Subject: Additional Copyright notices in IETF documents

From: Simon Josefsson <[email-masked]>
Date: Tue, 23 May 2006 14:15:51 +0200

Hi.  The draft below argues for permitting multiple copyrights in IETF
documents.  I'd like to raise this as an issue within this WG, because
RFC 3978 section 5.4 was a major discussion item in the IESG before
approving RFC 3548bis, and one of the suggested ways to proceed was to
produce a document that alter's RFC 3978.

In particular, I'd appreciate Jorge's input on whether this approach
would be impossible to adopt for the IETF for some legal reason.
Given how often documents have multiple copyrights, I'd be surprised
if there are any legal issue that can't be resolved without altering
the intent of this document.

In general, is there interest in adopting this document in the WG?

Thanks,
Simon

> 	Title		: RFC 3978 Update Regarding Additional Copyright Notices
> 	Filename	: draft-josefsson-ipr-notices-00.txt
> 	
> RFC 3978 disallow additional copyright notices in IETF Documents, but
> the running code within the IETF appear to be to ignore that rule and
> publish documents with additional copyright notices.  There are
> arguments for permitting additional copyright notices in IETF
> documents, and some are given in this document.  This document update
> the paragraph in RFC 3978 that discusses additional copyrights, to
> relax the requirement.
>
>
> A URL for this Internet-Draft is:
> http://www.ietf.org/internet-drafts/draft-josefsson-ipr-notices-00.txt

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Ipr-wg mailing list
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---

From: Harald Alvestrand <[email-masked]>
Date: Thu, 25 May 2006 10:11:50 +0200

Simon,

I have entered the issue of multiple copyright statements into the 
tracker as issue #1282.

I recommend that people read the document and make comments using this 
number in the subject line.

Jorge identifies the issue of identifying which parts are under which 
copyright; as we have discussed before, this often becomes 
next-to-impossible when there are multiple contributors to a document.

                             Harald

---

From: "todd glassey" <[email-masked]>
Date: Thu, 25 May 2006 06:58:09 -0700

Harald - question for you, Fred, and the group - I already know you dont
want to address this issue, and that this WG isnt really concerned with the
Law or it would in my estimation be interested in making the transfer of all
IP as binding as possible... But its important that this group be formally
exposed to this commentary.

That being:

An IETF Submission in the form of an I-D or an RFC is a separate piece of
Intellectual Property from the core IP documented in that Draft or
Submission, and as such ***must*** have its own release.

The logic is that IETF's documents represent a second piece of Intellectual
Property and as proof of this I point out that it is these that are
controlled by the outgoing License/Release in the Boilerplate. It is also a
piece of Intellectual Property from which the Submitter cedes or signs over
all rights against the derivative work. Not the core IP itself, which is
still controlled by the TERMS AND CONDITIONS OF THE SUBMISSION, but a new
piece of IP which is a derivative of the original body of IP.

The point is that the IP Control against this "object" is separate from
those of the core IP itself. The Submitter retains no rights to the IETF's
portions of the submittal or the reproduction rights to the Submittal -
those are totally controlled by the grants of the IETF which are SEPARATE
actions from the submission's process and would not be covered by a
'simultaneous transfer or execution model' as its assumed they do. In fact
the Publication for General Release is the part of the IETF's Process which
is controlled by the IETF's Publications Staff and happens days later than
the submission in most all instances - eliminating any claims of
Simultaneity.

>From an Auditor's Standpoint there are any number of reasons for this claim
and most of them are pertinent to the IETF's submission and release models,
which require the Secretariat to are review and approve each filing or edit
it for changes. The Editing of the Document ***also*** produces a third IP
Instance, which by the way as a derivative under the Research Exemption in
US Copyright Law, is totally the property of the IETF and needs no release
and is also not the document submitted so technically in instances where the
Secretariat's Publication's Staff edits a document,  those would be totally
controlled by the IETF's release boilerplate and not really tied to the
original IP submission except that the ultimate use license would be
controlled by that.

IN ALL INSTANCES the OUTGOING RIGHTS must either equal or be a subset of the
INCOMING RIGHTS... It doesn't work any other way that I know of - Jorge?

Todd

---

From: Simon Josefsson <[email-masked]>
Date: Thu, 25 May 2006 16:18:00 +0200

> I have entered the issue of multiple copyright statements into the

Thanks!

> next-to-impossible when there are multiple contributors to a document.

