Subject: Who owns the Internet Rules?

From: "Lawrence Rosen" <[email-masked]>
Date: Tue, 7 Apr 2009 10:03:20 -0700

Thank you, Dave, for writing and sharing your excellent op-ed. It explains
much about the RFCs that have become the essential technical standards for
our Internet. 

Your history poses for me, a copyright lawyer, a fascinating legal issue:
Who owns the copyright in that RFC 1 that you worked on those
"nerve-wracking" days and nights long ago as a graduate student, and who
owns the copyrights in the more than 5,000 RFCs written by many others since
then?

Clearly that RFC 1 contains your words and so you own a copyright interest,
unless by force of law or contract you assigned your ownership interest to
someone else. Nothing you wrote suggests you ever did any such thing,
although perhaps (?) your faculty advisor or UCLA claims your work. I assume
you continue to own your RFC 1 words to this day and that you can copy,
modify, and distribute them without asking anyone else's permission.

But your history also tells a different story of copyright ownership. You
refer to a "network" of graduate students and staff from four universities
who worked together on this first RFC. "We thought maybe we'd put together a
few temporary, informal memos on network protocols, the rules by which
computers exchange information. I offered to organize our early notes." 

An organizer of notes is not usually the exclusive copyright owner of the
resulting document.

Throughout your article you describe the joint effort that you and your
co-authors undertook. "We started writing these notes..." and "we wrote our
visions of the future on paper..." are obvious indications that you didn't
create alone, those many years ago. The evolving RFC system that you helped
to create embodied an essential principle that guaranteed success: "Everyone
was welcome to propose ideas, and if enough people liked it and used it, the
design became a standard." 

That is the joint way that RFC creation has always worked, and as I've been
privileged to witness in recent years, so it works to this day.

You also described a publishing network that intended to be "a building
block available to others." Your "loose, unnamed meetings" became the
"Network Working Group" and ultimately the "Internet Engineering Task
Force." You describe "the culture" of IETF, and the word "we" correctly
dominates in your article.

Your history is a copyright law description of a "joint work". RFC 1 is not
owned exclusively by you--although you retain your ownership interest as I
described it above. But from the time of its publication forty years ago
this April 6, RFC 1 is the joint copyright of the informal organization that
has since evolved into the IETF Trust.

Thank you again!

/Larry
 
Lawrence Rosen
Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242 * cell: 707-478-8932 * fax: 707-485-1243
Skype: LawrenceRosen

> -----Original Message-----
> From: [email-masked] [mailto:[email-masked]] On Behalf Of
> Dave CROCKER
> Sent: Tuesday, April 07, 2009 4:20 AM
> To: IETF Discussion
> Subject: [Fwd: How the Internet Got Its Rules ]
> 
> 
>   <http://www.nytimes.com/2009/04/07/opinion/07crocker.html?_r=1&emc=eta1>

> 
> 
> Op-Ed Contributor
> By STEPHEN D. CROCKER
> Published: April 6, 2009
> 
> Bethesda, Md.
> 
> 
> TODAY is an important date in the history of the Internet: the 40th
> anniversary
> of what is known as the Request for Comments. Outside the technical
> community,
> not many people know about the R.F.C.'s, but these humble documents shape
> the
> Internet's inner workings and have played a significant role in its
> success...
> 
> --
> 
>    Dave Crocker
>    Brandenburg InternetWorking
>    bbiw.net
> _______________________________________________
> Ietf mailing list
> [email-masked]
> https://www.ietf.org/mailman/listinfo/ietf

---

From: Todd Glassey CISM CIFI <[email-masked]>
Date: Thu, 16 Apr 2009 07:32:50 -0700

> much about the RFCs that have become the essential technical standards for
Larry
RFC's ARE NOT standards - they are Requests for Comments and the failure 
of the IETF to limit their use to that has perverted the entire 
operations of the standards development effort - especially when a RFC 
can be used in the commercial world to assert a standards status - which 
as you so clearly articulated is what you believe to be true.
> owns the copyrights in the more than 5,000 RFCs written by many others since
How about any of those early pre RFC2026 documents or the documents from 
RFC2026 onward as well.
> Ipr-wg mailing list
> [email-masked]
> https://www.ietf.org/mailman/listinfo/ipr-wg
>
>

---

From: "Lawrence Rosen" <[email-masked]>
Date: Thu, 16 Apr 2009 09:03:24 -0700

Todd Glassey wrote:
> RFC's ARE NOT standards - they are Requests for Comments 
<snip>

Call them what you will. They are still joint works of the IETF Trust
written and published collectively under the process described by Steve
Crocker. Nothing is an RFC until the IETF says it is.

