopted even though a contributor's necessary patent claims may not be freely available to actually practice the standard. This is worse in some respects than the "reasonable and non-discriminatory" policies that the open source community has been fighting against in other standards organizations. This new policy does not even promise RAND, much less FREE, patent licenses. This contribution policy may actually result in standards that can't even be implemented at a reasonable price by proprietary software companies, let alone by open source projects!

The IETF is a public trust, and the intellectual property rights in IETF contributions are being given to a 501(c)(3) public benefit organization for release as Internet standards. I do not believe that IETF working groups should ever promulgate private standards for the financial benefit of private patent owners, no matter how wonderful the technology.  

As I said above, IETF is a democratic and open organization. Many engineers and others in the open source community already participate in IETF working groups and contribute to this essential commons of open standards for the Internet. I encourage every IETF contributor to read the proposed IETF policy and to express your own opinion about whether it should be adopted in its current form.

The co-chair of the IETF IPR WG, Harald Alvestrand, suggested that I take this issue to an open list. He also invites anyone who wants to participate in this debate and to vote on the proposal to join the discussion group. ( https://www1.ietf.org/mailman/listinfo/ipr-wg)  

/Larry Rosen

Lawrence Rosen

Rosenlaw & Einschlag, a technology law firm ( www.rosenlaw.com)

Skype: LawrenceRosen

---

From: "Steven M. Bellovin" <[email-masked]>
Date: Thu, 18 Jan 2007 14:56:26 -0500

[Larry, I'd appreciate it if you'd forward my response to the
legal-discuss and license-discuss mailing lists -- I don't subscribe to
them,  so my note probably won't go through.]

Speaking as one of the chairs of the IPR working group, let me correct
a few points.

First -- this is not a new "proposal" by the IETF working group.  The
patent policy has been in place for many years.  It was reaffirmed most
recently in 2003; more on that below.  The new document was never
intended to change patent policy (nor even to reaffirm it); rather, it
was intended to fix some bugs in the previous copyright policy document
and to adapt to changes in the administrative infrastructure supporting
the IETF.

Second -- structurally, the IPR working group is not allowed to propose
changes to the current patent policy.  We're only allowed to work on
items described by our charter; see
http://www.ietf.org/html.charters/ipr-charter.html .  While I realize
that a legalistic, context-free reading of the charter might come to a
different conclusion, we don't have to wonder about the "original
intent" of the authors -- as one of them, I guarantee that it was quite
explicitly intended to have forestall any work on patent policy.

I say that because of the history of this WG.  There were similar calls
to change the IETF's patent policy several years ago.  I made the same
response -- the group was not chartered to change it.  But I told the
pro-change community that when we had completed our assigned tasks, we
would have an open discussion and consensus call on whether or not we
should recharter to change the IETF's patent policy.  The result --
which I announced on April 9, 2003 -- was very clear: there was a
consensus against any change.  I know of no changes in the membership or
constituency of the IETF, or the legal environment within which we
operate, that makes me think the result would be any different today.

Last -- Larry's note quoted Harald Alvestrand, the other IPR-WG chair,
as suggesting discussion on an open mailing list.  It seemed to me that
Larry's note could be misread as suggesting that the IPR-WG's mailing
list was an appropriate venue.  It's not -- by IETF policy (and I'll
quote the RFCs if people want), working group mailing lists are for the
working group's chartered tasks.  As Harald and I both posted to that
mailing in the last few days, we are not chartered to discuss changes
in the patent policy; therefore, such postings are out of scope and out
of line.  The list is open, in that anyone can join and and
participate in the work of the group.  It is not open to off-topic
postings -- and discussions of changing the patent policy are off-topic.

It is, of course, permissible to request rechartering or the formation
of a new working group.  I can tell you right now that neither Harald
nor I will support such a request at this time.  I also suspect that
our AD would not approve any such request were we to make one, since
we're late on delivering our currently-chartered documents.

---

From: Brian E Carpenter <[email-masked]>
Date: Fri, 19 Jan 2007 17:55:25 +0100

(Please forward to the non-IETF lists on copy.)

(I apologise to the ipr-wg list for being off topic,
but I believe one further factual clarification is
required.)

