Subject: Drafting Notes

From: Jorge Contreras <[email-masked]>
Date: Sat, 19 Jan 2013 07:57:58 -0600

All -- Scott and I thought it might be helpful to post the drafting notes
that were sent to the IESG last Fall when we originally prepared the BCP79
update I-D (sorry but they are in MW Word format).  These notes explain
some of the proposed changes to BCP79.  Keep in mind, however, that some
changes were suggested along the way, including after we wrote this
document, so not everything is covered here.

We look forward to any questions you have!

Jorge

---

From: tglassey <[email-masked]>
Date: Sat, 19 Jan 2013 07:37:55 -0800

On 1/19/2013 5:57 AM, Jorge Contreras wrote:
> All -- Scott and I thought it might be helpful to post the drafting 
> notes that were sent to the IESG last Fall when we originally prepared 
> the BCP79 update I-D (sorry but they are in MW Word format).  These 
> notes explain some of the proposed changes to BCP79.  Keep in mind, 
> however, that some changes were suggested along the way, including 
> after we wrote this document, so not everything is covered here.
>

Jorge ...
-------------

I think the IETF has violated US Law in the form of Copyright. The 
question now is what to do about that.

The two issues are (1) section 107 and the violations of it by the very 
design of the IETF publication system and (2) the mandate for USG 
Employee's that US Government practices and processes included here must 
be noticed in all NOTEWELL, I-D, and RFC submissions by US Law - see 
section 403 of the Copyright Act for more information.

As such we have two issues to deal with...

in re ss403
---------------
Ss403 is a serious problem because of any and all US Government 
sponsored participants actions (like any of the USG members within the 
IETF for instance) everything they submit must have Section 403 
compliance added to it and this is not something that the IPR-WG can set 
aside.

Its the law... How this plays out is that "Any and all communications 
covered under Note-Well or any other IP conveyance rules in the IETF *** 
MUST MEET SECTION 403 of the Copyright Code *** meaning that any US 
Government Employee saying anything on any list or otherwise is tied to 
this".  That means that "No official US Government review,contribution 
in any form, note-well utterance or ANYTHING out of the mouth or mind of 
a US Government Employee  of anything in this forum may be published 
without this control" it seems.

Also it means that the IETF may not change or restrict that US 
Government Copyright Control either... it is transcendental in that it 
rolls down hill like these rules the IPR-WG put in place to cover this 
alleged process issue IMHO.

In re ss107
---------------
I think the IETF may have possibly committed a massive IP and Copyright 
Fraud against the US and all of the Treaty Members because it used the 
107 Research Exemption to cover a process where no research was actually 
being done, rather that it was using the 107 exemption to cover "the 
same commercial standards process every other standards org uses" and 
"the same Engineering Process organizations use to come to 
interoperability standards for production systems they commercially 
sell" so in fact this is more than a (C) Fraud if that is true...

Whoa - its an online conspiracy - Booya!.

The legal logic is simple,  the IETF is an Engineering Team which 
created interoperability practices for Network Protocols for Telco and 
other Data Networking Applications. These are done as commercial and 
public process interfaces at the protocol and process level. As such 
this is a commercial or end-user product (The IETF Standard) for its 
application and is no different under Tax Law and Copyright Law as any 
joint-effort for engineering something.

AS SUCH THERE IS NO RESEARCH GOING ON INSIDE THE IETF BY THE VERY 
DEFINITION. IT DOES ENGINEERING... and nothing else.

The problem then is simple
--------------------------------------
It's simple Section 107 of the US Copyright Act is specifically to build 
exemptions for Research. Unfortunately Research is something by its very 
charter that DOESNT HAPPEN IN THE IETF, rather that happens only in the 
IRTF, so its ONLY the IRTF who enjoys this protection it seems.

Hmm.

That seems to mean that anyone publishing an I-D mirror or Archive from 
the IETF is also on the hook here. But they also immediately have their 
own claims against the members of the IPR-WG too...
And in closing its worth saying that aside from fun stuff like Whistle 
Blower actions too the real fun is the Tax Bounty on those parties as well.

Todd

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

-- 
Regards TSG
"Ex-Cruce-Leo"

//Confidential Mailing - Please destroy this if you are not the intended recipient.

