Subject: Stupid question: How are "the rights to represent the Sponsor" as codified in BCP78 and BCP79...

From: "TS Glassey" <[email-masked]>
Date: Tue, 11 Dec 2007 11:44:12 -0800

Harald
Dumb question number #1 about the logic of the existing IP conveyance model
in BCP78... The question is: How if an individual represents a Sponsor's
legal interests in the IETF would that Sponsor not be liable for "any and
all" (I love that phrase) damages that said sponsored person caused to
another in the IETF's standards process? I know this is unpleasant since  no
one ever does anything nasty in the IETF but the world is not a nice place.

I ask  this since BCP78 forces the participants to agree by their continued
participation that they do formally hold in a legal sense an "Enduring Power
of Attorney" which if true ***ALSO*** makes that Sponsor totally liable for
that person's actions in any effort one would think since those two facets
cannot be separated as far as I know.

As I noted once before the participation process in the IETF needs a Hold
Harmless addition now that BCP formally represents that a third parties
rights are controlled by a second parties submission of the third party's IP
to the IETF.

Todd Glassey

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

---

From: "Frank Ellermann" <[email-masked]>
Date: Tue, 11 Dec 2007 22:26:21 +0100

TS Glassey wrote:

> How if an individual represents a Sponsor's legal interests
> in the IETF would that Sponsor not be liable for "any and all"
[...]
> damages that said sponsored person caused to another in the
> IETF's standards process?

Looking through BCP 25 and 78 it's apparently very important
to distinguish "participant" and "contributor".  A participant
is always an individual, see BCP 25 chapter 1:

| Participation is by individual technical contributors, rather
| than by formal representatives of organizations.
 
A contribution can be made as a representative of a sponsor, in
BCP 78 chapter 3.3:

| By submission of a 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.

You are apparently talking about a contributor representing an
an organization, and/or sponsored by an organization.  And this
contributor caused damage to oner or more IETF participants.

Some damage caused by the sponsored contribution, otherwise 
this would be a participant not representing any organization.
 
> I ask this since BCP78 forces the participants to agree by
> their continued participation that they do formally hold in
> a legal sense an "Enduring Power of Attorney" which if true
> ***ALSO*** makes that Sponsor totally liable for that person's
> actions in any effort one would think since those two facets

If contributor C representing organization O causes damage for
participant P with the contribution, then P might be able to
sue O.  If that's the case, what's your problem with it ?  

 Frank

---

From: Harald Alvestrand <[email-masked]>
Date: Thu, 13 Dec 2007 09:51:49 +0100

> contributor caused damage to oner or more IETF participants.
As far as the IETF is concerned, this is a matter entirely between the 
contributor (always an individual) and his sponsoring organization (if any).

We do not require that participants supply proof of their relationship 
with their sponsors, any more than we require documentation of who their 
sponsor (at any moment) is.

As far as I can tell....

               Harald

---

From: Brian E Carpenter <[email-masked]>
Date: Fri, 14 Dec 2007 09:16:53 +1300

On 2007-12-13 21:51, Harald Alvestrand wrote:
...
> sponsor (at any moment) is.

I believe that is correct and intentional. If someone comes to the
IETF and makes contributions that their employer later objects to,
that is not the IETF's problem, because the IETF has the right to make
derivative works in any case.

As a corollary, people who change jobs need to make sure
that their old employer doesn't object to them continuing
to work on the same draft. That can get sticky, but it's still
not the IETF's problem, because the IETF has the right to make
derivative works in any case.

IANAL

    Brian

---

From: Don Armstrong <[email-masked]>
Date: Thu, 13 Dec 2007 16:02:43 -0800

On Fri, 14 Dec 2007, Brian E Carpenter wrote:
> If someone comes to the IETF and makes contributions that their
> employer later objects to, that is not the IETF's problem, because
> the IETF has the right to make derivative works in any case.

This assumes that the IETF has been properly granted permission from
the entity who is (or entities who are) legally able to do so. If that
hasn't been done, then the IETF doesn't have the right to make
derivative works from it, full stop.

Providing written documentation of this and waivers from employers is
part and parcel of doing due diligence when the utility and
derivability of a standard is at stake.[1]

Don Armstrong

1: The FSF has long dealt with this issue for copyrights which are
assigned to the FSF; I don't see why the IETF can't follow the same
sort of practices for incomming rights.
-- 
"There's nothing remarkable about it. All one has to do is hit the    
right keys at the right time and the instrument plays itself."
 -- Bach 

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

---

From: Brian E Carpenter <[email-masked]>
Date: Fri, 14 Dec 2007 17:37:42 +1300

On 2007-12-14 13:02, Don Armstrong wrote:
> the entity who is (or entities who are) legally able to do so. 