Larry, I am not a lawyer but I do understand enough
law to know that I cannot give you the Brooklyn Bridge,
because I don't own it. Thus:

> Contributor under [RFC3979]).

Your very selective quote from one document in a set of documents
is, as far as my non-lawyer understanding goes, merely saying
"The IETF cannot grant rights that it does not own."

That isn't in fact policy; it's a statement of the blindingly
obvious, in the context of the full set of documents.
As others have told you, it's not a "draft policy" in any case;
it's old news, first approved in RFC 3667 (January 2004),
but since it's a statement of the obvious, it wasn't news
even then. Again, I'm not a lawyer, but to me it's a direct
implication of the older formulation of the same IPR policy
approved in 1996. I don't think anyone implementing any IETF
standards has ever been in serious doubt about this point.

Regards

     Brian Carpenter
     IETF Chair

____________From [email-masked] Fri Jan 19 12:02:58 2007
Date: Fri, 19 Jan 2007 17:55:25 +0100
From: Brian E Carpenter <[email-masked]>
Organization: IBM
To: [email-masked]
Cc: 'Legal Discuss' <[email-masked]>, [email-masked],
	[email-masked]
Subject: Re: IETF IP Contribution Policy

(Please forward to the non-IETF lists on copy.)

(I apologise to the ipr-wg list for being off topic,
but I believe one further factual clarification is
required.)

Larry, I am not a lawyer but I do understand enough
law to know that I cannot give you the Brooklyn Bridge,
because I don't own it. Thus:

> Contributor under [RFC3979]).

Your very selective quote from one document in a set of documents
is, as far as my non-lawyer understanding goes, merely saying
"The IETF cannot grant rights that it does not own."

That isn't in fact policy; it's a statement of the blindingly
obvious, in the context of the full set of documents.
As others have told you, it's not a "draft policy" in any case;
it's old news, first approved in RFC 3667 (January 2004),
but since it's a statement of the obvious, it wasn't news
even then. Again, I'm not a lawyer, but to me it's a direct
implication of the older formulation of the same IPR policy
approved in 1996. I don't think anyone implementing any IETF
standards has ever been in serious doubt about this point.

Regards

     Brian Carpenter
     IETF Chair

---

From: "Lawrence Rosen" <[email-masked]>
Date: Fri, 19 Jan 2007 09:43:03 -0800

Brian Carpenter wrote:
> I am not a lawyer but I do understand enough
> because I don't own it. 
<snip>
> "The IETF cannot grant rights that it does not own."

In this case, your understanding of the law is right on, but your
understanding of the implications for the IETF policy is dead wrong.

Of course a contributor can't give patent rights it doesn't own. BUT IT CAN
GIVE IETF PATENT RIGHTS IT DOES OWN! AND IT SHOULD!

There is no reason whatsoever, other than their obstinacy and greed, for
patent-owning IETF contributors not to be required to include along with
their copyrightable contributions to IETF the necessary patent licenses THAT
THEY ARE ABLE TO GRANT to practice those contributions in commercial
products, both open source and proprietary.

The Apache Software Foundation demands that. W3C and Oasis demand that. Why
shouldn't IETF?

We don't have to get *all* drunk drivers off the road in order to reduce
traffic accidents substantially.

/Larry

> From: Brian E Carpenter [mailto:[email-masked]]
> Sent: Friday, January 19, 2007 8:55 AM
> To: [email-masked]

---

From: "todd glassey" <[email-masked]>
Date: Fri, 19 Jan 2007 10:17:46 -0800

On the other hand you make all participation with the IETF dependant on 
people who are willing to lose all stake in control of what they are 
investing in and in so trusting the IETF to 'do the right thing' whatever 
that means.

Bluntly I think that this path is going to force many commercial entities 
who don't want to give it all away to look elsewhere.

Also, FWIW, if the ITU drops its prices or opens a new class of individual 
submission as part of a limited 'standards process' biz-dev thingee the IETF 
may see many of its more promising efforts jump over there. Especially if 
the IETF Trust is going to go into marketing the technology and IP rights.

So, while the intent is probably noble the ietf needs better accountability 
in its management practices than to spend all this time arguing that 2026 
didn't work.