I disagree.  For the case that prompted this draft, there are two
copyrights.  And, yes, the draft has many contributors; they either
assigned the copyright to the FSF or the contribution was not legally
significant.  One is for the code included in the document.  It is
easy to identify where the code ends and where it starts.  The other
is for specific text sections that I wrote, and the copying condition
is explicit about which sections are covered by that copyright.

So I don't think it is next-to-impossible to do this.  In some
situations (one author, one copyright holder), it is trivial to do.

Note that I don't challenge that there may be conceivable scenarios
where it is next-to-impossible to implement this, but I don't see that
as conflicting with the goal of my draft, and thus not relevant.  In
those cases, you simply will have to avoid adding extra copyrights.  I
expect that approach to continue to be the norm for some time.  Few
current IETF authors appear to want the additional protection that
goes with an explicit copyright notice.

Regards,
Simon

---

From: Simon Josefsson <[email-masked]>
Date: Thu, 25 May 2006 16:18:00 +0200

Thanks!

Regards,
Simon

---

From: Harald Alvestrand <[email-masked]>
Date: Thu, 25 May 2006 16:54:38 +0200

Simon Josefsson wrote:

>significant. 
aside: what metric do you use to determine "not legally significant"?

> One is for the code included in the document.  It is
On the other hand, consider RFC 4450.
I wrote the first version of that. And commented extensively on later 
versions.
But I have absolutely no way, this late, to figure out which parts could 
be considered "mine" and which could be considered Elliot's.

Or the case of draft-ietf-usefor-usefor-08 - a number of editors, even 
more contributors, and lots of "suggested text" being incorporated 
verbatim - some of it mine.

In *many* cases, it is next-to-impossible. And that was *my* entire point.

---

From: "David B Harrington" <[email-masked]>
Date: Thu, 25 May 2006 14:10:56 -0400

Hi,

Should we develop a copyright transfer boilerplate that says "The
authors transfer all copyrights in this document to the IETF for
whatever purpose the IETF deems fit."?

Maybe I'm naïve, but to my knowledge most WG editors who are "authors"
working on a WG document do not really think much about holding the
copyright on the document. If WG documents included a release of the
copyrights to the IETF, then if another SDO, for example, wants to be
able to copy a document and make modifications, the other SDO can
simply ask the IETF for the rights, without having to track down the
authors.

dbh

> -----Original Message-----
> From: Simon Josefsson [mailto:[email-masked]] 
> Sent: Thursday, May 25, 2006 10:18 AM
> To: Harald Alvestrand
> Cc: [email-masked]
> Subject: Re: #1282 Re: Additional Copyright notices in IETF
documents

---

From: "Lawrence Rosen" <[email-masked]>
Date: Thu, 25 May 2006 11:35:00 -0700

I'm surprised that this has become an issue.

Copyright law allows the author of a collective or derivative work to place
only one copyright notice--in our case IETF's own copyright notice--on the
work, which neither mentions nor overrides the copyrights on the individual
contributions to the work.

Separate from this legal copyright notice issue, however, is the good
practice of acknowledging the contributors to an IETF specification. You can
do that either by copying those contributors' copyright notices, or merely
by saying "thanks to the following people/companies" somewhere in the
document.

/Larry

Lawrence Rosen
Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)
Stanford University, Lecturer in Law
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242  *  fax: 707-485-1243
Author of "Open Source Licensing: Software Freedom and 
                Intellectual Property Law" (Prentice Hall 2004)

> Sent: Thursday, May 25, 2006 7:18 AM
> To: Harald Alvestrand
> Cc: [email-masked]
> Subject: Re: #1282 Re: Additional Copyright notices in IETF documents
>

---

From: Ted Hardie <[email-masked]>
Date: Thu, 25 May 2006 13:51:55 -0700

At 4:54 PM +0200 5/25/06, Harald Alvestrand wrote:
>I wrote the first version of that. And commented extensively on later versions.
>But I have absolutely no way, this late, to figure out which parts could be considered "mine" and which could be considered Elliot's.
>
>Or the case of draft-ietf-usefor-usefor-08 - a number of editors, even more contributors, and lots of "suggested text" being incorporated verbatim - some of it mine.
>

I think something got dropped here in the motivation.  In Simon's case,
the extra copyright statements were attached in order to identify who
had the ability to grant additional permissions on how the work could be used. 
A statement granting those permissions is also included.