The IETF works with individual contributors, full stop.
If an individual makes a false representation, that's between
the individual and his/her employer.

I don't mean that the IETF should wilfully ignore rights; but
we *presume* that contributors aren't misrepresenting their rights
when they make a contribution.

> If that

If a party other than the contributor later asserts that the
contributor misrepresented their rights, that would obviously
end up in the hands of the IETF's counsel. This has happened,
extremely rarely, and been resolved by negotiation. It's unlikely
to be clear-cut, though.

     Brian

---

From: "TS Glassey" <[email-masked]>
Date: Thu, 13 Dec 2007 21:46:18 -0800

Brian - you know I respect you technically and I will agree (although I
bitch and moan about it) that the IETF should exist. But it has to exist
within the laws and IP MRA's this country has with the rest of the world.
That doesn't mean that OpenSourcing IP is a bad idea but even OS wares can
be purchased (or licensed in this case) so that any derivatives don't need
to be feed back into the pool. That said, commercial IP's can be granted
that status as well, so that means that the IETF can process both types of
standards processes, ones of the everyman and those of the commercial or
academic entity.

That said I want to retort to your response Sir - and please take it with my
usual pessimistic style... but also know I believe these words.

:-)

----- Original Message ----- 
From: "Brian E Carpenter" <[email-masked]>
To: <[email-masked]>
Sent: Thursday, December 13, 2007 8:37 PM
Subject: Re: Stupid question: How are "the rights to represent the Sponsor"
as codified in BCP78 and BCP79...

SNIP

> the individual and his/her employer.

Pardon my disagreeing with you but not when the IETF doesn't  have a "Take
Down Policy" its not.

(FWIW - A Take Down policy would also need a method of 'rescinding the
release in the original publication;)

>
> I don't mean that the IETF should willfully ignore rights; but

Brian - The new Digital Evidence rules make this unreliable these days.

>> derivative works from it, full stop.

So then let me ask, what possible recourse would someone have against the
IETF when the IETF relicensed stolen property 'for any and all uses'? If you
can explain to me how anything other than serious litigation is possible,
please do!

Sorry...
> end up in the hands of the IETF's counsel.

Amen - but this is the point. There is NO Take Down process and the license
wont support one. Meaning that the ONLY option is to sue the IETF and the
parties involved. Its that simple, and that this was designed this way is a
serious problem in my opinion.

> This has happened,

My point exactly and the IETF's licensing and distribution model is to blame 
for those damages... this is not a good thing anymore Brian.

Todd

---

From: "Frank Ellermann" <[email-masked]>
Date: Fri, 14 Dec 2007 13:53:48 +0100

> The IETF works with individual contributors, full stop.

Good, maybe the BCP 78 legalese about some contributors 
"representing an organization" can be removed or trimmed
or clarified.

 Frank

---

From: Simon Josefsson <[email-masked]>
Date: Fri, 14 Dec 2007 14:27:14 +0100

> "representing an organization" can be removed or trimmed

I share this concern, and this messages uses the ISSUE-protocol to
register this as a last call comment (the WGLC lasts until Dec 17 if I'm
not mistaken).

The most critical text appears to be in section 5.3:

   To the extent that a Contribution or any portion thereof is protected
   by copyright or 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 sublicensable right and license to the IETF
   Trust under all such copyrights and other rights in the Contribution:

This text appear to me to ask that a Contributor's organization (if any)
directly grant rights to the IETF.

If Brian is correct and the IETF do not work with organizations
directly, but only individual contributors, the legal text that requires
organizations to grant rights to the IETF appears wrong to me.

Section 5.1 also contains:

   By submission of a Contribution, each person actually submitting the
   Contribution, and each named co-Contributor, is deemed to have read
   and understood the rules and requirements set forth in this document.
   Each Contributor is deemed, by the act of submitting a Contribution,
   to enter into a legally-binding agreement to comply with the terms
   and conditions set forth in this document, 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.
   ^^^^^^^^^^^^^^^^^^^^^

My suggestion solution is to rephrase the text to say that Contributors
assure that they have the permission of the organization they represent
to share the contribution with the IETF.  This would be consistent with
only working with individuals rather than external organizations.

/Simon

---

From: Harald Alvestrand <[email-masked]>
Date: Fri, 14 Dec 2007 16:03:23 +0100

>    named co-Contributor, and the organization he or she represents or is
It is not asking that the organization makes a statement. It is asking 
that the contributor makes the statement (and that it's implicit in the 
contribution).

