Subject: Re: #1511: Proposed resolution of Incoming 5.10: Back-license to document authors in resulting RFCs

From: John C Klensin <[email-masked]>
Date: Sat, 10 Nov 2007 08:00:59 -0500

Sorry... hit "send" too soon...  The following should have been
at the end...

The point here isn't whether one ends up with a clean
back-license versus a mess of cross-licenses, as has been
suggested in other postings.  I have every confidence that our
very smart lawyers can make the language work correctly in
either form.  The RFC Editor already holds all listed authors
collectively responsible for the document and we have always
assumed that, even for posting an I-D, multiple authors have the
rights needed to prepare and develop a single collaborative
work.  It would only be a small step from that to language that
would make the contributions joint in a way that would make the
author's rights flow to all the authors, without requiring
subsequent cross-licensing.  

The issue is only whether the rights of the authors to use the
RFC text as your/Brian's language suggests derive from a
discretionary license from the IETF Trust or whether those
rights are intrinsic in the publication model such that they do
not require subsequent permissions.

    john

--On Friday, 09 November, 2007 09:57 +0100 Harald Alvestrand
<[email-masked]> wrote:

> After looking over the discussion, I propose that section 5.10
> be replaced with an abbreviated version of Brian's proposal:
> 
>> 
>> 5.10. Contributors retention of rights
>> 
>> Although contributors provide specific rights to the IETF, it
>> is not intended that this should deprive them of any rights
>> in their contributions. To underwrite this principle, the
>> IETF Trust is requested to issue a form of license to
>> contributors which ensures that they may each make use of
>> their contributed material as published in an RFC in any way
>> they wish, subject only to the restriction that no
>> contributor has the right to represent any document as an
>> RFC, or equivalent to an RFC, if it is not a full and
>> complete copy or translation of the published RFC.
> 
> Scott, can you prepare a version -03 of
> draft-ietf-ipr-3978-incoming with this language in it, and
> publish it?
>...
 
Harald,

While I can probably live with this, I note that it is still a
significant change from the situation the authors were presumed
to be in prior to recent tampering.  In the original model, the
authors had those rights intrinsically because:

	(i) The RFC Editor was acting as an agent/collaborator
	of the author(s), so that the authors had rights to the
	final edited version of the contribution (this part is
	covered adequately by your version of Brian's text as
	above).
	
	(ii) Since the author gave the RFC Editor and IETF only
	those rights needed to permit reproduction, use in the
	standards process, and use in implementing the
	standards, the rights covered above were intrinsic: no
	license back from the IETF was needed because the author
	never gave those rights to the IETF.

The difference between that situation and the proposed text is
that the proposed text involves a _request_ for a license back
from the IETF Trust to the author. In principle, the IETF Trust
can ignore or reject that request, or they or the IETF can
change their minds later.  Debates about how unlikely that is
are not relevant, only the fact that the structuring of the
arrangement makes that possible.

To preserve the status quo ante, the authors would need to
reserve those rights as a condition of letting the IETF post,
and the RFC Editor to edit and publish, the document and the
IETF [Trust] would need to accept the document with that
reservation.   As far as I can tell, that is the only
arrangement that doesn't leave this particular bit of author
rights subject, in principle, to the whim of future Trustees
and/or WGs.

As I said, I can live with this way of doing it, but the WG and
community should understand the nature of the change and its
implications.

        john

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

---

From: [email-masked]
Date: Sat, 10 Nov 2007 09:23:34 -0500

John,

I think you're correct for the situation in which a single
author writes a document from scratch that becomes an RFC, and
I agree with you that it's desirable to preserve the status

> 	covered adequately by your version of Brian's text as

Pointing out that the author has rights to the final version
of the final edited version of the RFC in this situation would
be a good addition to the final text.

The problems show up in joint works, and especially revisions

> 	never gave those rights to the IETF.