The copyright statements don't create any additional rights for Simon;
they simply identify the salient bits of the document so the permissions can
be granted.   (This goes to the same point Jorge made) In the cases where there is
no need to identify parts of the  document for that purpose, I don't think
additional copyright statements are  needed or should be encouraged.  I think
most of our "multiple author" documents either fall into the category "no
additional rights are being granted" or "the authors would quickly agree on
additional rights", so I suspect this is less of a nightmare than others appear to
believe.  In the draft-ietf-usefor-usefor-08 case, for example, if the authors
and contributors have not indicated that they wish to grant additional rights,
there is no need to identify any subparts for those grants.  All of the authors
*must have* agreed to the basic license to the IETF, but that's as far as I believe
we have to go in tracking authors' individual rights for works for which
additional permissions are not being granted.

I also note that, assuming you agree Simon has retained the rights to his text
beyond his license to the IETF, he could make a grant of additional permission
by putting up a web page that said so.  Given that, including the text of the
permission (and his assertion of the right to make) is just a convenience for
the reader.  Permitting or denying it in the RFC relates only to that convenience,
not to the rights of the author to do it.

Not speaking for anyone but my not-a-lawyer-self,

					Ted

---

From: "todd glassey" <[email-masked]>
Date: Thu, 25 May 2006 17:07:59 -0700

Great idea Ted - the License Portal should be done. All IETF Documents could
have their boiler plate reduced substantially and pointed to the IETF Policy
and IPR Portal...

Likewise the submission process might be easier done if we build a web
portal to do it. The Web Portal could invoke eSign in the process and the
submittals that way would be as good as wet signed ones except for the
Identity Authentication issues...

I can see the web portal also being able to take document segments to
construct a IETF ID from. For instance what if the Portal were to "ask for
the uploading of the defined document segments, rather than the whole
document as a single file. The Submittal Portal could also deal with any
number of check boxes for selecting the specific types of IP Licensing or
Rights being conveyed into the IETF and as Larry points out, this way only
install the IETF's copyright. This would allow the listing service for the
IETF to 'look up authors and listed IP issues' - which BTW on another front
might be something that the TRUST can sell access to.

Todd
----- Original Message ----- 
From: "Ted Hardie" <[email-masked]>
To: "Harald Alvestrand" <[email-masked]>; "Simon Josefsson"
<[email-masked]>
Cc: <[email-masked]>
Sent: Thursday, May 25, 2006 1:51 PM
Subject: Re: #1282 Re: Additional Copyright notices in IETF documents

versions.

---

From: Simon Josefsson <[email-masked]>
Date: Fri, 26 May 2006 09:52:10 +0200

> contributions to the work.

I'm not sure I follow here.  Are you saying that more than one
copyright notice is not allowed by copyright law on collective works?

> by saying "thanks to the following people/companies" somewhere in the

Right, exactly, and it is including those copyright notices that I
wish the IETF would permit me to do.

The reason the copyright statement is useful is that if someone takes
stuff from the RFC (code or text) and use it against my license, the
chances of winning a case for such infringement are higher if there is
an explicit copyright notice is present.

Another reason is that it is bad style, and may even be against some
licenses, to remove third-party copyright notices from source code
that is included in an RFC.  And including source code in RFCs can in
several cases be helpful, so I think we should encourage that.

Regards,
Simon

---

From: Simon Josefsson <[email-masked]>
Date: Fri, 26 May 2006 10:08:43 +0200

> whatever purpose the IETF deems fit."?

I believe it would simplify some things a lot -- the IETF can decide
unilaterally which outgoing license to use, even retroactively -- but
it also seem counter to the tradition in the IETF.  It is unclear to
me whether a copyright transfer is required to solve our problems, and
also whether it would help reduce the problems at all.

Looking at other organizations run by volunteers give little guidance
on this:

1) Code and documentation that is developed by the volunteers on the
   GNU projects have, typically, the copyright assigned to the FSF.

   One of the problems I've seen in that approach is that some
   volunteers do not agree to signing over the copyright, for various
   reasons, and they go elsewhere.  In some cases, it has not been
   possible to negotiate the legal aspects with their employers.

2) The NetBSD/FreeBSD/OpenBSD projects are, IIUC, run by having each
   contributor retain the copyright but give everyone else a license
   to use their contribution with very few restrictions.

   One of the problems in that approach I've seen is that some feels
   that the spirit in which their contribution was given can be
   "abused" by some organization that takes the code without giving
   back to the community, and those people go elsewhere with their
   contributions.

If anything can be learned from this, is that IETF is peculiar in that
it has one license on documents for their use within the IETF, and
another license for their use by third-parties.

Regards,
Simon

---

From: "Lawrence Rosen" <[email-masked]>
Date: Fri, 26 May 2006 18:00:08 -0700

> copyright notice is not allowed by copyright law on collective works?