This can happen by the organization saying to the contributor "we don't 
care, we won't claim rights in what you are doing in this context", or 
by the organization saying to the contribution "you can give away this 
license on behalf of us". It's the contributor that makes the commitment 
to the IETF.
> organizations to grant rights to the IETF appears wrong to me.
It's fair warning to the contributor - if he doesn't hold all rights 
himself, he has to be in the clear with his sponsoring organization.
>    and on behalf of the organization the Contributor represents or is
That is what I believe the text is saying now.

---

From: "TS Glassey" <[email-masked]>
Date: Fri, 14 Dec 2007 07:16:45 -0800

Simon - my responses inline below

----- Original Message ----- 
From: "Simon Josefsson" <[email-masked]>
To: "Frank Ellermann" <[email-masked]>
Cc: <[email-masked]>
Sent: Friday, December 14, 2007 5:27 AM
Subject: ISSUE: incoming 5.1, 5.3: requires participation of organizations

> register this as a last call comment (the WGLC lasts until Dec 17 if I'm

True Simon but changing the language DOES NOT CLEAN UP THE MESS that was 
created when other IP's were subjected to being submitted under these BCP78 
Rules.

This is the key problem with allowing ANYTHING but a production revision of 
an IP Contract into release. It (changing the language)  also doesnt effect 
any IP issues for processes that are underway and which were filed under 
those other terms. SO placing this broken BCP78 into effect has caused 
permanent and ongoing pain/damage for some number of submissions.

What would you propose doing about them? My feeling is that the Chair or AD 
would need to formally contact ALL OF THOSE IP OWNERS and get an amended 
release under the new language.

>   named co-Contributor, and the organization he or she represents or is

I agree. In fact it makes the submitter 'claim that they stand with an 
enduring power of attorney' against those IP's... and we all know that isnt 
what happens here in the IETF. No one here except a few corporate 
inititaitve have the formal approval of those corporate officers so...

> organizations to grant rights to the IETF appears wrong to me.

The problem is that whether the IETF's submission policies say "AB&C" if the 
submitter does not actually hold that power of attorney for those IPs then 
whether they represent to the IETF or not that they do, their conveyance of 
the IP to the IETF isnt perfectable and as such the public disclosure of the 
IP in the form of a publication becomes a problem for the IETF.

The problem the IETF faces is that it doesnt matter whether the participants 
like this or not, but they are liable for those instances where damage 
occurs when IP's which are not properly licensed for submission to the IETF 
are in fact published by the IETF. And the IETF's trying to make it totally 
the responsibility of the party who is submitting the IP is ludicrous and 
unsupporatable in any Court I have been in. Especially without a formal Take 
Down policy and process which DOES IN FACT rescind the rights to use the 
IETF publication based on an IP Ownership Challenge.

>   and on behalf of the organization the Contributor represents or is

The problem is that the IETF cannot "Assume" or "Presume" that the 
individual in fact has that relationship and legal standing with their 
sponsor's. The fact that the IETF refuses to 'limit its liability' means 
that it and all those potentially at fault can be nailed in court here.

---

From: [email-masked]
Date: Fri, 14 Dec 2007 10:40:17 -0500

> "representing an organization" can be removed or trimmed

Complete removal is not an option, courtesy of "work for hire":
	http://en.wikipedia.org/wiki/Work_for_hire

Sorry,
--David
----------------------------------------------------
David L. Black, Distinguished Engineer
EMC Corporation, 176 South St., Hopkinton, MA  01748
+1 (508) 293-7953             FAX: +1 (508) 293-7786
[email-masked]        Mobile: +1 (978) 394-7754
----------------------------------------------------

---

From: "TS Glassey" <[email-masked]>
Date: Fri, 14 Dec 2007 07:48:25 -0800

----- Original Message ----- 
From: "Harald Alvestrand" <[email-masked]>
To: "Simon Josefsson" <[email-masked]>
Cc: "Frank Ellermann" <[email-masked]>; 
<[email-masked]>
Sent: Friday, December 14, 2007 7:03 AM
Subject: Re: ISSUE: incoming 5.1,5.3: requires participation of 
organizations

>>> Good, maybe the BCP 78 legalese about some contributors "representing an 
>>> organization" can be removed or trimmed
>>> or clarified.
>>>
>>

Meaning if the individual DOESNT have that enduring power of attorney, that 
they commit a "criminal act of fraud by wire" which the IETF becomes a 
co-particpant in since it refuses to put in place a license which would 
allow it to react to a fraudulently filed IP by removing it from use and 
publication.