The rest of your email is irrelevant to my point.

/Larry

---

From: John C Klensin <[email-masked]>
Date: Thu, 16 Apr 2009 13:40:34 -0400

--On Thursday, April 16, 2009 09:03 -0700 Lawrence Rosen
<[email-masked]> wrote:

>...
> Nothing is an RFC until the IETF says it is.

Actually, even that is not true.
See RFCs 4844 - 4846.

   john

---

From: "Lawrence Rosen" <[email-masked]>
Date: Thu, 16 Apr 2009 12:36:36 -0700

John, 

> Actually, even that is not true.

Are you hinting that even my crazy relatives could publish an RFC on April 1
and declare it an official document? No input from anyone else who is a part
of the IETF process?

Why are we here? [Oh yes, I see the reference in RFC 4846 to "Satirical
materials."]

My *only* point in this thread was to point out that the copyrights in RFCs
are jointly own by the IETF Trust that coordinates and on whose collective
behalf the work is created. That is why all three RFCs 4844-4846 contain the
following copyright notice:

     Copyright (C) The IETF Trust (2007).

This is how RFC 4844 itself summarizes our joint effort: "This document
describes the framework for an RFC Series and an RFC Editor function that
incorporate the principles of organized community involvement and
accountability that has become necessary as the Internet technical community
has grown, thereby enabling the RFC Series to continue to fulfill its
mandate."

And RFC 4846 says this: "In all cases, the ultimate decision to publish or
not publish, and with what text, rests with the RFC Editor." 

However much nonsense must intervene in order to turn a document into an
IETF-approved RFC is of no moment. Lord knows that lots of nonsense is
copyrighted. All that matters is that the IETF Trust jointly owns the
copyright in that nonsense and therefore need not ask anyone's permission to
use it.

/Larry

> From: John C Klensin [mailto:[email-masked]]
> Sent: Thursday, April 16, 2009 10:41 AM
> To: [email-masked]
> Cc: 'Contreras, Jorge'; [email-masked]
> Subject: RE: Who owns the Internet Rules?
> 
> 
>

---

From: Todd Glassey CISM CIFI <[email-masked]>
Date: Thu, 16 Apr 2009 16:08:56 -0700

Lawrence Rosen wrote:
> The rest of your email is irrelevant to my point..
>   
Larry - Irrelevant? no - just tangential.

As to the issue of the RFC publication rights - the fact that RFC2026 
gave away the RFC control process means that the IETF no longer owns 
control of those or the process nor does the Trust. This ISN'T rocket 
science - its simple contract analysis.

The IETF's publishing its own process documents and 
releasing/re-licensing  to the public under an Any and All uses 
constraint gave way their control so now all anyone has to do is publish 
a Document in any derivative format of the template they want and to 
call it an RFC. In fact counsel  - the matter is that the IETF gave all 
of its processes away years ago so anyone can publish an IETF standard.
> /Larry
>   
> ------------------------------------------------------------------------
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---

From: John C Klensin <[email-masked]>
Date: Fri, 17 Apr 2009 01:11:49 -0400

--On Thursday, April 16, 2009 12:36 -0700 Lawrence Rosen
<[email-masked]> wrote:

> Are you hinting that even my crazy relatives could publish an
> RFC on April 1 and declare it an official document?

No April 1 RFC is "an official document", so, no, they could not
do that.  On the other hand, if they submitted a satirical draft
to the RFC Editor and the RFC Editor (who does not have any
authority to say things on behalf of the IETF) finds it
sufficiently amusing, it could be published as an RFC.