---

From: Jorge Contreras <[email-masked]>
Date: Sat, 19 Jan 2013 09:51:16 -0600

We do not believe that the IETF IPR policies violate the US Copyright Act
in any manner.  And since BCP79 relates to patents, and not copyrights,
that discussion isn't really relevant to the BCP79 review/update.

On Sat, Jan 19, 2013 at 9:37 AM, tglassey <[email-masked]> wrote:

> Employee's that US Government practices and processes included here must be
> noticed in all NOTEWELL, I-D, and RFC submissions by US Law - see section
> 403 of the Copyright Act for more information.
>
> Ss403 is a serious problem because of any and all US Government sponsored
> participants actions (like any of the USG members within the IETF for
> instance) everything they submit must have Section 403 compliance added to
> it and this is not something that the IPR-WG can set aside.
>
> this".  That means that "No official  US Government review,contribution in
> any form, note-well utterance or ANYTHING out of the mouth or mind of a US
> Government Employee  of anything in this forum may be published without
> this control" it seems.
>
> Also it means that the IETF may not change or restrict that US Government
> Copyright Control either... it is transcendental in that it rolls down hill
> like these rules the IPR-WG put in place to cover this alleged process
> issue IMHO.
>
> In re ss107
> ---------------
> Fraud against the US and all of the Treaty Members because it used the 107
> Research Exemption to cover a process where no research was actually being
> done, rather that it was using the 107 exemption to cover "the same
> commercial standards process every other standards org uses" and "the same
> Engineering Process organizations use to come to interoperability standards
> for production systems they commercially sell" so in fact this is more than
> a (C) Fraud if that is true...
>
> The legal logic is simple,  the IETF is an Engineering Team which created
> interoperability practices for Network Protocols for Telco and other Data
> Networking Applications. These are done as commercial and public process
> interfaces at the protocol and process level. As such this is a commercial
> or end-user product (The IETF Standard) for its application and is no
> different under Tax Law and Copyright Law as any joint-effort for
> engineering something.
>
> the IETF is also on the hook here. But they also immediately have their own
> claims against the members of the IPR-WG too...
> Ipr-wg mailing [email-masked]://www.ietf.org/mailman/listinfo/ipr-wg
>
>
>
> --
> Regards TSG
> "Ex-Cruce-Leo"
>

---

From: tglassey <[email-masked]>
Date: Sat, 19 Jan 2013 08:56:34 -0800

On 1/19/2013 7:51 AM, Jorge Contreras wrote:
> We 

1)    Who specifically is WE???I need the names of the parties who are 
stating this as LEGAL FACT to the IETF MEMBERS... and we need to see if 
their sponsors also formally agree too.

Counsel  You used the "term of art" WE here referring to a group - 
define the membership of that specific group please.

> do not believe that the IETF IPR policies violate the US Copyright Act 
> in any manner.

2)    the issue is many others do... and the problem we face is you 
folks all say "Stop worrrying about it" but you wont formally take 
liability for being wrong here and that is the issue.

> And since BCP79 relates to patents, and not copyrights, that 
> discussion isn't really relevant to the BCP79 review/update.

3)    Since the IP you are allowing parties to republish "constrains 
patentability of IP" and since it starts time-clocks a-ticking for 
patent-timelines the commentary you have retorted with is typical legal 
obfuscation attempt.

There is NO WAY to separate Technology Publications under a Copyright 
stand from Patent issues. No matter how you spin it they cannot be 
separated since the publication of the copyrighted material triggers 
patent filing rights dates.  i.e. The publication of a Technology 
Description by anyone constitutes the core publication which would 
either constitute formal notice to the public of the IP or further 
prevent that IP from being patented in certain countries like Japan.

Copyright 403 issue
-----------------------------
Also you didnt respond to the 403 Complaint.../_*
*_/
'ave a nice day.

