Subject: Re: A couple of questions about the IETF trust outbound licensing.

From: [email-masked]
Date: Tue, 15 Nov 2005 19:07:01 +0000

-------------- Original message ----------------------
From: Thierry Moreau <[email-masked]>
> To the iaoc "mailing list":
> 
> Thanks to Lynn St-Amour for the presentation at IETF-64 IPR wg
> about the IETF trust. Having read the IETF trust agreement, I
> have a couple of questions.
> 
> The licenses to be granted by the trust have a "contaminating
> property" even stronger than GPL'ed source code. This is how I
> read the clause 9.5 of the trust agreement:
> 
> 9.5 Licenses. The Trust (acting through the Trustees) shall have
> the right to grant licenses [...] the licensee agrees to grant
> and assign to the Trust all right, title, and interest it may
> have or claim in any derivative works of Licensee that are based
> on or incorporate the IPR. [...]

This implies that the Trustee's are given the right to not grant the licenses, and that from my perspective makes them and the ISOC Trust no different than a private trust that gets to choose who and what it participates in. The IETF is not supposed to be such an animal but rather "and open and fair" global standards process open to all. That means that the trust MUST allow anyone who wants to use its IP's to do so without 'pain' or there would be legal issues to deal with... 

> 
> Let's take the DNS-centric bind software, currently licensed as a
> 3-clause BSD fee software licence. Suppose a future version of
> bind requires a license from the trust. Then, a future bind
> software "proprietary fork" would need to be assigned back to the
> trust.
> 
> Am I reading this correctly?

Yes and that's why the Trust Idea itself is broken at this point IMHO. The costs of operating this will kill the IETF unless it plans to charge for these licenses and then its not what it was chartered to be anymore.

> 
> Is this the intent of the trust agreement signatories?

Who knows what their intent was...

> 
> 
> Also, this e-mail [email-masked] is said to be a mailing list, but
> there is no indication of an archive and instructions to
> subscribe/unsubscribe. (at least in
> http://koi.uoregon.edu/~iaoc/).
> 
> Regards,
> 
> -- 
> 
> - Thierry Moreau
> 
> CONNOTECH Experts-conseils inc.
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> e-mail: [email-masked]
> 
> 
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---

From: "Lucy E. Lynch" <[email-masked]>
Date: Wed, 16 Nov 2005 10:18:36 -0800 (PST)

> This implies that the Trustee's are given the right to not grant the
> licenses, and that from my perspective makes them and the ISOC Trust no
> different than a private trust that gets to choose who and what it
> participates in. The IETF is not supposed to be such an animal but
> rather "and open and fair" global standards process open to all. That
> means that the trust MUST allow anyone who wants to use its IP's to do
> so without 'pain' or there would be legal issues to deal with...

The Licensing in question here is related to contractors carring out
work on behalf of the IETF (i.e. development efforts on the id-tracker)
and as such the IETF does want to control who we can contract with.

The issue I *think* you're concerned about has to do with the content
of IDs/RFCs and as those belong to the authors and not the IETF I don't
believe your issue applies.

If you're concerned about the terms of Service Contracts and independent
contractors use of IETF IPR (like the domain names) can you offer a straw
man case wher the community would want use of the names to be open to
anyone?

> Yes and that's why the Trust Idea itself is broken at this point IMHO.
> The costs of operating this will kill the IETF unless it plans to charge
> for these licenses and then its not what it was chartered to be anymore.

Again - I think you're talking about the content of DNS related docs -
these don't belong to either the IETF nor the Settlors to the Trust.

> Who knows what their intent was...

We are working on clarifing text, but I think this addresses
your issue:

DRAFT:

"It is not the intention of the Settlor to modify the IETF
community-approved policies and procedures regarding intellectual property
rights in IETF standards documents and other contributions to the
standards process. Thus, we confirm that rights in IETF RFCs and other
standards-related documents will continue to be licensed under the terms
set forth in BCP 78 and any IETF community-approved successors or
modifications thereto, and that Section 9.5 of the IETF Trust Agreement
should not be interpreted to supersede, contradict or impose additional
restrictions on such licenses."

> IAOC mailing list
> [email-masked]
> https://www1.ietf.org/mailman/listinfo/iaoc
>

---

From: Simon Josefsson <[email-masked]>
Date: Thu, 17 Nov 2005 00:38:23 +0100

> believe your issue applies.

The IETF, and the IPR Trust, will, if I understand correctly, have the
legal capability of sub-licensing rights to the IDs/RFCs.  It is
important that the IETF is able to influence the copying conditions
used for the IDs/RFCs that will be owned by the IPR Trust.