No, I am saying that more than one copyright notice is not *required* by
copyright law. One copyright notice (IETF's, for example) is sufficient to
claim copyright on the entire specification.

> several cases be helpful, so I think we should encourage that.

We agree completely. I merely said it is not required that we do so.

/Larry Rosen

> Sent: Friday, May 26, 2006 12:52 AM
> To: [email-masked]
> Cc: [email-masked]
> >> >>>	Title		: RFC 3978 Update Regarding Additional
Copyright
> > Notices

---

From: Simon Josefsson <[email-masked]>
Date: Sat, 27 May 2006 11:25:01 +0200

> claim copyright on the entire specification.

Ah, I see, and agree.

My point is then, and seem to agree, that additional copyright notices
are useful, especially on material that is likely to be extracted from
the document and used in other contexts.

I've seen extracted material with ISOC copyright notices, and that's
simply incorrect and misleading (as we've established consensus on
only recently).

I'd be interested to hear any arguments against permitting multiple
copyright notices in documents.  Doesn't anyone want to argue against
my document?

If the discussions settles down, perhaps we can take an informal
straw-poll on the draft?

/Simon

---

From: Simon Josefsson <[email-masked]>
Date: Sat, 27 May 2006 11:42:30 +0200

> aside: what metric do you use to determine "not legally significant"?

The recommendation within the FSF community, based on lawyer's advice,
is that code changes below 10 lines of code is in general not
sufficiently creative to require a copyright assignment on.

Because code is more verbose than text, I conservatively translate
that to roughly one (small) paragraph of text with technical content.
I don't recall any contribution to either code or my text in that
document that were not either assigned to the FSF or longer than this
limit, and I strive to be extremely careful when I incorporate
material sent from others in my products, either code or text.  The
reason I rationalize spending time on being careful here is that I've
been forced to re-write code just because the copyright was unclear,
and that took several months of work.

> But I have absolutely no way, this late, to figure out which parts
> could be considered "mine" and which could be considered Elliot's.

Right, the authors, if they wish to claim copyright, need to take
notes while they write and contribute to the document, and be careful
when incorporating text from others.

If authors don't want to go through that effort (and I expect most
IETF contributors fall into this set), simply avoiding to add their
own copyright notice is likely the proper approach, which you did.
That's fine, of course.

> In *many* cases, it is next-to-impossible. And that was *my* entire point.

Point taken.  However, I don't think it is an argument against my
draft, here's why: IF a copyright notices is present, the individual
who make it must be sure it is correct.  That places the onus to
identify the sections on the person making the claim.  So if the
author finds it too difficult to do this properly, she should simply
avoid adding an explicit copyright notice.  My draft permits this
approach.

If an author adds a copyright notice that apply to text he didn't
wrote, that would be fraud, and we have a different set of rules to
handle that behaviour (i.e., international copyright laws).

Regards,
Simon

---

From: "todd glassey" <[email-masked]>
Date: Sat, 27 May 2006 02:57:33 -0700

Simon, in response, and Larry and Jorge can perhaps answer this...

Why not modify the boilerplate CR statements to reflect that "this document
is controlled under one or more Copyrights, all rights reserved" and then
the republishing license can be bolted on to that. This announces that the
document is controlled and that there may be more than one set of rights in
play.

Then we could add to the IPR disclosure section of the Document, a
enumerated copyright holder list (OPTIONALLY  included at the Author's or
the Editor's discretion).

Todd

---

From: "todd glassey" <[email-masked]>
Date: Sat, 27 May 2006 03:05:20 -0700

Simon - FWIW - you and others talk about the FSF licensing models or the BSD
licensing models alot and there is a disconnect in comparing the IETF to
either of those entities or the IP that they produce.

The IETF is NOT the FSF. As iot happens  the FSF is a software publishing
house and the IETF  is a Global Standards Development Organization. The work
products produced by these two organizations are not on the same level in
the food chain. FSF is an end-user of Standards. The IETF is a source of
them.

The problem is that the IETF is producing Standards for EVERYONE and not
just the FSF and like it or not our commercial players have needs that the
FSF style licenses will not satisfy.

Todd Glassey

---

From: Simon Josefsson <[email-masked]>
Date: Sat, 27 May 2006 12:25:38 +0200

> the food chain. FSF is an end-user of Standards. The IETF is a source of

The organizations are similar in that they both produce text/code
intended to be used without cost by everyone.  It may not be the
organizations' explicit goals, but they do have that side-effect in
common.  The licenses adopted by similar organizations do seem like
relevant input to the discussion to me.

> FSF style licenses will not satisfy.