Todd

>
>
> On Sat, Jan 19, 2013 at 9:37 AM, tglassey <[email-masked] 
> <mailto:[email-masked]>> wrote:
>
>>     All -- Scott and I thought it might be helpful to post the
>>     drafting notes that were sent to the IESG last Fall when we
>>     originally prepared the BCP79 update I-D (sorry but they are in
>>     MW Word format).  These notes explain some of the proposed
>>     changes to BCP79.  Keep in mind, however, that some changes were
>>     suggested along the way, including after we wrote this document,
>>     so not everything is covered here.
>>
>     The two issues are (1) section 107 and the violations of it by the
>     very design of the IETF publication system and (2) the mandate for
>     USG Employee's that US Government practices and processes included
>     here must be noticed in all NOTEWELL, I-D, and RFC submissions by
>     US Law - see section 403 of the Copyright Act for more information.
>
>     sponsored participants actions (like any of the USG members within
>     the IETF for instance) everything they submit must have Section
>     403 compliance added to it and this is not something that the
>     IPR-WG can set aside.
>
>     Its the law... How this plays out is that "Any and all
>     communications covered under Note-Well or any other IP conveyance
>     rules in the IETF *** MUST MEET SECTION 403 of the Copyright Code
>     *** meaning that any US Government Employee saying anything on any
>     list or otherwise is tied to this".  That means that "No official 
>     US Government review,contribution in any form, note-well utterance
>     or ANYTHING out of the mouth or mind of a US Government Employee 
>     of anything in this forum may be published without this control"
>     it seems.
>
>     Government Copyright Control either... it is transcendental in
>     that it rolls down hill like these rules the IPR-WG put in place
>     to cover this alleged process issue IMHO.
>
>     In re ss107
>     ---------------
>     I think the IETF may have possibly committed a massive IP and
>     Copyright Fraud against the US and all of the Treaty Members
>     because it used the 107 Research Exemption to cover a process
>     where no research was actually being done, rather that it was
>     using the 107 exemption to cover "the same commercial standards
>     process every other standards org uses" and "the same Engineering
>     Process organizations use to come to interoperability standards
>     for production systems they commercially sell" so in fact this is
>     more than a (C) Fraud if that is true...
>
>     created interoperability practices for Network Protocols for Telco
>     and other Data Networking Applications. These are done as
>     commercial and public process interfaces at the protocol and
>     process level. As such this is a commercial or end-user product
>     (The IETF Standard) for its application and is no different under
>     Tax Law and Copyright Law as any joint-effort for engineering
>     something.
>
>     It's simple Section 107 of the US Copyright Act is specifically to
>     build exemptions for Research. Unfortunately Research is something
>     by its very charter that DOESNT HAPPEN IN THE IETF, rather that
>     happens only in the IRTF, so its ONLY the IRTF who enjoys this
>     protection it seems.
>
>     Hmm.
>
>     That seems to mean that anyone publishing an I-D mirror or Archive
>     from the IETF is also on the hook here. But they also immediately
>     have their own claims against the members of the IPR-WG too...
>     And in closing its worth saying that aside from fun stuff like
>     Whistle Blower actions too the real fun is the Tax Bounty on those
>     parties as well.
>
>
>     Todd
>
>>
>>     [email-masked]  <mailto:[email-masked]>
>     [email-masked] <mailto:[email-masked]>

-- 
Regards TSG
"Ex-Cruce-Leo"

---

From: "Joel M. Halpern" <[email-masked]>
Date: Sat, 19 Jan 2013 12:36:06 -0500

Thank you for posting the notes.
I understand the goal with item 10 (lurkers).
But the result is a major change of policy, and one which I think has 
many problems.

It seems to me that requiring that anyone on a WG list or in a WG 
meeting is considered a participant (i.e. is required to disclose IPR) 
will tend to drive folks away from our process.

Yours,
Joel

On 1/19/2013 8:57 AM, Jorge Contreras wrote:
> however, that some changes were suggested along the way, including after
> we wrote this document, so not everything is covered here.
>

---

From: tglassey <[email-masked]>
Date: Sat, 19 Jan 2013 09:55:05 -0800

> will tend to drive folks away from our process.

Actually ANYONE in the Forum of the WG is a participant whether they are 
in the meeting or not.

Being registered and served notice through the mailing list is all that 
is necessary. Their responding in any form is the NOTE-WELL submission 
meaning formally farting loudly in a meeting probably constitutes a IP 
contribution as well...  In fact the mailing list is a FORMAL SERVICE 
LIST FOR ANY AND ALL LEGAL NOTICES through the IETF process.

