Subject: Re: ADMIN Re: CLOSED #1198 Proposed resolution - Implementationandderivativework

From: "todd glassey" <[email-masked]>
Date: Thu, 2 Mar 2006 07:03:31 -0800

Oops - sorry forgot to reply-all there.
----- Original Message ----- 
From: "todd glassey" <[email-masked]>
To: "Harald Alvestrand" <[email-masked]>
Sent: Thursday, March 02, 2006 7:02 AM
Subject: Re: ADMIN Re: CLOSED #1198 Proposed resolution -
Implementationandderivativework

> Harald - the evidence is the US Copyright.GOV's FAQ at
> http://www.copyright.gov/help/faq
>
> It substantiates that some Fair Use claims may work for the Derivative
> Rights issues in publishing but this doesnt address the implementation
> rights or what happens to that IP after the standards process.
>
> By the way - notice that assignment of any exclusive rights requires a
> written signature.
>
> Todd
> ----- Original Message ----- 
> From: "Harald Alvestrand" <[email-masked]>
> To: "Contreras, Jorge" <[email-masked]>; "todd glassey"
> <[email-masked]>
> Cc: <>
> Sent: Thursday, March 02, 2006 6:38 AM
> Subject: ADMIN Re: CLOSED #1198 Proposed resolution -
> Implementationandderivativework
>
>
> > Todd,
> >
> > speaking as chair:
> >
> > You are speaking to a closed subject. Unless you have new evidence to
> > bring to the table, you are out of order.
> >
> > New evidence would, for instance, be a statement from someone who's
> > qualified to give a legal opinion stating that the resolution is not in
> > accordance with law, and citing a legal ruling, opinion or other
> > precedent that makes this clear.
> >
> >                      Harald Alvestrand, IPR WG chair
> >
> > Contreras, Jorge wrote:
> >
> > >
> > >
> > >>There are YET another set of deriviative rights, and these are not
> > >>republishing, they are use-rights and these clearly have nothing to do
> with
> > >>IETF standards or the process of creating them except there is a rule
> that
> > >>there must be two (2) interoperable ports built - and the rights to
> build
> > >>those ports for the purpose of creating the standard have to be
> addressed
> > >>and also the rights to what happens to those rights when the standards
> > >>process is completed./
> > >>
> > >>
> > >
> > >I think that just about everyone else who has discussed this topic
> > >(including myself) disagrees that these are "derivative rights"
> > >within the context of the document copyright discussion.  Patents may
> > >be at issue, and this is a wholly different topic, and one that is,
> > >I believe, adequately covered in RFC 3979.
> > >
> > >
> > >
> >
> >
> > _______________________________________________
> > Ipr-wg mailing list
> > [email-masked]
> > https://www1.ietf.org/mailman/listinfo/ipr-wg
>

_______________________________________________
Ipr-wg mailing list
[email-masked]
https://www1.ietf.org/mailman/listinfo/ipr-wg

---

From: "Steven M. Bellovin" <[email-masked]>
Date: Thu, 02 Mar 2006 19:44:35 -0500

>Oops - sorry forgot to reply-all there.

Todd: the issue is CLOSED.  Whether you're right or wrong, you have 
failed to persuade the working group.  Harald and I will not entertain 
further discussion on this issue.  PERIOD.

		--Steven M. Bellovin, http://www.cs.columbia.edu/~smb

---

From: "todd glassey" <[email-masked]>
Date: Thu, 2 Mar 2006 19:30:22 -0800

Steve - Hostile words from someone who is supposed to be in-charge...
naughty naughty... the question is in charge of what ? Fantasy Land? - so as
long as you and your partner are taking legal responsibility for this
matter,  then fine. Close whatever matters you want and assume that
liability personally and professionally.

> failed to persuade the working group.

Right so this is an issue of what the technical members of this WG wants
rather than what is legally possible and reasonable, right? Cool - why
bother at all - why not have you and your "law partner" Harald just write
it all up.