Todd Glassey

----- Original Message ----- 
From: "Lawrence Rosen" <[email-masked]>
To: "'Brian E Carpenter'" <[email-masked]>
Cc: "'Legal Discuss'" <[email-masked]>; 
<[email-masked]>; <[email-masked]>
Sent: Friday, January 19, 2007 9:43 AM
Subject: RE: IETF IP Contribution Policy

---

From: John C Klensin <[email-masked]>
Date: Fri, 19 Jan 2007 13:31:59 -0500

As others have requested, I hope these notes are being forwarded
to the other lists that you have copied.  My apologies to the
IPR list for more traffic on the subject: it would really be
useful, IMO, if we could clarify this issue enough to reduce the
FUD, even if we don't end up in complete agreement.

--On Friday, 19 January, 2007 09:43 -0800 Lawrence Rosen
<[email-masked]> wrote:

>...
> The Apache Software Foundation demands that. W3C and Oasis
> demand that. Why shouldn't IETF?
>...

Assuming this question is not rhetorical, it deserves a response
because that response, IMO, lies at the root of the issue here.  

Certainly, Larry, you are entitled to your opinion as to what
the IETF should be doing.  You are even entitled to advocate for
it passionately.  But hyperbole and pretending things are
self-evidently true doesn't help us make progress and, at least
IMO, reflects badly on you and perhaps on your profession.

ANSI does not demand it.  IEEE does not demand it.  ISO does not
demand it and ITU doesn't either.  Very few of the ISO national
Member Bodies demand it.  The patent policies of these groups
are not the same, but they  have in common that, like the IETF,
they do not demand patent transfers as a condition of either
standardization or participation. For each of them, the patent
rights granted may, in practice, differ from one standard to the
next.

If I were to use the logic you appear to be using above, I would
suggest that each of those groups, and the IETF, has developed
and maintained more standards with serious impact on the
marketplace than all three of the groups you identify put
together.  I might then suggest that the difference in
experience and marketplace success should turn the correct
question into "why shouldn't Apache, W3C, and Oasis get in line
with the IETF and the other, more established, SDOs".  But that
would be as non-productive as I believe your line of argument to
be.

The more useful answer is that the field has a long history of
useful developments occurring in two types of forums.  One is
often characterized as a consortium, with specific membership
requirements that often include high fees and/or rather specific
and legally-binding conditions for participation, often
including release of patent rights... either to the consortium,
to other participants on some sort of "share alike" basis, or
more generally.   One nice thing about a consortium model is
that it is clear that enterprises and individuals that do not
share the consortium's specific goals, objectives, and, often,
intended methods (I'm tempted to add "religion") are not welcome
and typically don't join or are quickly eased out.    The three
organizations you name conform more or less well to the
consortium definition.   

The other model is what is usually called a Standards
Development Organization (SDO), Open Standards Body, or some
variation on those terms.  They tend to be more open than the
consortia -- "open" in the sense of accommodating a wider range
of enterprises, inputs, goals, and policies.  In most cases,
they even try to invite and respect a balance of interests,
although that can be more or less explicit.   One thing that the
SDOs I have listed above, and the IETF, have in common is that
we don't tell people "if you don't accept our view that
standardization does not imply free and general licensing,
without restrictions or application procedures of any sort, you
are not welcome to participate here".  All of us --again, in
different terms and different degrees of explicitness-- are
"open" enough to tell organizations "you are welcome to come in
here, disclose your IPR claims, present your technology, and
make the case that it is important enough, and enough better
than the alternatives, to justify standardization despite the
encumbrances.  

We, and many of the rest of the SDO group, have historically
believed that this is more open, and more likely to lead to best
practice results, than applying entrance constraints that tell
some parties they can't participate.   We believe that our
arrangements are more likely to yield the best solutions when
all of the issues and considerations are balanced --on a
per-standard basis when necessary-- rather than having to select
the best solution that is consistent with the sometimes much
narrower range of choices dictated by the absolute criterion of
one particular patent licensing regime.