Remember the "we only have to email notice of change to you to tie you 
to the new rule"  constraints which the IETF has operated on for more 
than a decade?

Sorry  folks - the rules the IETF has in place are that bad IMHO

Todd

-- 
Regards TSG
"Ex-Cruce-Leo"

---

From: Jorge Contreras <[email-masked]>
Date: Sat, 19 Jan 2013 13:47:45 -0600

On Sat, Jan 19, 2013 at 11:36 AM, Joel M. Halpern <[email-masked]>wrote:

> But the result is a major change of policy, and one which I think has many
> problems.
>
> It seems to me that requiring that anyone on a WG list or in a WG meeting
> is considered a participant (i.e. is required to disclose IPR) will tend to
> drive folks away from our process.

Joel -- thanks, we wanted to get a discussion started on this topic.  There
are pros and cons to the proposal.  On the "pro" side, a lurker wouldn't be
able to listen to the discussion, file patent applications and then keep
them secret. On the con side, as you suggest, casual observers might be
kept away.  It would be good to understand how the community weighs these
two outcomes.

---

From: Christian Huitema <[email-masked]>
Date: Sun, 20 Jan 2013 02:45:35 +0000

>> It seems to me that requiring that anyone on a WG list or in a WG meeting is considered a participant
>> (i.e. is required to disclose IPR) will tend to drive folks away from our process.
>
> Joel -- thanks, we wanted to get a discussion started on this topic.  There are pros and cons to the 
> proposal.  On the "pro" side, a lurker wouldn't be able to listen to the discussion, file patent
> applications and then keep them secret. On the con side, as you suggest, casual observers might be kept
> away.  It would be good to understand how the community weighs these two outcomes.

What about the on-line archives? Today, it is possible for anyone, without subscribing explicitly to any list, to peruse the archives. Do we want to change that, and make it a requirement that anyone reading the archives be tied by IETF rules? And if we don't, what do we gain exactly by enforcing a rule for people who merely subscribe to a mailing list?

Jorge, is there a way to reformulate the requirement and somehow tie it to active participation, i.e. trying to affect the outcome of a WG?

-- Christian Huitema

---

From: Brian E Carpenter <[email-masked]>
Date: Sun, 20 Jan 2013 07:58:53 +0000

> Jorge, is there a way to reformulate the requirement and somehow tie it to active participation, i.e. trying to affect the outcome of a WG?

Let's be very clear about the proposed change. The old text
(RFC 3979 section 6.1.2) does compel participants to disclose
but does not define "participant". The new text is identical but
adds:

   For purposes of this memo, "participating in an IETF
   discussion or activity" means attending a relevant working group
   meeting, subscribing to an IETF mailing list, or otherwise observing
   the progress of IETF discussions and deliberations over a particular
   Internet-Draft, whether or not actively submitting Contributions or
   engaging in the discussion.

I am not sure that is correct in plain English. I have *never* interpreted
"participate" to mean "observe". It's an action verb; IMHO, the definition
is more like:

   For purposes of this memo, "participating in an IETF discussion or
   activity" means speaking or sending instant messages to a relevant
   working group meeting, sending messages to an IETF mailing list, or
   otherwise actively taking part in the progress of IETF discussions
   and deliberations over a particular Internet-Draft.

http://www.merriam-webster.com/dictionary/participate

I agree with Joel that this is a significant change, and one likely to
have unpredictable consequences. Do we want to see people suddenly
walking out of a WG session to avoid this obligation? Or not coming
in the first place because they have a patent application in progress?

     Brian

---

From: SM <[email-masked]>
Date: Sun, 20 Jan 2013 02:56:24 -0800

>"participate" to mean "observe". It's an action verb; IMHO, the definition

Yes.

I can attend a meeting without saying anything.  I can read a mailing 
list without posting anything to it.  In the first case I am a 
attendee.  In the second case I may not be a subscriber (see message 
from Christian Huitema).  The catch seems to be "Reasonably and 
personally known" in the context of IETF (activity).

 From draft-bradner-rfc3979bis-01:

  '"IETF": In the context of this document, the IETF includes all
   individuals who participate in meetings, working groups, mailing
   lists ...'