> No input
> from anyone else who is a part of the IETF process?

I don't understand how you get from "until the IETF says it is"
(an organizational decision) to "input from anyone ... who is
part of the IETF process".  I'm "part of the Massachusetts
process": I vote in state elections, I periodically express
opinions in other ways, and I pay a lot of taxes.  But that
doesn't imply that anything I do has Massachusetts approval to
do it.

> Why are we here? [Oh yes, I see the reference in RFC 4846 to
> "Satirical materials."]

Independent of "why we are here", the RFC Series predates the
IETF (and the IETF Trust, etc.) and has always included a lot of
documents that are not intended to be, or to be interpreted as,
standards.

> My *only* point in this thread was to point out that the
> copyrights in RFCs are jointly own by the IETF Trust that
> coordinates and on whose collective behalf the work is
> created. 

"... collective behalf the work is created" may have some legal
meaning that I don't understand, but, taken in its common-sense
meaning, no.  And the IETF Trust does not coordinate much of
anything.  It is simply a structure for accumulating whatever
rights come to it (and/or the IETF) as a consequence of the
publication process ... much more a copyright aggregator than an
author, at least as I understand those terms.

When I write a journal article that was not specifically
solicited and paid for, that article usually ends up with a
copyright notice on it that points to the publisher.  The
article isn't written for the benefit of the publisher (at least
in the plain English sense of those terms) but for some
combination of my benefit and, I'd like to believe, the benefit
of some professional audience.  In return for publishing and
distributing it (and maybe some other services) the publisher
insists on transfer of the copyright (modulo whatever rights I
may get to reserve or get back).  And every time I have gone
through that process, that copyright transfer occurs via a
document and wet signature, not by some claim that, because the
publisher made a decision to public and did some editing and
printing (which is more than the IETF Trust does), the document
becomes a joint work with the publisher as co-author.  

I suspect that there is a joint or collective work theory out
there for IETF-stream documents.  But I don't think you are
going to find it by assuming that all of the streams are the
same, that all RFCs are the same, that all RFCs are standards
whether the IETF thinks so or not, and so on.

> That is why all three RFCs 4844-4846 contain the
> This is how RFC 4844 itself summarizes our joint effort: "This
> document describes the framework for an RFC Series and an RFC
> Editor function that incorporate the principles of organized
> community involvement and accountability that has become
> necessary as the Internet technical community has grown,
> thereby enabling the RFC Series to continue to fulfill its
> mandate."
> 
> And RFC 4846 says this: "In all cases, the ultimate decision
> to publish or not publish, and with what text, rests with the
> RFC Editor." 

And the RFC Editor isn't the IETF.  Regardless of how many times
you assert the following, it won't make that so.  And 4844 is
fairly clear about that and 4846 is even more so.
 
    john

---

From: "Lawrence Rosen" <[email-masked]>
Date: Fri, 17 Apr 2009 11:47:55 -0700

> doesn't imply that anything I do has Massachusetts approval to

I understand your relationship to the State of Massachusetts, perhaps as a
lawyer even more than you do. :-) That has absolutely nothing to do with the
relationship between your copyright in a document you submit to the IETF
Trust and the IETF Trust's copyright in that same document (and expressly
claimed in a copyright notice, by the way!). That requires an interpretation
of federal copyright law which preempts Massachusetts law and deals with the
joint authorship of certain copyrightable works.

To get you to focus properly, let me ask you a direct question: Of all of
the documents you personally have contributed to in IETF, is there any RFC
in which you claim an exclusive copyright not jointly owned by the IETF
Trust?

If so, there is already an online procedure for filing such claims. 

I don't want us to fight over the IETF Trust's claim of joint ownership
unless you want to fight with me over some specific exclusive right you
claim instead. Courts and the IETF Trust ought not to worry about mere
hypothetical situations, especially since the IETF Trust has already claimed
its copyright interest via an express copyright notice and you haven't
objected.

> there for IETF-stream documents.  

That is the theory I'm attempting to enunciate.

Best regards,

/Larry

Lawrence Rosen

> Sent: Thursday, April 16, 2009 10:12 PM
> To: [email-masked]