>
> This can happen by the organization saying

No Harald it doesnt... Saying "Anything" is insufficient. IP cannot be 
transfered nor can an enduring power of attorney be demonstrated by someone 
saying "Hay I have it". In all instances to assert Poweer of Attorney a 
specific declaration and in many instances something from the Sponsor would 
be needed to assure the IETF of that.

> to the contributor "we don't care, we won't claim rights in what you are 
> doing in this context", or by the organization saying to the contribution 
> "you can give away this license on behalf of us". It's the contributor 
> that makes the commitment to the IETF.

The Contributor cannot assign rights it doesnt have no matter how many times 
you try and say that they can. The fact you insist that they do in the 
submission process DOES NOT ABSOLVE THE IETF FROM ITS REPSONSIBILITY under 
US Laws to put in place a competent IP Transfer Process.

> himself, he has to be in the clear with his sponsoring organization.

So what does the IETF do when this turns out to not be true? Negotiate a 
settlement under the threat that if no settlement is forthcoming that the 
parties will be forced out of the IETF? - this is an invitation to 
litigation and possibly jail time for some of the IETF's management for 
Antitrust and Conspiracry. Hell the RICO provisions alone could break the 
ISOC's bank if there was a properly handled Class Action matter against the 
IETF.

>>    and understood the rules and requirements set forth in this document.

Which I think also means that "ALL of those requirements need to be 
disclosed in 5.1 as well" i.e. a listing of each of the key sections of each 
document relevant to the submission contract itself.

>>    and on behalf of the organization the Contributor represents or is

Let me ask how many Legal Departments in the Sponsor's have reviewed their 
liability under BCP78 and BCP79? The answer is ZERO I am betting.  So ANY 
submissions by anyone who has not formally had their IP Law Department 
review the IETF's participation requirements regularly (as in with each 
revision) would be fraudulently misreprenting that they had an informed 
consent from their sponsors to represent their IP interests in the IETF.

>> to share the contribution with the IETF.

> >This would be consistent with

---

From: Simon Josefsson <[email-masked]>
Date: Fri, 14 Dec 2007 16:48:09 +0100

Harald Alvestrand <[email-masked]> writes:

> that the contributor makes the statement (and that it's implicit in
> the contribution).

That's not how I read the quoted text.  The text appear to me to say
that the "organization he or she represents" grants some rights.  If the
intention is that the Contributor is the one granting those rights, and
not the organization, the text seems incorrect.

> This can happen by the organization saying to the contributor "we
> don't care, we won't claim rights in what you are doing in this
> context", or by the organization saying to the contribution "you can
> give away this license on behalf of us". It's the contributor that
> makes the commitment to the IETF.

Typically in the US the organization owns the copyright under the
work-for-hire doctrine.  Still, I agree that it should be the
contributor's responsibility to have negotiated this issues with his
organization.

> himself, he has to be in the clear with his sponsoring organization.

Right.

> That is what I believe the text is saying now.

The text in section 5.1 is less clear, so it could be argued either way,
but the text in section 5.3 seems to clearly say something else.

/Simon

---

From: Simon Josefsson <[email-masked]>
Date: Fri, 14 Dec 2007 16:51:04 +0100

> 	http://en.wikipedia.org/wiki/Work_for_hire

Right, but the text shouldn't say that organizations grant the IETF some
rights.  I believe section 5.1 of -incoming currently says that.

/Simon

---

From: [email-masked]
Date: Fri, 14 Dec 2007 11:03:15 -0500

Simon,

> rights.  I believe section 5.1 of -incoming currently says that.

I believe that "shouldn't" is incorrect ...

When "work for hire" applies, the copyright rights that -incoming
requires for the IETF have to come from the employer, not the
individual.  If -incoming winds up with language that obtains
rights only from the individual and not from the employer, then
when "work for hire" applies, IETF gets no rights (which would
not be a good thing).

I am subject to "work for hire", and I do have my employer's
permission to submit the Internet-Drafts that I author, so IETF
does get the copyright licenses that it needs, but those licenses
come from my employer (EMC), not me as an individual.

Sorry,
--David

---

From: "todd glassey" <[email-masked]>
Date: Fri, 14 Dec 2007 10:11:41 -0800

Harald - the question is not what you or any of the technical bunch of us 
here think, but rather what a Lawyer would think if they were being forced 
to rely on this agreement and that is why this consensus based negotiation 
of the actual language is silly.

Todd Glassey

----- Original Message ----- 
From: "Harald Alvestrand" <[email-masked]>
To: "Simon Josefsson" <[email-masked]>
Cc: "Frank Ellermann" <[email-masked]>; 
<[email-masked]>

> care, we won't claim rights in what you are doing in this context", or by 
> the organization saying to the contribution "you can give away this

---

From: "todd glassey" <[email-masked]>
Date: Fri, 14 Dec 2007 10:18:47 -0800

David -
Do EMC's lawyers regularly review the participation requirements in the IETF
too since they clearly effect them as well, and even if they do, with the
current processes in place today, how would the IETF be able to prove this?