Right, but EVERYONE includes the FSF and the BSD projects.  So their
concerns should be a factor in the decision making of the IETF.  If
you look at what's used on the Internet, it is run by a lot of
software produced by the FSF/BSD projects, so I'd say the concerns of
these organizations are important.

As I hope you have noticed, there is NOTHING in my arguments that are
intended to harm commercial players.  On the contrary.  Most of my
arguments hold for commercial players as well.

Compare the getaddrinfo() man pages Sun copied from an RFC.  According
to the IETF license, they didn't have the right to do that, as far as
I can tell, so the commercial players should be equally interested in
getting license issues sorted out.

Commercial players are more vulnerable to lawsuits, so they should in
theory be more interested in securing their rights (although in
practice they can fend of pro-active work in this area by having a
large staff of lawyers to settle any disputes later on).

/Simon

---

From: "todd glassey" <[email-masked]>
Date: Sat, 27 May 2006 07:57:22 -0700

Simon - Hey how is the weekend going man?Good I hope -

As to the response, I strongly disagree with the precept that the FSF was
anything like the IETF.

My view is that the FSF is an open software publishing forum and one that
needs no oversight internally, oversight to prevent one WG Member from
stealing from another, or from actively trying to prevent a competitive or
separate initiative from being admitted to the standards process. The point
is that the IETF was structured to hide the sponsors and use their
representatives as their "official agents" which IMHO is a very bad idea.
The problem is that there is no oversight or accountability for the
peer-review process that the IETF is based on.

What the this IETF has become over the years is a very very competitive
place and one that has caused tons of damage to companies who it would not
allow to participate for whatever reasons. The point is that if it is open
and fair it doesn't get to say no to one initiative because the peer's
working on some other initiatives decide they dont want to vet that new or
competitive one...

FSF and the peer reviews process
-----------------------------------
As to the FSF itself, the FSF has no underlying competition to see what it
will publish internally, it has no competitive or limiting gates by saying
"We will only publish 10 things this year"... which the IETF and its WG's
effectively do by not allowing a more cafeteria style standards process that
is not PEER-REVIEW based...

What Peer-Review without oversight has demonstrated is that the Peer's
cannot be trusted to not be petty, or in their being damaging to other
initiatives, other initiatives who may threaten the status or sanctity of
those Peer's own initiatives, or that those Peers just dont like or dont
like the sponsor of... The point is that in a standards process,  unless
there is specific  accountability for their actions, or the framework of the
standards process prevents this then the IETF cannot be either fair or
open....

By comparison, the FSF has none of this internal strife, or competition, or
the liability or damage from it. What the FSF is, is a publishing house, and
as such it is non-adversarial to its participants unlike this IETF which
certainly is. And BSD is more benign than FSF from that perspective, so NONE
of the argument you retorted with makes sense Simon and I have fully
demonstrated my points I believe...

The IETF MUST be beyond reproach
---------------------------------------
The IETF MUST be beyond reproach and its business process must be fair and
open - so that anyone can participate... so they will me more like what FSF
actually is.

When this WG compares anyone of their sponsor's business processes for
acquiring or using externally supplied IP they will have a very rough time
agreeing that what is in-place now actually makes sense. its nothing like
anything that the sponsors would do themselves.

More commentary inline.

----- Original Message ----- http://tf.nist.gov/service/time-servers.html
From: "Simon Josefsson" <[email-masked]>
To: "todd glassey" <[email-masked]>
Cc: "Harald Alvestrand" <[email-masked]>; <[email-masked]>
Sent: Saturday, May 27, 2006 3:25 AM
Subject: Re: #1282 Re: Additional Copyright notices in IETF documents

> > The IETF is NOT the FSF. As it happens  the FSF is a software publishing

--- SNIP ---

> concerns should be a factor in the decision making of the IETF.

So what are their concerns? Do you or anyone on this list formally speak
from a licensing standpoint for the FSF (Larry R do you represent Lessig or
the FSF here?)... The same is true for the BSD folks... they likewise have
no formal representation her so this statement is not really true or
relevant. It is not this WG's job to represent those other parties legal
interests here...

> If

Simon I disagree here too - they are evidently not important at all and
likely care nothing about the IETF either ... you ask why? simple, because
NONE of these organizations are formally represented here and NO ONE member
of this group can speak for them.

> arguments hold for commercial players as well.

Actually no they dont. What the commercial players need is a much simpler
standards process, and one that is not susceptible to the damages that IETF
WG Managers incompetence, their petty jealousy, or out-and-out marketspace
competition does to impugning the credibility of IETF processes. The need a
licensing model that allows them to reprint the IP for useful purposes
inside the standards process and one that does not give all their rights
away in the process as the IETF's tend to IMHO.