> Harald and I will not entertain

Thanks Steve - I wanted it to be real clear for the records who made what
decisions. And why...because  ***when and if*** this gets into court - I
want it really easy to understand who made the decisions "pertinent to the
rule of law" and that you did so under advice of Counsel...

Better yet, the press also needs to understand how you and your WG Chair
partner want to disregard US and International IP law.   The real question
is WHY??? ...   ...That being why you nor anyone else in this WG has NOT
come up with anything like a reason for why people outside of the IETF need
to be able to reprint IP materials owned by someone else.

External Use
-------------
These materials, by use agreement with the Submitters to the IETF, are only
to be used by the IETF in the development of standards.   So if the IETF
doesn't publish IP for any purpose but Standards Development, then what is
it that these exclusive republishing rights are needed for?

Is it possibly to turn all IETF initiatives into OpenSource ones? The answer
is that the IETF doesn't need any reproduction rights under section 107 of
the Copyright Code, as it already has the ability to reproduce those
document' excerpts necessary for developing the standards...  Again, if the
scope of the IP's use is the IETF's standards process, then there is no
reason outside of the IETF's processes for any of this material to be
reprinted. Especially when it's being justified to allow external parties to
have input into the Standards process, when that access process
just simply doesnt exist

The big-three questions you have failed to answer or come up with retorts to:
BTW that's the same process you make arbitrary decisions in like the one you
made above. So lets look at the big three:

1)     Since the IETF has no formal process for taking external input from
people in the standards process - this claimed use-mode of IPR's  is
ludicrous since it has never happened to date.

There is no process or method in the IETF's vetting process for taking
formal notice of anything inside the IETF's process, so why anything more
than the rule 107 rights for reproducing the materials for research, is
beyond me or any of the IP lawyers I have spoken to on this.  If there are
any reproducible sections of these standards reprinted by anyone OUTSIDE of
the IETF's standards process, then those uses also fall outside of the
IETF's research proviso and need specific releases for those uses.

By the way - lets look at the copyright act language itself - 
"Copyright protection exists from the time the work is created in a fixed, tangible form of expression. U.S. copyright law grants the owner of a work the exclusive right to: (i) make copies; (ii) prepare derivative works; (iii) distribute copies of the work; (iv) publicly perform the work and/or transmit the work; and (v) display the work. As a general rule, unless a license is obtained, it is unlawful for anyone to violate any of the exclusive rights of a copyright owner. However, the law recognizes the value and need of educators to use copyrighted material in the classroom for educational purposes and, therefore, enumerates certain limited exemptions and exceptions to the exclusive rights of a copyright owner. If your use of an audiovisual work does not fall into one of the exemptions or exceptions described below, such use may infringe the copyright owner's exclusive rights and, therefore, require a license that grants permission for such use."

Section 110 of the United States Copyright Act of 1976 (17 U.S.C. §110) establishes a widely relied-upon exemption to the exclusive rights of a copyright owner for the use of copyright-protected audiovisual materials in educational settings. Section 110(1), commonly referred to as the "Classroom Exemption," pertains to traditional face-to-face classroom settings, while Section 110(2) covers distance learning situations. The educational exemptions under Section 110, as described below, only apply to audiovisual materials used to support curriculum and do not include, under any circumstances, uses for recreational, entertainment, or "rainy day" purposes. Also, only non-profit educational institutions are qualified to take advantage of the exemptions.

The CR Act's "Fair Use" Doctrine - Section 107.
While the above Educational Exemptions may permit certain limited performances of copyrighted audiovisual works in the classroom and for distance learning, the exemptions generally do not offer flexibility with respect to the copyright owner's exclusive right to make copies, create derivative works, or distribute such works. The only instance where any such uses are permissible without a license is where the use qualifies as a "fair use" under Section 107 of the Copyright Act. The fair use provisions of Section 107 allow for certain limited uses of copyrighted works that do not interfere with the copyright holder's exclusive rights. Fair use is a defense to copyright infringement and primarily intended to allow the use of copyrighted works for commentary, parody, news reporting, research and education. However, not all uses in an academic setting or for educational purposes are automatically considered fair use. Fair use is determined on a case-by-case basis, by weighing the following four factors: 

  1.. the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; 
  2.. the nature of the copyrighted work; 
  3.. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 
  4.. the effect of the use upon the potential market for or value of the copyrighted work. 