The terms "contribute" and "participate" are used throughout the 
draft.  The problem may be extending "participate" to include the 
person observing the discussion.  The question is whether that person 
must make a disclosure.  Section 6 of the draft mentions that:

   "Since disclosure is required for anyone making a Contribution or
    participating in IETF activities, a person who is not willing or
    able to disclose IPR for this reason, or any other reason, must not
    contribute to or participate in IETF activities with respect to
    technologies that he or she reasonably and personally knows to be
    Covered by IPR which he or she will not disclose."

Does "participate" in the above mean that the person must not attend 
the working group session or subscribe to a mailing list where the 
technology may be discussed?  If one presumes good faith, yes.  If 
one wants to be business-friendly, one can argue that it is a public 
activity and anyone can learn about what is being discussed.

Item 10 in the draft notes from Jorge Contreras mentions that:

   "Lurkers -- this is a complicated issue that runs throughout the document.
    At a high level, I have suggested that lurkers ARE required to make IPR
    disclosures, to avoid a Rambus situation.  I understand that this may be
    controversial."

The problem is that "individuals are not permitted by their employers 
or by other factors to disclose the existence or substance of patent 
applications or other IPR".  I looked at a few filings:

https://datatracker.ietf.org/ipr/1949/
https://datatracker.ietf.org/ipr/1945/
https://datatracker.ietf.org/ipr/1925/
https://datatracker.ietf.org/ipr/1893/

Two of the filings identify an IETF participant.  Most of the filings 
are done by legal people.  It's easier to have a simple posture where:

   individuals who are not permitted by their employers or by other factors
   to disclose the existence or substance of patent applications or other IPR
   should not participate in IETF activities relating to the technology.

Section 3.2 of the draft mentions that:

   "A. The Contributor represents that he or she has made or will
       promptly make all disclosures required by Section 6.1.1 of this
       document.

    B. The Contributor represents that there are no limits to the
       Contributor's ability to make the grants, acknowledgments and
       agreements herein that are reasonably and personally known to the
       Contributor."

Anything else is dancing around the problem and making life difficult 
for individuals when the decision is not within their control.

Regards,
-sm

---

From: tglassey <[email-masked]>
Date: Sun, 20 Jan 2013 05:35:43 -0800

> http://www.merriam-webster.com/dictionary/participate

The issue from a contractual standpoint is how the intent of the 
participating party is documented.

> in the first place because they have a patent application in progress?

Do you want to be accountable formally for Intellectual Property Fraud ???

Look this is simple - the IETF and its management is liable (no matter 
what any policies you dream up on paper to make you immune) for the 
damages which happen inside of its form because it is allowing you to 
intentionally create unenforceable IP Contracts which will not meet *** 
ANY *** of the participants own sponsor's legal standards for those IP 
contracts, and which they are inextricably tied to.

Todd

-- 
Regards TSG
"Ex-Cruce-Leo"

---

From: John C Klensin <[email-masked]>
Date: Sun, 20 Jan 2013 13:17:19 -0500

--On Sunday, January 20, 2013 07:58 +0000 Brian E Carpenter
<[email-masked]> wrote:

>... 
>> Jorge, is there a way to reformulate the requirement and
>> somehow tie it to active participation, i.e. trying to affect
>> the outcome of a WG?
> 
> but does not define "participant". The new text is identical
> but adds:
> 
>    discussion or activity" means attending a relevant working
> group    meeting, subscribing to an IETF mailing list, or
> otherwise observing    the progress of IETF discussions and
> deliberations over a particular    Internet-Draft, whether or
> not actively submitting Contributions or    engaging in the
> discussion.
> 
> I am not sure that is correct in plain English. I have *never*
> interpreted "participate" to mean "observe". It's an action
> verb; IMHO, the definition is more like:
> 
> discussion or    activity" means speaking or sending instant
> messages to a relevant    working group meeting, sending
> messages to an IETF mailing list, or    otherwise actively
> taking part in the progress of IETF discussions    and
> deliberations over a particular Internet-Draft.
>...
 