.
> getting license issues sorted out.

This is one of the IETF's real screwups too - it did nothing... so yes I
would agree with you, but I would also state that since the IETF did nothing
about a violation, it may mean that their claims or rights to that IP has
been abandoned because even to date, with all the conversation in re this
matter, the IETF has still done nothing formally about this abuse as far as
I can tell.

The real question is what type of commercial or other liability that failure
should carry with it, since it clearly impugned the value of the IETF and
through that inaction, the submitters IP. So the question is does the IETF
have a liability based on its inaction.

>
> Commercial players are more vulnerable to lawsuits,

Which is exactly why the release and licensing process needs to be properly
codified in a document that the IETF admits and proudly states if a formal
contract.

> so they should in

---

From: "todd glassey" <[email-masked]>
Date: Sat, 27 May 2006 08:25:22 -0700

Simon - I also wanted to say that my previous commentary (My apologies
Harald) was posted as a worst-case scenario - and that all of the IETF is
not a petty cauldron of competition, but that the processes and oversight
that governs the IETF must be beyond reproach.

My feeling today is that we are still a long ways from that open and fair
IETF, and that this gap which I feel is based on the lack of oversight in
the WG and IESG processes, means that the IETF itself cannot say where it
has problems internally. Since no one is denying that those problems do
occur, there also form a management standpoint is apparently no damage
control or triage process either which is another issue.

And "yes" to Fred's B's comment to me that the IETF is people and not
companies... which means that these people occasionally do nasty things to
each other, and that its this nastiness that the IETF's accountability
framework needs to prevent. The lack of anything to prevent that means that
the IETF itself may share liability for the actions of its WG Chairs and the
IESG - but one of the attorney's on the list would have to comment on that.

Todd

----- Original Message ----- 
From: "todd glassey" <[email-masked]>
To: "Simon Josefsson" <[email-masked]>; "todd glassey"
<[email-masked]>
Cc: "Harald Alvestrand" <[email-masked]>; <[email-masked]>
Sent: Saturday, May 27, 2006 7:57 AM
Subject: Re: #1282 Re: Additional Copyright notices in IETF documents

> > > Simon - FWIW - you and others talk about the FSF licensing models or
the
> BSD
> > > house and the IETF  is a Global Standards Development Organization.
The
> work

---

From: "todd glassey" <[email-masked]>
Date: Sun, 28 May 2006 20:07:39 -0700

Harald - you told me if I could document the IETF's relationship as
contractual with the members that I could bring that up again - so here it
is... there are case citations herein -

[NOTE - these are personal opinions about the law and the IETF's existence
and relationship with its members. I am NOT a lawyer
and cannot render a legal opinion outside of telling you what I
think personally. However, based on my understanding of US, State, and
International Law I want to make the following response. ]

---
To frame this many here in the IETF have held the viewpoint that the IETF's
relationship with the people working within its standards process, as an
arms length and non-contractual one,  and I believe that in establishing the
IP Submittal as having a real-world value, we now have enough ammunition to
refute that and demonstrate that this relationship qualifies both as a
formal contract and in some instances as a quasi-contract, both of which
mandate many controls and processes which the IETF has not as of yet put in
place...

o-    from my research I have learned that Contracts are generally
constrained by an "Offer" by one party to another - in this case that is
"the offer of the IETF to allow someone to participate in its Standards
Development Process without fee for said participation(s)" and to do so by
submitting a piece of prepared work, which they (the IETF) specified the
preparations requirement for and supplied templates to use as written
examples and formal word templates.

In the IETF's submission process which is spread out across several
documents, there are a stated set of "terms and conditions" for this
participation including the definitions of the vetting and the associated WG
structure. There are also the statements requiring the packaging of the
submission into the re-publishable and separately controlled  "derivative
work" for which the IETF is made the sole beneficiary and owner, to save the
IETF's Editors the necessity to edit or reformat  a submittal. These go to
documenting the intent of the person who meets those terms and properly
submits media for publishing. And  simply - I say that this takes a contract
to be a legal transfer of ownership to the derivative (the ID or RFC filed
with the IETF for publication).

o-    Contracts are generally activated by some formal "Acceptance" of the
Offer made -  which in this case is done by the packaging of the Contract
Subjects (the Standard's Initiative IP) into the proper republishing
framework - the IETF Templates.

