Subject: Copyright transfer flaws - The difference between owning IP rights and literary rights. - Terminating the LC

From: "TS Glassey" <[email-masked]>
Date: Sat, 15 Dec 2007 07:50:06 -0800

The Incoming LC needs to be terminated because of flaws in the document 
itself which cannot be corrected in the time frame remaining in the LC 
window.

One of the key things that is happening here I think is that we are merging 
the concept of literary and IP rights beyond what is possible without a 
release from the actual IP owner by applying a flat set of rules which makes 
unprovable assumptions.

For instance if Party "A" writes a technology specification, that is not per 
se a 'literary work' then the rights needed here from it would pertain to 
the use of that 'technology'. That's OK - everything is cool there.

But if the Party "A" is someone who is writing about something that they are 
not the owner of, for instance, the TELNET standards, then whether they 
assign those technical rights to the IETF or not, the IETF does not OWN the 
core rights to the original IP and it as such cannot relicense the use of 
the core IP.

The IETF may be able to license the reprinting of the document submitted to 
it, but even that is iffy, because the IETF (and the submitter) would then 
be taking a private property and converting it to a "public one", which with 
the number of US Government employee's in the IETF and IESG will constitute 
a violation of 5th amendment rights.

The scope of the 107 exemption would terminate at the initial publication. 
No republication rights would propagate with it.

*************************
Excerpt from Copyright Website
*************************
Copyright Section 107 - http://www.copyright.gov/title17/92chap1.html#107 
closes with the following words:

In determining whether the use made of a work in any particular case is a 
fair use the factors to be considered shall include -
(1) the From [email-masked] Sat Dec 15 10:50:23 2007
From: "TS Glassey" <[email-masked]>
To: <[email-masked]>
Date: Sat, 15 Dec 2007 07:50:06 -0800
Cc: [email-masked]
Subject: Copyright transfer flaws - The difference between owning IP rights
	and literary rights. - Terminating the LC

The Incoming LC needs to be terminated because of flaws in the document 
itself which cannot be corrected in the time frame remaining in the LC 
window.

One of the key things that is happening here I think is that we are merging 
the concept of literary and IP rights beyond what is possible without a 
release from the actual IP owner by applying a flat set of rules which makes 
unprovable assumptions.

For instance if Party "A" writes a technology specification, that is not per 
se a 'literary work' then the rights needed here from it would pertain to 
the use of that 'technology'. That's OK - everything is cool there.

But if the Party "A" is someone who is writing about something that they are 
not the owner of, for instance, the TELNET standards, then whether they 
assign those technical rights to the IETF or not, the IETF does not OWN the 
core rights to the original IP and it as such cannot relicense the use of 
the core IP.

The IETF may be able to license the reprinting of the document submitted to 
it, but even that is iffy, because the IETF (and the submitter) would then 
be taking a private property and converting it to a "public one", which with 
the number of US Government employee's in the IETF and IESG will constitute 
a violation of 5th amendment rights.

The scope of the 107 exemption would terminate at the initial publication. 
No republication rights would propagate with it.

*************************
Excerpt from Copyright Website
*************************
Copyright Section 107 - http://www.copyright.gov/title17/92chap1.html#107 
closes with the following words:

In determining whether the use made of a work in any particular case is a 
fair use the factors to be considered shall include -
(1) the purpose and character of the use, including whether such use is of a 
commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the 
copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the 
copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair 
use if such finding is made upon consideration of all the above factors.

*************************
End of Excerpt from Copyright Website
*************************
So ... what this means simply is that  if the copyrighted work is "private 
and undisclosed" then the 107 exemptions DO NOT APPLY  since they cause 
irreparable damage to the IP. Clearly as such ANY publication of private 
works eliminates the possibility of patenting those IP's in Japan and other 
places making this a violation of the intent of (1) (3) and (4).

Lets not stop there though. Lets look at 108 and 109 too...

Section 108 of the Copyright Act  - 
http://www.copyright.gov/title17/92chap1.html#108 - limits Library's 
Reproduction Rights. What that means is that libraries MAY only have a 
limited number of copies of 107 exempted works in their inventory and cannot 
make any reproductions of them, nor can anyone copy those documents either 
under Fair Use, the scope of Fair Use ends at the three copies.

The damage here is that since with IETF document's they are permanently 
distributed meaning that NO LIBRARY can deploy more than THREE TOTAL COPIES 
of the work under 108(b) and (c).

*************************
Excerpt from Copyright Website
*************************
(a) Except as otherwise provided in this title and notwithstanding the 
provisions of section 106, it is not an infringement of copyright for a 
library or archives, or any of its employees acting within the scope of 
their employment, to reproduce no more than one copy or phonorecord of a 
work, except as provided in subsections (b) and (c), or to distribute such 
copy or phonorecord, under the conditions specified by this section, if -

(1) the reproduction or distribution is made without any purpose of direct 
or indirect commercial advantage;

(2) the collections of the library or archives are (i) open to the public, 
or (ii) available not only to researchers affiliated with the library or 
archives or with the institution of which it is a part, but also to other 
persons doing research in a specialized field; and

(3) the reproduction or distribution of the work includes a notice of 
copyright that appears on the copy or phonorecord that is reproduced under 
the provisions of this section, or includes a legend stating that the work 
may be protected by copyright if no such notice can be found on the copy or 
phonorecord that is reproduced under the provisions of this section.