> I agree with Joel that this is a significant change, and one
> likely to have unpredictable consequences. Do we want to see
> people suddenly walking out of a WG session to avoid this
> obligation? Or not coming in the first place because they have
> a patent application in progress?

To be clear, the difference between your language and Jorge's
seems to me to be precisely tied to the loophole that Jorge and
Scott are trying to close.  "observing the progress [...]
whether or not actively submitting [...] engaging [...]" would
require disclosure even from someone who merely looks at a
mailing list archive (precisely the case that Christian
identifies) or even downloads an I-D (since reading the I-D,
especially in more than one version or one that contains a
change history would constitute "observing the progress...").  

What that would accomplish (if it were successful) would be to
make it difficult or impossible for someone to quietly obtain
and read an I-D written by unaffiliated parties and then file
patents on the ideas/inventions in that I-D at least without
disclosing.  Failure to disclose would presumably put the
enforceability of any resulting patent at risk.

I'm skeptical about the effectiveness and desirability of this
for two reasons.  The first is the chilling effect on
participation that others are concerned about.  I don't know
what to do about that.  But actually proving that someone looked
at a particular mailing list archive or downloaded an I-D and
hence was required to disclose would be devilishly difficult to
prove, at least unless we not only required a login to access
such things (per Christian's note) but also kept logs of who
accessed what materials and when.   Even then, it is easy for
someone with evil intentions to circumvent such measures unless
they are made really intrusive (and maybe even then).  For this
case, the presence of evil intentions is not in question --
finding a draft somewhere (even if printed out by an unrelated
third party, thereby escaping the proposed phrasing of the
disclosure rules), reading it, and then filing a patent on the
information it contains puts someone so far down on an ethics
scale that merely faking an identity to avoid being recorded as
the person who accessed such material wouldn't even be
significant.  Note that most countries' patent applications
require that the applicant swear to be the inventor or
equivalent, so someone playing that game has already committed
to major dishonesty.

Jorge and Scott, for the practical reasons above, I don't think
we need to spend time wondering whether this would bring enough
benefits to justify driving people away (and how many).   I
think we probably need to stick to "active participation" and
the kinds of active participation that leave track in the normal
course of events.  Some language encouraging (even more
strongly) disclosure from anyone who becomes aware of the work
would be, at least IMO, fine.  But trying to make it into a
requirement isn't.  It would cause problems for some of those
participating in good faith and absolutely none for someone who
was not.

best,
    john

   john

---

From: Jorge Contreras <[email-masked]>
Date: Sun, 20 Jan 2013 12:35:41 -0600

> participating in good faith and absolutely none for someone who

I'm convinced by these arguments that we should not try to impose a
disclosure obligation on lurkers.  But I do think we need to be more
precise about when the obligation does arise.  What should the "active"
participation threshold be?  I think we can all probably agree that
subscribing to a mailing list would not be active.  But how about flying to
Seoul to attend a WG meeting, but not saying anything?  Does it require
making a Contribution, or commenting on someone else's, or posting at least
one comment on a mailing list?  People ask me these questions, so I do
think we need some more precision in the policy.

---

From: Christian Huitema <[email-masked]>
Date: Sun, 20 Jan 2013 19:16:31 +0000

> I'm convinced by these arguments that we should not try to impose a disclosure obligation on lurkers. 

Great.

> But I do think we need to be more precise about when the obligation does arise.  What should the "active" 
> participation threshold be?  I think we can all probably agree that subscribing to a mailing list would not be active.
> But how about flying to Seoul to attend a WG meeting, but not saying anything?  Does it require making a 
> Contribution, or commenting on someone else's, or posting at least one comment on a mailing list?  People
> ask me these questions, so I do think we need some more precision in the policy.

Brian's text seems fine. Active participation occurs when someone  actually sends a message to a mailing list, publishes a draft, or attends a working group meeting.

On a broader note, the real protection is our shared culture, not a set of rules. Our culture is strong, working for the betterment of the Internet. Too many rules weaken that culture by pushing people away. There are limits to what any rules can achieve. The evil patent trolls that we fear are known to work around rules. We saw examples of that in IEEE 802, where companies were hiding behind "independent consultants." The shared culture makes those behavior unacceptable, and is probably the only efficient solution.