Has the IAOC been following the outbound rights copying condition
discussion in the IPR WG?  Would there be a problem assigning third
parties rights to IDs/RFCs that will be owned by the IPR Trust?

What we have been discussing is to permit third parties to use, copy,
publish and modify IDs/RFCs, under some constraints (e.g., removing
the boilerplate).  Of course, it would only apply to RFCs which the
IPR Trust actually have a legal right to sub-license.

Thanks,
Simon

---

From: Brian E Carpenter <[email-masked]>
Date: Thu, 17 Nov 2005 14:09:19 +0100

> parties rights to IDs/RFCs that will be owned by the IPR Trust?

It's exactly because of that issue and related concerns that the draft
text in the name of the Settlors that Lucy sent was developed last
week. We intend to make sure that the Trustees can and will do what
the IETF wants in this respect.

> IPR Trust actually have a legal right to sub-license.

Exactly true.  We (the Trustees) will have to do some work to try to
obtain the missing rights for older documents.

Just to be clear once again, the sample license you saw is not in the
least intended to apply to RFCs.

     Brian

---

From: Brian E Carpenter <[email-masked]>
Date: Thu, 17 Nov 2005 17:02:33 +0100

Thierry Moreau wrote:
> Brian E Carpenter wrote:
> Can you relate that reassuring statement to the following text in the 
> trust agreement ...

We need to do a specific license to cover RFCs and we need to fully
understand what the community wants before doing that. In fact we just
discussed it in the weekly IAOC meeting (which is still going on as I
type) and we believe the best way will be to discuss the license terms
right here in the IPR WG. But that's not going to happen for a few more
weeks.

>     - definition of IPR in section 3.1
>     - schedule A, "current data", item d),
>     - section 5.1, in its entirety

That adds up to: the Trust will own the IPR in RFCs.

>     - section 7.1 (a), last sentence, item (iii)
>     - section 9.5, last sentence.

We've already covered that - we will be getting the necessary
calrifications from the Settlors such that this will not limit the
way we can license RFCs.

    Brian

---

From: Thierry Moreau <[email-masked]>
Date: Thu, 17 Nov 2005 09:53:59 -0500

I'm just puzzled.

Regards

-- 

- Thierry Moreau

Tel.: (514)385-5691
Fax:  (514)385-5900

---

From: Simon Josefsson <[email-masked]>
Date: Thu, 17 Nov 2005 19:55:03 +0100

> the IETF wants in this respect.

That's good to hear.

Do the CNRI or ISOC have any similar interests?  Can they legally
influence the license used in IPR Trust sub-licensing?  Do they want
to?

> obtain the missing rights for older documents.

Oh, that might take a lot of time and work.  But it is worthy mission.

> least intended to apply to RFCs.

Ok.

Thanks,
Simon

---

From: "todd glassey" <[email-masked]>
Date: Sat, 19 Nov 2005 04:41:39 -0800

Lucy, Simon, SMB, Jorge - the TRUST has a couple of major flaws in it and it
needs to be redone - sorry, I do know what that means - and the easiest way
to do it would be to amend it probably...

----- Original Message ----- 
From: "Simon Josefsson" <[email-masked]>
To: "Lucy E. Lynch" <[email-masked]>
Cc: <[email-masked]>; "Thierry Moreau" <[email-masked]>;
<[email-masked]>; <[email-masked]>
Sent: Wednesday, November 16, 2005 3:38 PM
Subject: Re: [IAOC] Re: A couple of questions about the IETF trust outbound
licensing.

> legal capability of sub-licensing rights to the IDs/RFCs.

Agreed, if the concept of  the trust is to work. But the Trust's
responsibilities to the IP Contributor's also MUST be defined better -
especially what the trust is responsible for as far as IP Protections and in
reporting licensing to those IP contributors so that on-going value can be
ascertained for tax purposes - if the IETF's Trust continues to license and
derive value from an IP, its only reasonable that the people who contributed
and paid to vet it get the tax benefits of that.

> It is

Uh NO - lets make this much stronger language - the IETF MUST control the
licensing requirements of IP it submits to the TRUST to manage for it.

> discussion in the IPR WG?

???

