Subject: #1539 proposed resolution: Incoming 5.1 and 5.3: Language referring to contributors' sponsors

From: Harald Alvestrand <[email-masked]>
Date: Fri, 21 Dec 2007 09:06:22 +0100

I suggest that we modify 5.1 and 5.3 as follows:

5.1:

<OLD>

5.1. General Policy
   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.  No further
   acknowledgement, signature or other action is required to bind a
   Contributor to these terms and conditions.  The operation of the IETF
   and the work conducted by its many participants is dependent on such
   agreement by each Contributor, and each IETF participant expressly
   relies on the agreement of each Contributor to the terms and
   conditions set forth in this document.

<NEW>

5.1. General Policy
   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.

   The Contributor is further deemed to have agreed that he/she has
   obtained the necessary permissions to enter into such an agreement
   from any party that the Contributor reasonably and personally knows
   may have rights in the Contribution, including, but not limited
   to, the Contributor's sponsor or employer.

   No further
   acknowledgement, signature or other action is required to bind a
   Contributor to these terms and conditions.  The operation of the IETF
   and the work conducted by its many participants is dependent on such
   agreement by each Contributor, and each IETF participant expressly
   relies on the agreement of each Contributor to the terms and
   conditions set forth in this document.

5.3:

<OLD>

   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:

<NEW>

   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 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:

That is - simply delete the reference to the sponsor here; the statement 
under
"general policy" should be enough.

I believe this resolution is in accordance with the expressed wishes of 
the WG to have the problem of getting permission to post be the 
contributor's problem, not the IETF's.

Comments?

                     Harald

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---

From: [email-masked]
Date: Fri, 21 Dec 2007 08:34:44 -0500

Harald,

This is close (and I'd like to hear Jorge's opinion), but I'm
concerned that "work for hire" may escape.  The failure mode of
concern is that an individual Contributor covered by "work for
hire" grants a copyright license that doesn't bind the employer
(owner of the copyright).  The resulting copyright license may
be simultaneously valid (no legal defects) and vacuous (doesn't
do anything because the Contributor doesn't control the copyright).
It's not clear to me whether the proposed "obtained the necessary
permissions" language in 5.1 is sufficient to block this "valid
and vacuous" copyright license scenario.

While I know what we would like, I think it's more important to
have our legal expert (Jorge) tell us what will actually get the
job done, and hence I'm not going to propose alternate language
in this message.

Thanks,
--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
----------------------------------------------------

> That is - simply delete the reference to the sponsor here; the
statement under

---

From: "TS Glassey" <[email-masked]>
Date: Fri, 21 Dec 2007 15:18:03 -0800

----- Original Message ----- 
From: "Harald Alvestrand" <[email-masked]>
To: <[email-masked]>
Sent: Friday, December 21, 2007 12:06 AM
Subject: #1539 proposed resolution: Incoming 5.1 and 5.3: Language referring 
to contributors' sponsors

>   sponsored by (if any), when submitting the Contribution.

This DOESNT work. It MUST certify that all of the key documents are read and 
agreed to. That means the language MUST read something to closer to

>   Contribution, and each named co-Contributor, certifies that they have 
> read and agree to the terms and conditions for submitting IP for vetting 
> to the IETF.

>  deemed to have read
>   sponsored by (if any), when submitting the Contribution.

The term DEEMED here means "We assume" and that isnt binding in this 
instance since your assumption is not in compliance with the expectations of 
the submitters.

>   Contributor to these terms and conditions.

The problem is that this doesnt meet US or other IP Conveyance  requirements 
in the US and/or other jurisdictions.

> The operation of the IETF

---

From: Harald Alvestrand <[email-masked]>
Date: Sat, 22 Dec 2007 12:20:12 +0100

Todd,

TS Glassey skrev:
>
> This DOESNT work. It MUST certify that all of the key documents are
> read and agreed to. That means the language MUST read something to
> closer to
>
>> 5.1. General Policy
>>   Contribution, and each named co-Contributor, certifies that they
>> have read and agree to the terms and conditions for submitting IP for
>> vetting to the IETF.
you have been insisting that the WG should use the term "vetting" at
least since 2003, with zero indication that the WG agrees with you.