-- Christian Huitema

---

From: John C Klensin <[email-masked]>
Date: Sun, 20 Jan 2013 15:32:12 -0500

--On Sunday, January 20, 2013 19:16 +0000 Christian Huitema
<[email-masked]> wrote:

>...
> Brian's text seems fine. Active participation occurs when
> someone  actually sends a message to a mailing list, publishes
> a draft, or attends a working group meeting.

FWIW, that seems about right to me, too.  I is also consistent
with advice that people have been given informally in the past.
For example, if one wants to avoid the disclosure requirements,
one doesn't set foot in the room during a WG meeting, whether
getting their required a long trip or not.  On the other hand,
attending an one or more days of IETF meeting does not trigger a
disclosure requirement for every WG that meets during the
meeting.

I would really, really, like to see a broader and tougher
requirement.  I just don't think it is practical or, as
Christian points out, consistent with the culture (even though
we recognize that the cultural constraints will have no effect
on someone who is determined to steal ideas and apply for
patents on them).

   john

---

From: "Bradner, Scott" <[email-masked]>
Date: Sun, 20 Jan 2013 22:18:22 +0000

as has already been pointed out - the current language is, at best, foggy - having a discussion on what
the IETF thinks is the right thing is good - 

I will note that the current discussion is, like most IETF discussions about
IPR rules, being undertaken by a very small percentage of the overall IETF  - not sure 
what to do about that

> Brian's text seems fine. Active participation occurs when someone  actually sends a message to a mailing list, publishes a draft, or attends a working group meeting.

"attends" but does not say anything? - seems like a kind of lurker, what if someone goes to a meeting but
does not sign in, or listens in re al time to the audio stream (or, in the future, joins the remote participation system) 
what is the threshold?

saying that an overt action (posting to a list, posting a ID or speaking at the mike) is the threshold would be cleaner

> On a broader note, the real protection is our shared culture, not a set of rules. Our culture is strong, working for the betterment of the Internet. Too many rules weaken that culture by pushing pe…

may all be true but the clarity that comes from more precise rules can be of great help in a courtroom

Scott

---

From: Brian E Carpenter <[email-masked]>
Date: Mon, 21 Jan 2013 07:58:32 +0000

> IPR rules, being undertaken by a very small percentage of the overall IETF  - not sure 

I don't think there's much to be done. Even if you raise this very specific
question on [email-masked], most likely only the same people will respond.

BTW my definition of "participate" did not include flying to Seoul and setting
foot in a meeting room. It required actual speech or jabber. Also, nobody has
yet raised the eternal question of enforcing signature of the roster. Unless
we do that, setting foot in the meeting room is a meaningless criterion.

   Brian

---

From: Stephan Wenger <[email-masked]>
Date: Mon, 21 Jan 2013 08:52:17 +0000

Hi all,
Comments inline, from very specific to very broad.
Stephan

>we do that, setting foot in the meeting room is a meaningless criterion.

Not sure about that last statement.  If the IETF were to clearly define
"participation" to include "setting a foot in the meeting room", then
people will find a way to prove such participation if they see need for
it, signature or no signature.  Witnesses and whatnot.  Worst case: large
corporations ask their employees to run around with cameras to collect
evidence for participation.  :-)

More generally, I see the danger of speculative filing for patent, not
disclosing those, and then successfully asserting them, as rather low.
The BC/QC San Diego case, that is occasionally mentioned in this context,
does IMO NOT qualify for such a scenario as the patents in questions were
filed long before the meetings in question.

Even broader, on the general subject of definition of "participation", I'm
also against defining "participation" as broadly as the draft does.
"Influencing the decision making process towards any IETF published
document" would be my definition.  That would include writing emails and
drafts, saying something at the mike, and also humming or showing a hand
when there is a show of hands.  Obviously, the participation in the form
of a humm is harder to prove than writing a draft, but that would be the
litigator's problem and not ours.  Flying to Seoul and going to a WG
session should not be a criteria, for many reasons including that I may
fly to Seoul for the purpose of pushing my own work in one WG and
occasionally sit in on other WGs to read email, enjoy the company of other
IETFers, and so on, without having any intention of influencing the
decision making progress in that other WG.