In other words, (ii) describes a process in which the author
reserves the rights involved.  That only works **when the
author has those rights to begin with**.  There are two
important situations in which the individual author does
not have those rights:

(A) In a joint multiple-author work, the full rights vest only
in the collection of authors. In other words if Joe and Sam
write an RFC, then "Joe and Sam" collectively have the reserved
rights, but neither individual can exercise them on his own.
If Joe does something based on these rights without Sam, Sam
is in a position to demand compensation.  I'm quite certain
of this, at least under US copyright law, having just been
through exactly this situation with my lawyers where Joe and
Sam were two companies that held joint copyright in software,
but I invite Jorge to comment.  For Joe to exercise full rights
on his own, he has to be given them explicitly - passing rights
to Sam's interest in the final RFC to Joe through the RFC Editor
is more effective (IMHO) that requiring Sam to cross-license
Joe a priori.  To make this explicit, the final language should
be changed from:

	the IETF Trust is requested to issue a form of license to
	contributors which ensures that they may each make use of
	their contributed material as published in an RFC

to:

	the IETF Trust is requested to issue a form of license to
	contributors which ensures that each author may make use
	of the final published RFC containing their contributed
	material

(B) The situation for a revision of an RFC is even worse.  In
this situation, the author of the revised RFC (let's call her
Mary) *never* had the rights described in (ii) to begin with,
because her ability to revise the RFC relied on the IETF's
copyright to the original RFC, which permits derived works
within the IETF's standards processes and unlimited distribution
of the resulting RFC .  For Mary to make the envisioned use
of her revised RFC, she needs rights to the original RFC *that
apply outside of the IETF*.  IETF may not have those rights
beyond the usual "distribution is unlimited".  The above revised
text probably makes the right request, but it may not be
possible in all cases, and adding language to point that out
might be useful.

Harald - sorry to prolong this, but John did originally raise
this issue, and we do need to get the copyright provisions
correct.

Thanks,
--David
----------------------------------------------------
David L. Black, Distinguished Engineer
EMC Corporation, 176 South St., Hopkinton, MA  01748
+1 (508) 293-7953             FAX: +1 (508) 293-7786
[email-masked]        Mobile: +1 (978) 394-7754
----------------------------------------------------

> -----Original Message-----
> From: John C Klensin [mailto:[email-masked]] 
> Sent: Saturday, November 10, 2007 8:01 AM
> To: Harald Alvestrand; Brian E Carpenter
> Cc: [email-masked]
> Subject: Re: #1511: Proposed resolution of Incoming 5.10: 
> Back-license to document authors in resulting RFCs
>

---

From: "Joel M. Halpern" <[email-masked]>
Date: Sat, 10 Nov 2007 11:20:55 -0500

I may well be being dense, but I am not sure I follow.  So let me ask a
specific question.
If the wording with regard to back-license (aka author retained rights)
was changed from
    "The IETF Trust is requested to issue"
to
    "In conjunction with accepting submissions, it is the
    IETF policy that the IETF Trust shall issue"

Would that help your concern, make it worse, or completely miss the point?

Yours,
Joel

---

From: Harald Tveit Alvestrand <[email-masked]>
Date: Sat, 10 Nov 2007 17:20:53 +0100

John,

> not require subsequent permissions.

I agree that this is the issue; I'd formulate it as "defined as a feature 
of the publication process" rather than "intrinsic in the publication 
model"; the model/process is an IETF-defined construct we're trying to 
define in a way that works for us, not something external that we are 
trying to describe.

What I have observed from this exchange of paragraphs:

- Our lawyer formulated one proposed "intrinsic" text. It was not 
consistent with what you perceive as the traditional rights of authors. 
This indicates that it's not simple to get this language "just right".

- Our inability to get things "just right" on the first try has been cited 
as a major reason for all the "leave it to the Trust to do the details" 
language in -outgoing. Brian's proposal argues that we should use this 
mechanism here too.

- A relatively small number of people have commented on this exchange. 
While there aren't that many people commenting on the IPR list anyway, I 
also suspect that a lot of authors would not change their volume or style 
of contribution to the IETF one way or another one whit, no matter what the 
outcome of this discussion is.

John, would you feel better if the document used "the IETF trust is 
directed" rather than "the IETF trust is requested"? That would make any 
refusal to follow direction a constitutional crisis, rather than "just" a 
disagreeement about what's best for the IETF.

Not that I'd be happy if either of those things really happened....

                   Harald

---

From: John C Klensin <[email-masked]>
Date: Sat, 10 Nov 2007 12:08:32 -0500

--On Saturday, 10 November, 2007 11:20 -0500 "Joel M. Halpern"
<[email-masked]> wrote:

> I may well be being dense, but I am not sure I follow.  So let
> me ask a specific question.
> If the wording with regard to back-license (aka author
> retained rights) was changed from

It would help my concern, at least as the "what I can live with"
level.