My point in asking that rhetorically is that I think there needs to be is a
formal release between the IETF and the WFH sponsors universally, and this
doesn't exist now. The other problem is that this also creates a liability
for the Sponsor's that they have been ducking around by the IETF's claiming
it doesn't exist.

The problem is if the Sponsored has legal power of attorney for the
submission of IP to the IETF then they also carry with that a liability for
their actions and in fact all the actions in the WG they are part of.

Todd (IAKAL) Glassey

**non Lawyer legal disclaimers apply

----- Original Message ----- 
From: <[email-masked]>
To: <[email-masked]>
Cc: <[email-masked]>
Sent: Friday, December 14, 2007 8:03 AM
Subject: RE: Stupid question: How are "the rights to represent
the Sponsor" as codified in BCP78 and BCP79...

Simon,

Sorry,
--David

---

From: "Frank Ellermann" <[email-masked]>
Date: Fri, 14 Dec 2007 19:27:08 +0100

<[email-masked]> wrote:

> <http://en.wikipedia.org/wiki/Work_for_hire>

Ugh, tons of Wikipedia warning templates indicating
"rat hole", "can of worms", and "run if you can" :-(

 [Later you explain]
> If -incoming winds up with language that obtains
> rights only from the individual and not from the
> employer, then when "work for hire" applies, IETF
> gets no rights (which would not be a good thing).

Likely, but...

> I am subject to "work for hire", and I do have my
> employer's permission to submit the Internet-Drafts
> that I author, so IETF does get the copyright
> licenses that it needs

...OTOH "we" (TINW, and I mean the Trust) take your
word for it, implicitly.  I was quite upset when a
person (later ending up as 2nd IETF certified troll)
bothered the employer of a contributor with stupid
questions.  

Ideally "we" should never care about the affiliation
outside of NomCom selections.  Maybe the IPR WG is
the place where "ideal" and "real" meet... :-(  For
crying out loud, I'm only here because I hate EULAs.

 Frank

---

From: [email-masked]
Date: Fri, 14 Dec 2007 13:37:08 -0500

Todd:

(1) What EMC's lawyers do wrt my IETF participation is none
	of your business.  This is an instance of attorney-
	client privilege.
(2) The assertion that IETF would have to prove that EMC's
	lawyers have done something is ridiculous.
(3) The assertion that a power of attorney (written legal
	document) is or should be involved in submission of
	Internet-Drafts to IETF is also ridiculous.

Enough,
--David

> -----Original Message-----
> From: todd glassey [mailto:[email-masked]] 
> Sent: Friday, December 14, 2007 1:19 PM
> To: Black, David; Simon Josefsson
> Cc: [email-masked]
> Subject: Re: Stupid question: How are "the rights to 
> represent theSponsor" as codified in BCP78 and BCP79...
> 
> David -

---

From: "todd glassey" <[email-masked]>
Date: Fri, 14 Dec 2007 10:51:30 -0800

Typical Technologist Response... But hey - I can do 1..2..3 too.

1)    Unfortunately I believe that YOU ARE WRONG. There is no instance of 
A/C Privilege involved here since YOU PERSONALLY are making a formal 
declaration as to those matters by participating herein.

The instant you did that you make this matter a public one which involves 
the legal standing of not just the IETF but all of the participants in a WG 
and any future relying parties who may be sued by the actual IP Owners in a 
matter to recover damages against their IP for its unauthorized disclosure, 
and that's almost funny considering your response.

2)    What it is, is a clear liability for ANY other participants who may 
come to have their contribution damaged by legal issues with another's 
contribution so ...

3)    To prove this to you I suggest we ASK your General Counsel, Paul 
Dacier, whether he thinks its inside their A/C privilege whether a Public 
Company in the US lies to both the other participants in the IETF and the 
SEC on its filings as to whether it actually does review the contracts. 
Since Paul was rated as one of the 10 top Massachusetts Legal Counsel's he 
will be pretty  quick in reacting too.

I am betting that before the day is over Dacier has a muzzle on you that 
will blow your mind while they start a formal "legal-Impact" and Liability 
review of the IETF Participation Process and their liability for your 
actions within the IETF.

Do you really want to try this?