(b) The rights of reproduction and distribution under this section apply to 
three copies or phonorecords of an unpublished work duplicated solely for 
purposes of preservation and security or for deposit for research use in 
another library or archives of the type described by clause (2) of 
subsection (a), if -

(1) the copy or phonorecord reproduced is currently in the collections of 
the library or archives; and

(2) any such copy or phonorecord that is reproduced in digital format is not 
otherwise distributed in that format and is not made available to the public 
in that format outside the premises of the library or archives.

---------------------

(d) The rights of reproduction and distribution under this section apply to 
a copy, made from the collection of a library or archives where the user 
makes his or her request or from that of another library or archives, of no 
more than one article or other contribution to a copyrighted collection or 
periodical issue, or to a copy or phonorecord of a small part of any other 
copyrighted work, if -

(1) the copy or phonorecord becomes the property of the user, and the 
library or archives has had no notice that the copurpose and character of the use, including whether such use is of a 
commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the 
copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the 
copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair 
use if such finding is made upon consideration of all the above factors.

*************************
End of Excerpt from Copyright Website
*************************
So ... what this means simply is that  if the copyrighted work is "private 
and undisclosed" then the 107 exemptions DO NOT APPLY  since they cause 
irreparable damage to the IP. Clearly as such ANY publication of private 
works eliminates the possibility of patenting those IP's in Japan and other 
places making this a violation of the intent of (1) (3) and (4).

Lets not stop there though. Lets look at 108 and 109 too...

Section 108 of the Copyright Act  - 
http://www.copyright.gov/title17/92chap1.html#108 - limits Library's 
Reproduction Rights. What that means is that libraries MAY only have a 
limited number of copies of 107 exempted works in their inventory and cannot 
make any reproductions of them, nor can anyone copy those documents either 
under Fair Use, the scope of Fair Use ends at the three copies.

The damage here is that since with IETF document's they are permanently 
distributed meaning that NO LIBRARY can deploy more than THREE TOTAL COPIES 
of the work under 108(b) and (c).

*************************
Excerpt from Copyright Website
*************************
(a) Except as otherwise provided in this title and notwithstanding the 
provisions of section 106, it is not an infringement of copyright for a 
library or archives, or any of its employees acting within the scope of 
their employment, to reproduce no more than one copy or phonorecord of a 
work, except as provided in subsections (b) and (c), or to distribute such 
copy or phonorecord, under the conditions specified by this section, if -

(1) the reproduction or distribution is made without any purpose of direct 
or indirect commercial advantage;

(2) the collections of the library or archives are (i) open to the public, 
or (ii) available not only to researchers affiliated with the library or 
archives or with the institution of which it is a part, but also to other 
persons doing research in a specialized field; and

(3) the reproduction or distribution of the work includes a notice of 
copyright that appears on the copy or phonorecord that is reproduced under 
the provisions of this section, or includes a legend stating that the work 
may be protected by copyright if no such notice can be found on the copy or 
phonorecord that is reproduced under the provisions of this section.

(b) The rights of reproduction and distribution under this section apply to 
three copies or phonorecords of an unpublished work duplicated solely for 
purposes of preservation and security or for deposit for research use in 
another library or archives of the type described by clause (2) of 
subsection (a), if -

(1) the copy or phonorecord reproduced is currently in the collections of 
the library or archives; and

(2) any such copy or phonorecord that is reproduced in digital format is not 
otherwise distributed in that format and is not made available to the public 
in that format outside the premises of the library or archives.

---------------------

(d) The rights of reproduction and distribution under this section apply to 
a copy, made from the collection of a library or archives where the user 
makes his or her request or from that of another library or archives, of no 
more than one article or other contribution to a copyrighted collection or 
periodical issue, or to a copy or phonorecord of a small part of any other 
copyrighted work, if -

(1) the copy or phonorecord becomes the property of the user, and the 
library or archives has had no notice that the copy or phonorecord would be 
used for any purpose other than private study, scholarship, or research; and

(2) the library or archives displays prominently, at the place where orders 
are accepted, and includes on its order form, a warning of copyright in 
accordance with requirements that the Register of Copyrights shall prescribe 
by regulation.

*************************
End of Excerpt from Copyright Website
*************************

What I think this means is that per 108(a)(1) if there is ANY commercial 
advantage involved, i.e. any of the parties publishing this document are 
involved as part of a Business Development (BizDev) effort, then this would 
also apply to them and their representatives as well meaning DEBIAN and 
other commercial reprinters of the RFC Library cant do that... Ooops. Oh - 
and transferring the IP to a NON-Tax Exempt Trust under this proviso would 
also eliminate the Trust's operations too. Again OOOPS!

108 (B)(2) further constrains the deployment of copies of those media's 
since those copies can NEVER be recovered by the library but are simply 
copied to those parties checking them out.  As such that limits the total # 
of copies deployable by an IETF mirror to three copies - period - end of 
statement.

What this means is that those parties who mirrored the IETF's WG Mailing 
Lists and the Publications may owe a LOT of MONEY for their reproduction of 
the services, something I am formally suggesting they sue this IPR-WG, its 
core membership and the IETF management team over exactly this by the way.

It gets better though. The IETF's master site is in trouble as well under 
(d)(1) wherein a WGET -R or RSYNC'ing of the library itself would constitute 
that "request from another library service - whether its a public or private 
library" as well.

We wont even address the (C) notice requirements per 107, 108 and 109 which 
are pretty clearly stated as well which in section (b)(1)(A) is pretty clear 
about the reproduction of computer programs, which ALL digital media files 
represent...

Sorry it is what it is - the submission process is broken and needs a total 
review

As such it is inappropriate to send a Incoming Works Rights document for LC 
to anyone.

Todd Glassey

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