I'm adding "vetting" to "transfer" as subjects that will get your
privilleges suspended for off-topic posting.

                       Harald

---

From: "Frank Ellermann" <[email-masked]>
Date: Sat, 22 Dec 2007 18:42:08 +0100

> Comments?

+1

---

From: Harald Alvestrand <[email-masked]>
Date: Sun, 23 Dec 2007 06:45:05 +0100

> job done, and hence I'm not going to propose alternate language
At the moment, in the absence of a continuous dialogue with legal
counsel, I think the best we can do is to make text that explains to
*us* what we want.

We do have a problem with "valid and vacuous" - what I think the
language is intended to do is to say that if we get into this problem -
the contributor has lied to us.

Another stab at expressing what we want, making it explicit that
work-for-hire is included, so that we can discuss with counsel how to
get a lawyer or judge to understand it the way we want it to be understood:

<OLD>

5.1. General Policy

<NEW>

5.1. General Policy

  The Contributor is further deemed to have agreed that he/she has
  obtained the necessary permissions to enter into such an agreement
  from any party that the Contributor reasonably and personally knows
  may have rights in the Contribution, including, but not limited
  to, the Contributor's sponsor, employer or contractor in a
  work-for-hire relationship.

  No further

---

From: "TS Glassey" <[email-masked]>
Date: Sun, 23 Dec 2007 06:34:43 -0800

The languages needs to

    1)    Define the problem

    2)    Define the IETF's response

    3)    Define the Relying Party's response when they find they are 
subjected to a problem like this.

Then the lawyers need to be told specifically what the intent's are so they 
can make competent statement's about the type of language, whether 
boilerplate or Scenario-Specific content is needed.

That this group continues to try and create a set of UCC enforceable 
contracts is amusing.

What needs to happen is to hand this task to Wilmer-Hale and then have this 
WG approve their output.

Todd
----- Original Message ----- 
From: "Harald Alvestrand" <[email-masked]>
To: <[email-masked]>
Cc: <[email-masked]>
Sent: Saturday, December 22, 2007 9:45 PM
Subject: Re: #1539 proposed resolution: Incoming 5.1 and 5.3: Language 
referring to contributors' sponsors

---

From: [email-masked]
Date: Sun, 23 Dec 2007 10:53:22 -0500

Harald,

> language is intended to do is to say that if we get into this 
> problem - the contributor has lied to us.

I think the goal should not just be that the contributor "lied"
but rather that the contributor "deliberately lied" and "knowingly
lied" - i.e., not only did the Contributor fail to carry out his/her
obligation, but the Contributor also knew or should have known (i.e.,
a reasonable person would have known) that s/he had an obligation.

Beyond this, we want the owner of the rights under work-for-hire
to be held responsible for the Contributor's lie if possible -
this won't always be possible, e.g., if the relationship has
lapsed.  If we set a high enough bar for the misbehavior required,
the consequences should reach back through contractual, employment,
etc. relationships.  If this is successful, the resulting ability
to hold the rights owner responsible is what substitutes for the
proposed-to-be-removed language that obtains a copyright
license from the represented or sponsoring organization.  This
new approach has the advantage of doing something useful in the
presence of a lapsed work-for-hire relationship.

> get a lawyer or judge to understand it the way we want it to 

[... snip ...]

>   work-for-hire relationship.

Expansion for more clarity (at least for us):

... including, but not limited to,
the Contributor's sponsor, employer or contractor who possesses
rights in the Contribution via a work-for-hire relationship.

This is skating sufficiently close to the line of what will vs.
won't work that I will need to ask EMC's counsel to review and
comment after the first of the year.

Thanks,
--David