Todd Glassey

----- Original Message ----- 
From: <[email-masked]>
To: <[email-masked]>
Cc: <[email-masked]>
Sent: Friday, December 14, 2007 10:37 AM
Subject: RE: Stupid question: How are "the rights to represent theSponsor" 

Todd:

Enough,
--David

---

From: Brian E Carpenter <[email-masked]>
Date: Sat, 15 Dec 2007 07:54:50 +1300

Excuse top posting... I would expect this to be checked
by our counsel as part of a final review; I think
we're agreeing violently about the intent.

     Brian

---

From: Simon Josefsson <[email-masked]>
Date: Fri, 14 Dec 2007 22:26:40 +0100

> we're agreeing violently about the intent.

My understanding has been that a WGLC is the final review, as far as the
WG goes.  Will there be other revisions of this document the WG cannot
review?  This seems surprising to me.

/Simon

---

From: Simon Josefsson <[email-masked]>
Date: Fri, 14 Dec 2007 22:36:36 +0100

> when "work for hire" applies, IETF gets no rights (which would

If that is true, I believe the logical conclusion is that Brian's
assertion that the IETF works with individual contributor is incorrect.
The current text means that the IETF do require participation (in a
legal sense) from organizations.

I do wish that Brian is right here, and that the IETF only works with
individual.  This seems to have been the intention in earlier documents.
I do think the current text changes this, and that this is unfortunate,
and probably not what we want.

> come from my employer (EMC), not me as an individual.

Right, and this is probably a rather common scenario.  The document
should be reviewed to make sure it does the right thing in this regard.
What I've seen from the discussion so far doesn't convince me that the
text is sufficiently clear.

/Simon

---

From: "Bill Fardy" <[email-masked]>
Date: Fri, 14 Dec 2007 20:35:17 -0500

> text is sufficiently clear.

based on bcp78 (4.2.a) why would it not be reasonable for the ietf to assume
non-individual contributors are agents, and possess the apparent authority
to transfer rights in their contributions, including those owned by their
principal, i.e. the entity they work for and/or represent?

____________________________________________

---

From: Simon Josefsson <[email-masked]>
Date: Sat, 15 Dec 2007 11:22:55 +0100

> principal, i.e. the entity they work for and/or represent?

I agree that what you suggest would be reasonable.  My reading of
draft-ietf-ipr-3978-incoming-04.txt suggests that this is currently not
the case.  The following paragraph suggests to me that organizations
directly grant rights to the IETF, rather than going indirectly via the
contributor:

(-incoming section 5.3)

/Simon

---

From: "TS Glassey" <[email-masked]>

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

---

From: "TS Glassey" <[email-masked]>
Date: Sat, 15 Dec 2007 06:25:01 -0800

Simon
the problem with that is that there is NO WAY to separate the commercial 
interests from those sponsored by companies which depend on TCP/IP products 
just because the WG drafts language that says 'this is the way it works'. 
The Law and the Rule of Law are key here, so the IETF's IP transfer process 
and the definition's of the parties inside the IETF' need be defined per 
their relationships in more formally tested context. Especially towards 
their personal and sponsor's liabilities for those actions.

This clearly includes ALL of the Networking Infrastructure companies who 
sponsor people here, and if you want, I will formally bring Cisco's, 
Juniper's, Fujitsu's and Qualcomm's counsel's into this matter to 
demonstrate why this simply isn't true - no matter what language this WG 
crafted to make it appear to be so.

We should get a  formal advice on this, but my understanding of Contract Law 
under what is called the UCC (here in the US) sets up that Contracts can 
only be enforced with informed consent and what happens in the IETF now I 
describe as a sanctioned form of Identity Theft ...

Todd Glassey
----- Original Message ----- 
From: "Simon Josefsson" <[email-masked]>
To: "Bill Fardy" <[email-masked]>
Cc: <[email-masked]>; <[email-masked]>
Sent: Saturday, December 15, 2007 2:22 AM
Subject: Re: Stupid question: How are "the rights to 
representtheSponsor"ascodified in BCP78 and BCP79...

>   Trust under all such copyrights and other rights in the [email-masked]><[email-masked]>
	<[email-masked]>
Date: Sat, 15 Dec 2007 06:25:01 -0800
Cc: [email-masked], [email-masked]
Subject: Re: Stupid question: How are "the rights to
	representtheSponsor"ascodified in BCP78 and BCP79...

Simon
the problem with that is that there is NO WAY to separate the commercial 
interests from those sponsored by companies which depend on TCP/IP products 
just because the WG drafts language that says 'this is the way it works'. 
The Law and the Rule of Law are key here, so the IETF's IP transfer process 
and the definition's of the parties inside the IETF' need be defined per 
their relationships in more formally tested context. Especially towards 
their personal and sponsor's liabilities for those actions.