It also misses the point.  The point is that anything the IETF
Trust does can be undone by the IETF Trust.  Moreover, any
action taken by this WG can be undone by its successors, no
matter how strong the present-day consensus.   If the authors
want or need rights that are absolutely dependable, and if
authors of future documents need to be able to depend on their
rights in the final result not changing before those documents
are finished, then, AFIK, the only way to accomplish that in our
environment is for the author rights to be tied to the grant of
rights by the authors to the IETF to edit and publish, not
something that the IETF Trust does/ is asked to do/ is directed
to do after the fact.

    john

---

From: John C Klensin <[email-masked]>
Date: Sat, 10 Nov 2007 12:16:12 -0500

--On Saturday, 10 November, 2007 17:20 +0100 Harald Tveit
Alvestrand <[email-masked]> wrote:

>> rights are intrinsic in the publication model such that they
>> do not require subsequent permissions.
> 
> I agree that this is the issue; I'd formulate it as "defined
> as a feature of the publication process" rather than
> "intrinsic in the publication model"; the model/process is an
> IETF-defined construct we're trying to define in a way that
> works for us, not something external that we are trying to
> describe.
> 
> - Our lawyer formulated one proposed "intrinsic" text. It was
> not consistent with what you perceive as the traditional
> rights of authors. This indicates that it's not simple to get
> this language "just right".
> 
> - Our inability to get things "just right" on the first try
> has been cited as a major reason for all the "leave it to the
> Trust to do the details" language in -outgoing. Brian's
> proposal argues that we should use this mechanism here too.
> 
> - A relatively small number of people have commented on this
> exchange. While there aren't that many people commenting on
> the IPR list anyway, I also suspect that a lot of authors
> would not change their volume or style of contribution to the
> IETF one way or another one whit, no matter what the outcome
> of this discussion is.
> 
> John, would you feel better if the document used "the IETF
> trust is directed" rather than "the IETF trust is requested"?
> That would make any refusal to follow direction a
> constitutional crisis, rather than "just" a disagreeement
> about what's best for the IETF.

As I said, I can live with the current text, although "directed"
or words to that effect would make me much happier.  

Remember that, if the question is what is best for the IETF,
there is a strong case to be made that the IETF,
organizationally, is better off with all rights to the published
RFCs, with the authors retaining no rights not given to everyone
except to the original text of their original and separate
contributions.   In fact, unless I misunderstood him, Jorge took
precisely that position in design team discussions.

If the authors' rights are important, then it is reasonable for
them to not want to trust some later determination by the
Trustees about what they think is best for the IETF.  There is a
balance here between "IETF rights" and "author rights".  That
balance needs to be make by the IETF, clearly, and, to the
extent possible, forever, and not left to those whose
responsibilities to the IETF clearly outweigh their
responsibilities to authors.

I'm also mindful of both the "get it right" issues and the
issues that David raised.  With the usual IANAL qualification, I
believe that the former could be resolved by making it _very_
clear (which I do not believe it to be) that the RFC Editor is
acting strictly as the agent of, and in collaboration with, the
authors as far as rights and licenses are concerned.  But I
think that runs counter to Jorge's theory that we  treat the
editing process strictly as a work for hire by the trust, with
the authors turning rights to do that editing over to the Trust
and RFC Editor, as the basis for claiming IETF ownership of the
RFCs.

> Not that I'd be happy if either of those things really

Nor would anyone else.  But that isn't the point.  The
responsibility of the IPR WG and the IETF is to make sure that
the relevant rights are balanced appropriately (even though it
is not clear that the the balance that is being proposed --I
think Brian's intent and mine are the same-- dilute the IETF's
rights to do anything of which the community would approve.  I
am uncomfortable delegating the decisions about how to strike
that balance to a body that my well have a different perspective.

     john

---

From: Brian E Carpenter <[email-masked]>
Date: Sun, 11 Nov 2007 13:34:58 +1300

Given that this document is *not* the legal text, and that the
legal text will be defined by the Trust, undoubtedly under the
direction of their IPR-specialist lawyer, I think David's text
is fine. The Trust can't give rights it doesn't own, so the legal
text would presumably be written accordingly, as much for avoidance
of doubt as anything else.

    Brian