>Would there be a problem assigning third

No formal membership approval process:
------------------------------------------
One would think that this would be true ONLY if the party who submitted the
IP and who had the rights wanted/intended to turn over those rights. I would
also observe that making the contributing to the trust a requirement of
participating in the IETF is unfair and slighted towards those with
previously
issued IETF efforts. This is also why I feel that splitting the IP Rights
into three documents from whence it came (RFC2026) constitutes questionable
acts, in that these also complicate and dramatically changed the process and
procedures of the IETF's operations, something that wasn't approved by any
of
the WG's in any 'email straw man' or vote of any kind... making it just the
IPR WG's paper...

No votes and the Contract:
---------------------------
Personally from a stance as a participant in a contract that the IETF just
changed without consulting me on, I am concerned... If the IETF and IESG
chose to enforce these newly defined contract models on those participating
and who had efforts in place, it seems to me from a legal standpoint that
this is unenforceable. There is nothing in RFC2026 that says 'we are going
to
change the rules out from under you and you have to live with them.' as far
as I can tell or any other previous documents making the changes and the
splitting of the submission and management process rules into three pieces
equally questionable (from a contract law standpoint IMHO).

Dont get me wrong - I believe what IPR is doing is very necessary, just that
ALL currently practicing members of the IETF need to vote on it. That means
every member of every Mailing List has to at least have the opportunity of
voting on these 'new' rules, otherwise...

IPR and the Standard of Care:
-------------------------------
There is also on another IPR front, also the issue of the concept of the
"Standard of Care" which sets a threshold and level of responsiveness to
violations of its IP Rights, or those 'entrusted to it by the IP Submitters
and Owners'. Its critical that this Standard of Care is defined in BOTH the
TRUST and the IETF process and it is not in either, making both processes
flawed. What I mean is that the IETF has a responsibility to track and
manage the use of its publications, or it can be said to have abandoned all
right in them. The mere fact it has no plan in place or procedures or
methods of doing this is also a serious problem from an IP ownership
standpoint because it simply goes to 'that the IETF had no intent of
protecting those IP's when it entered into the Contract to do so' making the
Contract and its considerations, especially the IP transfer,  void for fraud
in the inducement'.

Since there is no formal Standard of Care commitment in the TRUST - you need
to go back and add that. That you folks made all that effort to come to an
agreement that doesn't work is not our problem.

IETF's Process for Standards is still vapor:
-------------------------------------------
 Additionally, as I mentioned several hundred million times there are
underlying IP issues that still need to be defined within the IETF itself,
including that the IETF still cannot define what is it's 'Vetting process'
and how it approves standards or other initiatives beyond "if the number of
implementations meets the standard, and the WG Chair and AD agree that the
proper amount of diligence and vetting is done, then they initiative is
ready for advancement consideration" which means that there are no
'standards' but rather 'advanced whims' because there is no way in process
or from an audit perspective, to tell one initiative from another or whether
fair and open rules and processes where used therein.Further, the records of
the vetting process and the standards models should be retained by the IESG
or the Trust to document the integrity of the processes it/they rely on.

The Standard of Care concept also ties to this and brings up the
responsibility of the IETF to address the IP it already has submitted, and
this also is an issue since the IETF has no money to do that with.

The solution?
-------------
No one but possibly Jorge would like this idea, but there may be an
enforceability issue with the IETF's ownership of all of the RFC's and other
documents published to date, based in about seven really powerful failings
in the contract and in the description of the roles and responsibilities in
the contract itself. - this when you leverage it against that there is no
formal IETF membership claimed by the IETF/IESG/ISOC and you're smack in the
middle of an IP quagmire.

The solution from a logistics standpoint is that any IP that is going to
continue to wear the IETF's name and TM should/must conform to the IETF's IP
policy at the time of its submission, but also to be supported in the larger
framework of what the IETF's responsibilities for managing the IP already
entrusted to it for protection and development.

Ewwww, That said, it might make sense to use the fact that the contract
between the submitters and the IETF is flawed to invalidate the IETF's
breaches of that contract, and to mandate that the IETF get a second whack
at a realizable contract. The other option is to on paper, shut this IETF
down and reincorporate it as a formal entity... and then deal with the
transfer of IP since there is no 'grant' that a document may use or wear the
IETF TM or copyright statement (both having critical value) in today's
agreements.

Just 25c on the issues we still have to deal with.
Todd

---

From: Brian E Carpenter <[email-masked]>
Date: Mon, 21 Nov 2005 11:23:12 +0100

> influence the license used in IPR Trust sub-licensing?  Do they want

IANAL. However, the only remaining influence that the Settlors have
over the Trust is that they can block changes to the Trust Agreement
for five years, which is intended as a precaution against the
Trustees going crazy.

     Brian