So spending the time and absorbing that expense also creates a demonstrable
value for the submission too, which in most all instances is well above the
minimum dollar threshold that activates the stronger control requirements in
the contracts process.

o-    and finally the Consideration - which in the IETF's standards process
is this the review and vetting, - and the inherent value therein as well.
Likewise the consideration to the IETF for allowing the participation is the
exclusive rights to the derivative work, the ID or RFC...  so yes - we have
an exchange of valued services for IP rights.

---

Now based in this collection of fact-patterns I think that the IETF's
relationship with its participants is pretty easily demonstrated as a
contractual one, and that as such I also think there are potentially some
serious flaws (legal ones) in the IETF's current process, all of course
based on my layman's viewpoint.

That is to say, I think that the contract is incomplete and may not even be
valid per the California State  based on UETA requirements, or those of
several other states as well.

The NCCUSL UETA Site - http://www.law.upenn.edu/bll/ulc/uecicta/eta1299.htm

Also since one party can seek performance damages against another for a
contract and the only way that works is someone suing the IETF for breach
under the contract,  the actions of the IETF need to be modified to assure
one contract holder that no other contract holder can effect any damage to
them or their initiative, lest the IETF be liable for those damages.

The Quality of the existing Contract
----------------------------
The IETF's current solicitation and participation-process documents are one
of the worst contracts in fact I have ever seen. They provide the process
and constraints for submission and the transfer of the IP title & nothing
else.
Making them at best one third of the contract without any of the ugly stuff.

The do define most of the agreement provisions but the dont touch any of the
following list of traditional contract components, enabling much possible
liability inside the IETF's processes:

o- relevance of performance in construing the contract
o- modification, rescission, and waiver; exclusions.
o- delegation of performance, assignment of rights, exclusions, prohibitions
o- breach, repudiation, excuse
o- remedies, standing, statute of limitations; selection of law etc.

As to the issues of completeness, they are further complicated by the
structure of the documented parts of the contract which are spread out
across multiple RFC's making it extremely easy to screw-up the contract
itself  by editing content into one document that invalidates or sets aside
controls or components of another, or to just complicate the process so that
its beyond the mere mortal's capability of understanding.

Since the IETF has  claims "it has no obligations to publish the  IP
submitted"
------------------------------------------------
Another key concept here worth factoring in is that in its boilerplate the
IETF has also stated it has no obligation to publish anything, but I assert
that in my research into contracts shows that many contracts have
unenforceable language in them, and in this instance, I find this claim in
the contract to be untrue. The IETF must publish any legitimate in-scope
submission made to it.

The reasoning in simple, the submission process is not a gift, its a
contract, and because the reciprocity for the conveyance of the value of the
IP is the publishing of it, the IETF loses its discretionary ability to
refuse to accept any legitimate submission. Further if it did refuse an
initiative it and the individual people, and their sponsors participating
inside it may be liable for that...

This is reinforced in the conceptual arena by that there is nothing in the
submission documents that talks to the submission
being a gift to the IETF and since the documents have commercial cost in
creating them they have demonstrable value; and since in most all instances
this value exceeds the $500 minimum value for contracts, this also brings a
number of issues into play since its pretty clear that if a document has a
cost associated to it then it cannot be a gift unless that is explicitly set
out in the submission.

This concept is reinforced by cases like Barry v State of Alaska where the
Supreme Court of the State of Alaska came back with:

"We answer this question in the negative because a release cannot govern the
enforceability of a promise to be performed after the release"

which is what the refusal to publish something after the submission of it
would constitute. It gets muddier with the following language that the court
upheld as well

"A release is intended to reflect the intent of the parties. The test of the
enforceability of a release is whether, at the time of signing the release,
the releasor intended to discharge the claim which was subsequently
discovered."

The point is that no one 'gives the IETF protocol IP' - there is no reason
to - so its a trade, and since its a trade there is a Buyer-Seller
relationship. The IETF is selling the use of its Vetting and Publishing
Services, for a specific set of IP Rights which have demonstrable real-world
value or replacement cost attached to them.

or has capabilities of protecting the IP
--------------------------------------
Likewise though, one of the key issues in owning IP is protecting it... and
the IETF has no money assigned by ISOC or the Secretariat to protect IP's
with, which is also an issue since without an active IP protection
capability there is no way that the licensing means squat IMHO - what I have
learned the very hard way is that if you dont stop people from violating the
 license, then the license is moot and effectively abandoned. The timeline
for this is also pretty short too.

The problem here is that the IETF has represented that it will protect IP it
is the owner of and its failing to do so, especially to the external IP
owners, this may cause serious damage.