The fair use factors have been the subject of much debate in the courts and in the academic community. The factors are designed to provide flexibility, but they also offer very little certainty with respect to what is or is not a fair use. For example, even if copying or use of a video clip is done for educational purposes, if it is too long or is found to unfairly interfere with the copyright holder's ability to sell his or her product in the open market, it may be infringing. Unfortunately, there is no bright line test for determining what constitutes a fair use. Fair use determinations are generally left to the user's discretion and are subject to potential challenge by the copyright owner.

"In an attempt to bring more certainty to the application of fair use, an initiative called the Conference on Fair Use (CONFU) brought together educational organizations, copyright experts and content publishers to develop a set of informal guidelines, called the "Fair Use Guidelines for Educational Multimedia," to help educators apply the fair use factors in educational settings. Even though a final consensus could not be reached and the CONFU Guidelines do not have the effect of law and are not binding in any manner, they do offer good boundaries and guidance for which activities may qualify as fair use. A copy of the CONFU Guidelines can be found on the University of Texas System web site at http://www.utsystem.edu/ogc/intellectualproperty/ccmcguid.htm. It is important to note, however, that the fair use provisions of Section 107 and the CONFU Guidelines do not preempt or supersede licenses and contractual obligations. Any contractual obligations agreed to by users in a license take precedence over whatever rights they may have under Section 107. "

---------------------

End of Copyright Code inclusion
---------------------
SO while its arguable that section 107's definition of FAIR USE covers the reprinting of the materials for research work, that would be in research that benefited or became the property of the owner of the IP and not others. Those also would qualify as derivative publications in most all instances where they were to be used outside of purviews that would qualify under section 107 of the Copyright code. Likewise Section 110's capabilities open the doors for Acedemic Use of the IP already as well... 

2)    Since the IETF doesn't have any process for controlling the IP once
its printed, and has never issued a "hey stop that" notice to anyone for
anything regarding the reprinting of documents, and allegedly both Sun and
Caldera and many others have broken this use rule ad-infinitum by reprinting
the materials for use outside the Standards Process,  the IETF has also most
likely already abandoned its IP claims on all the existing IP before it. I
would be willing to pursue this claim in court if your interested too.

3)    Since the IETF has no process or methods of participating under the
requirements of law and has NEVER under COPYRIGHT LAW gotten a paper based
signatures or eSigned replacement for its IP submissions, its further likely
that NOT ONE OF THE SUBMISSIONS is legally binding. All you have to do is
read the US Copyright FAQ and this all becomes evident.

Oh yeah didn't you folks have me banished for reminding you of what US
Copyright Law says about Exclusive Conveyances and how they MUST be done in
paper...  Anytime you or Jorge wants to take this matter into Court, you let
me know.

Todd Glassey

----- Original Message ----- 
From: "Steven M. Bellovin" <[email-masked]>
To: "todd glassey" <[email-masked]>
Cc: "Harald Alvestrand" <[email-masked]>; <[email-masked]>
Sent: Thursday, March 02, 2006 4:44 PM
Subject: Re: ADMIN Re: CLOSED #1198 Proposed
resolution -Implementationandderivativework

---

From: Harald Alvestrand <[email-masked]>
Date: Fri, 03 Mar 2006 08:14:43 +0100

> is WHY??? ...

Todd, you heard us. You have failed to produce evidence convincing the 
WG that your position is correct.

This is your public warning. If you persist in discussing this matter, 
WITHOUT producing a supporting statement from competent legal counsel or 
other compelling evidence, your posting rights to this list will be 
suspended.

                   Harald