You may disagree.  You may continue advocating strongly for your
particular point of view (although preferably not on this list)
whether you disagree or not.  But please stop suggesting that
your position is the only possible rational one, that everyone
else is doing things the way you prefer and only the IETF is
deviant, or that the IETF is suddenly adopting a regressive
policy.  That approach doesn't help us move forward... and
because the "engineers" out here are fairly good at reasoning
through things, it doesn't advance your case either.

  regards,
     john

---

From: Stephane Bortzmeyer <[email-masked]>
Date: Mon, 22 Jan 2007 10:55:32 +0100

On Fri, Jan 19, 2007 at 01:31:59PM -0500,
 John C Klensin <[email-masked]> wrote 
 a message of 106 lines which said:

> > The Apache Software Foundation demands that. W3C and Oasis demand
> > that. Why shouldn't IETF?
...
> Member Bodies demand it.

Well summarized: some SDO are open, distribute freely their work and
publish standards that are widely used on the Internet. Some SDOs are
closed, and love failed standards that were never adopted, often
because of restrictions they put on standards distribution.

You're right, this is the core issue: on which side does the IETF
stand?

> One nice thing about a consortium model is that it is clear that
> enterprises and individuals that do not share the consortium's
> specific goals, objectives, and, often, intended methods (I'm
> tempted to add "religion") are not welcome and typically don't join
> or are quickly eased out.

This deserves the price of the best pleonasm of the year: let's
rephrase it. For any Organization (a church, a SDO, a political party,
a non-profit charity), enterprises and individuals that do not share
the Organization goals are not welcome. This is hardly specific of the
W3C or Oasis or ASF or FSF or IETF.

---

From: "todd glassey" <[email-masked]>
Date: Mon, 22 Jan 2007 03:30:43 -0800

Stephane you speak of

> W3C or Oasis or ASF or FSF or IETF.

No it is exactly true - and wize guy - if this WG had any integrity at all 
it would stop trying to make changes to the IETF that the membership as a 
whole of the people participating in the IETF did not vote on...

So - its really the IPR WG that is the problem here in that it is trying to 
make changes to the substantive process of the IETF without the approval of 
any of the working members.

This IETF needs open elections and open processes.

Todd Glassey

---

From: Brian E Carpenter <[email-masked]>
Date: Mon, 22 Jan 2007 12:44:53 +0100

On 2007-01-22 10:55, Stephane Bortzmeyer wrote:
...
> You're right, this is the core issue: on which side does the IETF

Unambiguously on the side of no restriction on standards distribution.

As every RFC (except a few very early ones) says:

   "Distribution of this memo is unlimited."

     Brian

---

From: John C Klensin <[email-masked]>
Date: Mon, 22 Jan 2007 06:58:04 -0500

--On Monday, 22 January, 2007 10:55 +0100 Stephane Bortzmeyer
<[email-masked]> wrote:

>> ANSI does not demand it.  IEEE does not demand it.  ISO does
>> not demand it and ITU doesn't either.  Very few of the ISO
>> national Member Bodies demand it.
> 
> Well summarized: some SDO are open, distribute freely their
> work and publish standards that are widely used on the
> Internet. Some SDOs are closed, and love failed standards that
> were never adopted, often because of restrictions they put on
> standards distribution.
> 
> You're right, this is the core issue: on which side does the
> IETF stand?

Hmm.

First, let's not confuse restrictions on the distribution of the
standards themselves (which the IETF certainly does not have and
never has had) with the _possibility_ of encumbrances on the
technology of those standards.  I suggest it makes a difference.

With regard to the standards bodies having a policy that permits
standards to use patented technology --whether the particular
standard does or not-- you mean, for example, standards that
fail and are never adopted such as
  Ethernet
  802.11 a / b / g / x etc
  ISO 636, 646, 3166, 8859, 10646, most of the programming
languages, floppy disks, ... to say nothing of a huge series of
things in areas unrelated to information technology (start with
motorcycle helmets and sensitivity of photographic materials,
tedious list of examples on request).  I note that most of the
IT  standards on that list have open source implementations or
applications.

If course, the documents describing many or most of those are
also available only for purchase at high prices.

I don't know the details of the policies and situation with
AFNOR or CEN/CENELEC but, in general, national and regional
standards for building and fire protection codes, typewriter
keyboards, tire (tyre) dimensions and properties, paper sizes,
electrical connectors, and so on would also, given your comment,
be expected to be failures that were never adopted...

My reality seems to differ a bit from yours in this area.
Perhaps that is part of the problem.

     john