Subject: Information about error in the IPR disclosure form

From: IETF Chair <[email-masked]>
Date: Mon, 25 Oct 2021 13:43:14 -0700

We recently became aware of an error on the IETF IPR disclosure form: text on the form appears to suggest that disclosures and any stated licensing commitments apply only to "standards-track" documents (the form states: "Above licensing declaration is limited solely to standards-track IETF documents"). However, IETF participants routinely file disclosures and make licensing commitments on non-standards-track documents, such as Experimental or Informational RFCs or Internet-Drafts intending to be published as such. The error has led to some odd dissonance, such as where a disclosing party has explicitly committed to license implementations of non-standards-track RFCs cited in their disclosure form, via a form that appears to undermine the stated commitment.  
 
Some non-standards-track RFCs are widely implemented, and implementers expect that the express licensing commitments made in connection with these RFCs are binding.
 
We traced the error back to a change to the disclosure form made in late December of 2014. Prior to 2012, IPR disclosures were made to the secretariat by e-mail using the form described in RFC 3905. In 2012, a web form was created that used more-or-less the same format. Unfortunately, the data from the checkbox indicating that the licensing declaration "is limited solely to standards-track RFCs" was accidentally not saved for those disclosures, meaning if anyone checked them, we don't have a record of it. For this reason, a decision was made in 2014 to eliminate this checkbox option, but an error was made in implementing this decision, resulting in the checkbox itself being eliminated, but the associated text remaining on the form, introducing an unintended suggestion that the limitation applied to all disclosures. 
 
Uncovering the fact that the checkbox data from 2012-14 was not saved raised an additional concern. During that period a party may have made a disclosure on a non-standards-track document and affirmatively checked this box. This combination would lead to the same dissonance identified above—a party would have made an explicit license commitment related to a non-standards-track document that would appear to be undermined by a contrary statement—but the intent of the discloser in this case would be a degree murkier. We simply don’t know if this ever happened.  
 
Precise details of the 2014 decision to eliminate the checkbox appear to have been lost to history, but the logic seems clear: if a party chooses to file a disclosure and make an associated express license commitment on technology embodied in a non-standards-track IETF document, nobody's interest is served by introducing ambiguity into the equation. Promising to license but then checking a box that undermined this promise wouldn't make sense, so removing this checkbox option was logical, particularly given that parties that specifically desired to exclude these types of specifications from their licensing commitment could always state this in the text of their declaration. Unfortunately, the implementation error that removed the checkbox but kept the text introduced its own ambiguity, which we are now striving to resolve. Further, we want to address any potential uncertainties caused by the missing 2012-2014 checkbox data.
 
We are taking three actions to resolve these errors:

1. We are correctly implementing the 2014 decision, by removing the text from the IPR disclosure form that says "Above licensing declaration is limited solely to standards-track IETF documents." Licensing declarations apply to whatever documents the disclosing party cites in their form, whether they are published or intended to be published as standards-track documents or non-standards-track documents.

2. We are sending emails to each of the 54 parties that filed an IPR disclosure form between 21-DEC-2014 and now that explicitly references a document that was, or became, a non-standards-track RFC, bringing their attention to this announcement and stating our understanding that any express commitment they made to license implementations of a non-standards-track IETF document control over the erroneous statement in the form. We believe this is the only reasonable interpretation of the ambiguity introduced by the erroneous text, but if a party that previously made a licensing commitment disagrees they might choose to update their disclosure to clarify their position. They can find their disclosure at  https://datatracker.ietf.org/ipr/about/.
 
3. We are sending emails to each of the 50 parties that filed an IPR disclosure form between 25-FEB-2012 and 21-DEC-2014 that explicitly references a document that was, or became, a non-standards-track RFC, bringing their attention to this announcement and stating that our understanding is that parties that made an explicit license commitment in connection with a non-standards-track document intended to be bound by that commitment, and that we will assume that disclosing parties did not check the box that would have appeared to undermine their explicit commitment. Parties will be free to update their disclosure if they wish to communicate anything different. They can find their disclosure at  https://datatracker.ietf.org/ipr/about/.
 
Please let me know if you have any questions about this matter.
 
Lars Eggert
IETF Chair