This clearly includes ALL of the Networking Infrastructure companies who 
sponsor people here, and if you want, I will formally bring Cisco's, 
Juniper's, Fujitsu's and Qualcomm's counsel's into this matter to 
demonstrate why this simply isn't true - no matter what language this WG 
crafted to make it appear to be so.

We should get a  formal advice on this, but my understanding of Contract Law 
under what is called the UCC (here in the US) sets up that Contracts can 
only be enforced with informed consent and what happens in the IETF now I 
describe as a sanctioned form of Identity Theft ...

Todd Glassey
----- Original Message ----- 
From: "Simon Josefsson" <[email-masked]>
To: "Bill Fardy" <[email-masked]>
Cc: <[email-masked]>; <[email-masked]>
Sent: Saturday, December 15, 2007 2:22 AM
Subject: Re: Stupid question: How are "the rights to 
representtheSponsor"ascodified in BCP78 and BCP79...

---

From: Don Armstrong <[email-masked]>
Date: Sat, 15 Dec 2007 17:50:35 -0800

On Fri, 14 Dec 2007, Brian E Carpenter wrote:
> I don't mean that the IETF should wilfully ignore rights; but we
> *presume* that contributors aren't misrepresenting their rights when
> they make a contribution.

We can presume that, but in the case where someone has misrepresented
their rights to contributed works, the IETF doesn't magically get the
rights to them either.

> contributor misrepresented their rights, that would obviously end up
> in the hands of the IETF's counsel. This has happened, extremely
> rarely, and been resolved by negotiation. It's unlikely to be
> clear-cut, though.

Indeed, thus "the IETF has the right to make derivative works in any
case" is not correct. [Fruit of a poisoned tree, et al.]

To cause problems such as this from breaking out at all is why it's
generally a good idea to require contributor's employers to waive
rights specifically in writing.

Don Armstrong

-- 
Fate and Temperament are two words for one and the same concept.
 -- Novalis [Hermann Hesse _Demian_]

---

From: "TS Glassey" <[email-masked]>
Date: Sun, 16 Dec 2007 06:11:14 -0800

I agree Don - What I am thinking is that at the very minimum ALL submissions 
which come in from an SMTP type submission channel need to be digitally 
signed with a publicly resolvable C.A. That way at least the IETF could 
claim that it relied on 'a strong eSign control' to assure proper 
paperless-transfer of the IP rights.

My biggest concern is that this entire system of IP management is based on a 
set of ever changing and never fully disclosed controls, and ones which have 
never been fully subjected to a Risk/Control Analysis to reveal the problems 
with it.

Anyway - thanks!

Todd

----- Original Message ----- 
From: "Don Armstrong" <[email-masked]>
To: <[email-masked]>
Sent: Saturday, December 15, 2007 5:50 PM
Subject: Re: Stupid question: How are "the rights to represent the 
Sponsor"as codified in BCP78 and BCP79...

---

From: Russ Housley <[email-masked]>
Date: Sun, 16 Dec 2007 15:05:50 -0500

Why does the IPR statement need better authentication that the 
Internet-Draft itself?  This has been asked before, but I have not 
seen a convincing response.

Russ

At 09:11 AM 12/16/2007, TS Glassey wrote:
>I agree Don - What I am thinking is that at the very minimum ALL 
>submissions which come in from an SMTP type submission channel need 
>to be digitally signed with a publicly resolvable C.A. That way at 
>least the IETF could claim that it relied on 'a strong eSign 
>control' to assure proper paperless-transfer of the IP rights.
>
>My biggest concern is that this entire system of IP management is 
>based on a set of ever changing and never fully disclosed controls, 
>and ones which have never been fully subjected to a Risk/Control 
>Analysis to reveal the problems with it.
>
>Anyway - thanks!
>
>Todd
>
>----- Original Message ----- From: "Don Armstrong" <[email-masked]>
>To: <[email-masked]>

---

From: Don Armstrong <[email-masked]>
Date: Sun, 16 Dec 2007 14:04:21 -0800

> control' to assure proper paperless-transfer of the IP rights.

This doesn't really gain us anything, as getting a CA and signing a
submission is trivial. The important thing is that the copyright
holders of works that are submitted for inclusion in IETF processes
properly licence the IETF. License forms signed by the submitter and
employer if applicable are the general method of doing this that I've
seen.[1]

Don Armstrong

1: It's what almost every scientific journal as well as what the FSF
requires; signing and faxing in (or attaching a signed, scanned pdf
of) a form isn't terribly difficult, and takes us to the point of
being ok, short of actual willfull misrepresentation of the nature of
the submitted work.
-- 
She was alot like starbucks.
IE, generic and expensive.
 -- hugh macleod http://www.gapingvoid.com/Moveable_Type/archives/001376.html

---

From: "TS Glassey" <[email-masked]>
Date: Sun, 16 Dec 2007 14:58:45 -0800

Russ
----- Original Message ----- 
From: "Russ Housley" <[email-masked]>
To: "TS Glassey" <[email-masked]>; <[email-masked]>
Sent: Sunday, December 16, 2007 12:05 PM
Subject: Re: Stupid question: How are "the rights to represent the 

> Internet-Draft itself?  This has been asked before, but I have not seen a 
> convincing response.

