Subject: RE: [dhcwg] IPR statement related to draft-ietf-dhc-subscriber-id-X.txt

From: "Bernie Volz" <[email-masked]>
Date: Thu, 12 Feb 2004 14:26:41 -0500

BTW, perhaps the stricter terms to say that it is royalty free greatly
weaken the case for cross-licensing and hence patent holders are unlikely to
ever state that explicitly, even when they have no intention of charging
royalties.

- Bernie

-----Original Message-----
From: Bernie Volz [mailto:[email-masked]] 
Sent: Thursday, February 12, 2004 2:23 PM
To: [email-masked]'; [email-masked]'
Subject: RE: [dhcwg] IPR statement related to
draft-ietf-dhc-subscriber-id-X.txt 

Would Ted (or ISC) really be liable for this? Wouldn't the USERS or
COMMERCIAL DISTRIBUTORS be the ones liable? Sounds like you have much more
practical experience with this sort of stuff, but it just seems to me that
unless Ted (or ISC) claims that the software is patent free, that's
something for the users/distributors of the freely available software to
contend with?

This won't necessarily prevent Ted (or ISC) from being sued (anyone can be
sued) and likely the patent holder would request an injunction to stop
distribution of the free software.

- Bernie

-----Original Message-----
From: [email-masked] [mailto:[email-masked]] On Behalf Of Barr
Hibbs
Sent: Thursday, February 12, 2004 1:08 PM
To: [email-masked]
Subject: RE: [dhcwg] IPR statement related to
draft-ietf-dhc-subscriber-id-X.txt 

> -----Original Message-----
> From: Mark Stapp
> Sent: Wednesday, February 11, 2004 12:32
>
> where can we go from here? the people who want to stop this draft are
> basically saying, "we will stop any drafts from people who've agreed to
> RAND license their IP, and we will stop any drafts as soon as people other
> than the authors agree to RAND license their IP."
>
...Mark, you've missed my objection:  I was trying to say that while only
the IETF as a whole can address IPR issues (and believe me, NO ONE would
want a situation where every single WG or worse, every RFC had different IPR
terms and conditions) the "reasonable and non-discriminatory" terms may be
very difficult or impossible for some vendors to meet.

While Ted is not personally the owner of the ISC DHCPD implementation,
imagine if he were, and that there were just 3 verified IPR claims against
DHCPD based on patents, trade secrets, copyrights, or other mechanisms.
Let's continue by assuming that each "reasonable" license term called for
the payment of $1 for each copy distributed.  So, $3 per copy, what's the
big deal?  Given that Ted would probably be distributing DHCPD as
open-source freeware initially, with anonymous FTP used for distribution,
that distribution model would have to end and copies distributed for, say,
$3.95 each.

The extra charge is necessary to pay for the entire e-commerce application
required to register downloads, collect money to pay the license holders,
and to build up a reserve to defend himself when one of his customers
illicitly copies the distribution and shares it without license fees flowing
back to the IPR holders.  There is no way, in my opinion, to protect oneself
from every possible threat concerning the use of someone else's IPR when
license terms include such vague (and potentially meaningless) language as
"reasonable and non-discriminatory."

I won't pretend to be an expert on torts, patent and copyright law, or IPR,
but I have been on serveral civil juries deciding breach of contract suits,
nearly all turning on the question of whether one party or the other truly
possessed rights to some property or compensation.  In my limited
experience, unless the holder of some valuable commodity vigorously and
frequently defends their rights, juries (at least in California and New
York) seem overwhelmingly to determine that while they may have had rights
"de jure" their inaction defending those rights resulted in a "de facto"
abandonment of those rights.

So not only does a small vendor have to maintain an e-commerce site and
collect monies to pay IPR license holders in my example, the vendor must
also vigorously seek out and prosecute those who abuse or ignore the terms
of the vendor's license agreement (instituted to protect the IPR holders
among other reasons.)  So that $3.95 download and usage license fee is
probably too small by an order of magnitude.

Imagine if the Free Software Foundation's C/C++ compilers and related tools
were suddenly burdened with license fees, no matter how modest, for a
variety of IPR holders.

> it doesn't seem reasonable to me to expect that each vendor should have to
> meet different IPR expectations in response to the different temperatures
> of all of the individual working groups. the ietf's consistent overall
> expectation allows the standards process to continue in a world where
> intellectual property exists, and allows competing commercial vendors to
> contribute. some people in the wg appear to believe that stopping this
> draft will allow them to make a statement to the ietf which will
> lead it to change its expectations in a way that suits them. as someone
> whose work has become the victim of this energy, I can only ask again that
> the people who object to the ietf's overall expectation address it in the
> IPR wg.
>
...you're right, Mark...  there should be only one IPR license agreement for
all uses under the guise of IETF, from building commercial or open-source
products to discussing or teaching the technology, and it should meet nearly
impossible criteria:  (1) it should be generic enough not to limit an IPR
holder's claims as circumstances and technology changes, (2) it should be
specific enough so that no vendor is left struggling to determine exactly
what uses are permitted (including derivative products) or what are the
terms for use, and (3) it needs to offer protection to a vendor if their
products are illicitly copied and distributed (effectively holding them
harmless against IPR license claims for misuse of products based on or
including someone else's protected intellectual property.)

I remember the Chicago meeting, when the Relay Agent Information Option
nearly lost it's support from the working group because of Motorola's IPR
claims.  My memory was a bit faulty, as I had thought that Motorola had
agreed to the same IPR limitations as had all other IPR holders whose
technologies had been used in RFCs.  I'm surprised to learn today that they
were held to a stricter term.  I don't think this is a good idea at all.  I
do think that we need one solution which addresses the concerns raised in
this message exchange, and as much as I don't want to stomp on your work,
which I'm sure was done innocent of any knowledge of using someone else's
IPR, I fully believe that it is in the best interest of all IETF
contributors to resolve the issues Ted raised.

Finally, as far as the much-delayed DHCP server MIB is concerned, you are
completely correct:  I would be thoroughly disingenuous if I applied a
different standard to my contributions than to those of others.  I'm not
going to withdraw the draft until I've learned more about how IBM's patent
on "Network Alert Message Construction" has actually affected SNMP
implementers, but a quick web search turned up several SNMP agent and
manager implementations whose licenses make copyright claims, but none that
even acknowledge the IBM patent.

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---

From: Ted Lemon <[email-masked]>
Date: Thu, 12 Feb 2004 16:50:26 -0500

> ever state that explicitly, even when they have no intention of 

That seems unlikely.   Furthermore, it is immaterial.   I don't think 
it's a good idea for the IETF to release standards that are encumbered 
in this way, regardless of what the implications are for the patent 
holder if they grant zero-royalty rights.  If there's a strong reason 
to do it, then maybe we have to do it.   In this case, there is no 
clear benefit to doing it, as far as I can tell.

It's clearly within the purview of each working group to say "we won't 
use this thing because of IPR restrictions we don't like."