Since there is also no oversight in the operations of the IETF, the IESG or
the IAB for that matter...
------------------------------------------------
Oversight into the Operations of the IETF is a real issue. Especially since
the IETF can arbitrarily say "no" to any standards initiative it wants to,
and without this oversight it cannot guarantee that it can protect or
separate competitive initiatives from one another. Also that it wont stop
any
process by someone hijacking the WG such that theirs and only their teams
projects are advanced. Accountability is everything  IMHO, and by design
there is very little of it in this IETF.

So for these reasons there is no reason to give the IETF any IP since there
are no guarantees accept that the IETF has no framework or capabilities for
protecting that IP.   So transferring any IP to today's  IETF is more than
self-destructive, its like giving it away permanently by making it
unprotectable, and unless that was your intention, its pretty dumb to do
anything with a bunch of techno-geeks writing standards they cannot enforce
... Especially in transfer models that say "The IETF can do anything it
wants with this IP without obligation to the submitter".

Sorry guys - there has to be some business reason other than writing your
participation off as an Employee Development Expense...

How this all fits in to IPR-WG
-------------------------------
As to this WG and its activities - again let me state that the IETF's
processes are a contract - both in the form of solicitation for vetting, and
in the offer to participate in the fair and open framework of the IETF, then
that contract is being altered or edited here in the IPR-WG.

So if we assume that the IETF's relationship with its participants is as I
have postulated here, that is to say codified in a number of contracts "for
services in trade for IP Rights", let me ask this - Since we are altering
the
e contract offered to other IETF Members, will the actions of this WG be
codified inside the IETF by some form of vote?  i.e. In regard to Contract
Law and how it constrains what the IPR-WG does,  how is the IETF going to
get approval for these changes and the past ones it just did without asking
anyone???" - since IMHO without getting sign-on by the majority of the
IETF's participants, they are likely illegal changes under the contract
terms.

The reason for bringing this up again is that ANY changes the IETF
unilaterally makes to contractual offerings per California's Statute of
Tort's Contract's model, may cause those IETF's actions to be unenforceable
and may constitute tortuous interference and breach with other's activities
within the IETF which would be a problem...

I brought this up about six months ago - and Harald told me I had to produce
legal precedent for this. So here is the Laws and the Precedent I have found
in researching this -

1)    In the US - the jurisdiction of a transaction is often specific to the
State where End-User (*the Consumer of the Transaction) was located. This is
supported in any number of rulings in US Courts too so any and all contract
or legal agreements codified online must meet those standards and probably
the standards of the UETA as well meaning that both the UETA and the State
regulations have to be taken into account.

[As a side-note, there also is probably a requirement to allow anyone to
submit media to the Editors via paper as well, based on that in some states
and countries, that contracts cannot solely use electronic means these days
in those jurisdictions.]

2)    In the State of California for instance, my research has provided that
Contract's are constrained under UCC, the Uniform Commercial Code of the
State of California, and in particular the California State Statute of
Frauds (SOF) as mitigated by California's Parole Evidence Rule (PER).

It (the SOF) sets a more complex standard than say Alaska's  but one still
that supplies the same end-result - which is arguably that "any transactions
above $500 need to be in codified in an accepted form of a document with
some form with a reliable signature attached"... So it seems to me that the
IETF ***MUST*** allow all participants anywhere to participate and must not
break the laws of those Jurisdictions, which means its rules are either
mitigated by the Jurisdiction of the Submissions to the IETF's Processes,
or
made compliant to the needs of ALL participating nations and local
Jurisdictions within them, meaning setup for worst-case scenarios.

Todd Glassey

SNIP ---

---

From: Harald Alvestrand <[email-masked]>
Date: Mon, 29 May 2006 01:52:51 -0700

>is... there are case citations herein -
I believe that I told you that if you could document competent legal 
advice showing that you had a point, you could raise some of your issues 
again.

Your own unsupported opinion does not count as competent legal advice.

---

From: "todd glassey" <[email-masked]>
Date: Mon, 29 May 2006 10:19:43 -0700

Sorry Harald - the Citations of the Law do show those - and they are
competent sources of legal information - that's how its done
Sir, with Memorandum's of Points and Authorities. So I have exactly met the
burden you set for me to...

Todd Glassey
----- Original Message ----- 
From: "Harald Alvestrand" <[email-masked]>
To: "todd glassey" <[email-masked]>
Cc: <[email-masked]>
Sent: Monday, May 29, 2006 1:52 AM
Subject: Re: Does the IETF's relationship qualify as a contract? - I think
so...