Lorraine v Markel is the ONLY response you need here. 
http://www.mdd.uscourts.gov/Opinions152/Opinions/Lorraine%20v.%20Markel%20-%20ESIADMISSIBILITY%20OPINION.pdf

In fact Harald challanged me to come up with a new court ruling that 
enforced that unauthentictaed email based systems we not going to be 
supported by the US Courts and that case is in fact Lorraine v Markel - 
PWG-06-1983

Todd

---

From: "TS Glassey" <[email-masked]>
Date: Sun, 16 Dec 2007 15:05:51 -0800

----- Original Message ----- 
From: "Don Armstrong" <[email-masked]>
To: <[email-masked]>
Sent: Sunday, December 16, 2007 2:04 PM
Subject: Re: Stupid question: How are "the rights to represent theSponsor"as 
codified in BCP78 and BCP79...

> submission is trivial.

The IETF itself is really looking for something that can demonstrate that 
its processes meet the same requirements that other IP transfer processes 
use, and I agree that for that ultimately paper is probably better, but 
assuming that the IETF is unwilling to go to that expense, then a digital 
paperless process which is strong and has enough steps to show that there 
was some informed consent in participating with the process itself.

> The important thing is that the copyright
> properly licence the IETF.

Ultimately of course. But more than that, for an operational perspective at 
the Editor's Desk I think what we are looking to prove is that there is a 
mechanism that allows the IETF to document that it did proper process when 
accepting 'the assertion of the submitter' as to that they "have those IP 
rights" and can assign the republication-standards rights to the IETF with 
the submission.

> License forms signed by the submitter and

Agreed.

> -- hugh macleod 
> http://www.gapingvoid.com/Moveable_Type/archives/001376.html
>

---

From: Harald Alvestrand <[email-masked]>
Date: Mon, 17 Dec 2007 14:54:39 +0100

I have created #1539 to track this issue.

---

From: "TS Glassey" <[email-masked]>
Date: Mon, 17 Dec 2007 06:30:49 -0800

Per the standard setup in Grimm's ruling  for Lorraine v Markel here in the 
US this WILL NOT WORK.

>>    and understood the rules and requirements set forth in this document.

Nope - ALL of the documents relevent would need to be enumerated here and 
referring to them as an abstraction doesnt give the party relying on this 
enough info to make an "Informed Consent Decision" from this process

>>    and on behalf of the organization the Contributor represents or is

Which again makes the IETF liable for accepting a piece of data without the 
strong authentication that Judge Grimm's ruling mandates so no matter what 
the IETF's member's may say by creating this set of fantasy's they are just 
that, fantasy's and will be set aside in court.

This MUST be agreed to then by those Sponsor's and not their sonosored 
parties since those parties DO NOT an enforceable power of attorney for 
those entities. That is to say Harald - whether you like it or not.

This is like saying to the foxes while they are sitting in the hen-house 
"Hey you guys dont eat chicken do you" and getting a response of "we are 
offended that you would even ask us that!" from the foxes while they turn to 
respond from their actions in their shredding the chickens in the Hen 
House....

>> only working with individuals rather than external organizations.

Simon - Because the IETF say's "Hey we are not responsible for what people 
submit to us" is pure garbage in my opinion.  You and everyone else here and 
our sponsor's are liable for what happens and has happened here...

Wanna bet how true this is?

Todd

---

From: Brian E Carpenter <[email-masked]>
Date: Thu, 20 Dec 2007 15:45:54 +1300

> review?  This seems surprising to me.

The WG can always review, of course - just as it can review
changes made during IETF Last Call or IESG Review. I'd personally
be pretty unhappy if there isn't a final review by counsel,
however.

     Brian

---

From: Simon Josefsson <[email-masked]>
Date: Thu, 20 Dec 2007 11:33:25 +0100

> be pretty unhappy if there isn't a final review by counsel,

Right.  I was surprised that the counsel hadn't reviewed the document
already, before it went to WGLC.  If there are significant changes to
the document based on IETF-wide last call, IESG review, or review by the
counsel, I'd expect the changes will be run by the WG.

/Simon