Finally, if we define the term Participation (even if we just codify
current practice rather than inventing something new), we should do so in
a prominent place in BCP 79, rather than in the arguably obscure location
where it is in the current draft.

Stephan

>>>>disclosure obligation on lurkers.
>>> Great.
>>>
>>>>subscribing to a mailing list would not be active.
>>> Brian's text seems fine. Active participation occurs when someone
>>>actually sends a message to a mailing list, publishes a draft, or
>>>attends a working group meeting.
>> 
>> does not sign in, or listens in re al time to the audio stream (or, in
>>the future, joins the remote participation system)
>> what is the threshold?
>> 
>> saying that an overt action (posting to a list, posting a ID or
>>speaking at the mike) is the threshold would be cleaner
>> 
>>> On a broader note, the real protection is our shared culture, not a
>>>set of rules. Our culture is strong, working for the betterment of the
>>>Internet. Too many rules weaken that culture by pushing people away.
>>>There are limits to what any rules can achieve. The evil patent trolls
>>>that we fear are known to work around rules. We saw examples of that in
>>>IEEE 802, where companies were hiding behind "independent consultants."
>>>The shared culture makes those behavior unacceptable, and is probably
>>>the only efficient solution.
>>

---

From: John C Klensin <[email-masked]>
Date: Mon, 21 Jan 2013 08:50:34 -0500

--On Monday, January 21, 2013 07:58 +0000 Brian E Carpenter
<[email-masked]> wrote:

> BTW my definition of "participate" did not include flying to
> Seoul and setting foot in a meeting room. It required actual
> speech or jabber. Also, nobody has yet raised the eternal
> question of enforcing signature of the roster. Unless we do
> that, setting foot in the meeting room is a meaningless
> criterion.

Brian,

I disagree, but the reasons get us into the territory where we
need to warp the way we do things to support a strong IPR policy
rather than having the things we need to do shape that policy.

Our minutes, jabber logs, and the ability of people to come to
the microphone and speak without clearly stating their names for
the audio record add up to a sufficiently sloppy situation that
someone who was determined to evade the policy could come to a
meeting and speak or otherwise influence WG reasoning almost as
easily as they could avoid signing a blue sheet with an accurate
name and whatever other information we are "requiring" that
month.   

On the other hand, taking the blue sheets as an example, if
someone were sitting in the room, did not sign the blue sheet
and claimed to not be there but others were to testify in a
patent case that the person actually was there, the likelihood
of some judge deciding that failure to sign the blue sheet
reinforced the view that the attempt to evade the IPR policy.
It doesn't take extensive legal training to understand the
likelihood of that irritating the judge and generally being a
bad idea.

Now contemplate another scenario.  Someone is in the room or on
audio and following the jabber log.  She stands up (virtually if
necessary) and says "can't understand a word you are saying --
more closer to the microphone and slow down".  What if the event
that prompts a comment is "there is a fire in the back of the
room"?  Is either "participation" when merely lurking and
following the discussion is not?  I don't think any answer but
"no" is possible from a common-sense perspective but, if your
criterion is "required actual speech or jabber", then we have
the opportunity to split those hairs into e.g., "actual speech
or jabber that substantively addresses the WG's work".

Yet another example might arise when a WG has two very distinct
topics to address, with someone having an IPR interest in one of
them but not the other.   I don't want even the possibility of
someone saying "well, I said nothing about that topic and
therefore didn't participate, so I'm not obligated to disclose
despite the IESG's arbitrary and discriminatory decision to
incorporate both topics in the same WG".

So I'd suggest that we look at where we think the boundaries
should be if our intent was to offer the maximum guidance and
clearest lines to someone who basically intended to play fair.
If we move further than that, we only make ourselves crazy with
fine distinctions that we can't enforce anyway.

>From that point of view, one question we should ask is what
benefit accrues to the IETF if someone comes into a WG session
with his hands taped to his legs and a hood over his head (to
avoid even the possibility of speaking or influencing the WG by
mad gestures and waving of the arms).  The answer, I'm
convinced, is "none".  Whatever benefits the lurker might gain
from that activity, there is no benefit to the IETF from such
lurking and it increases the odds that someone who is determined
to commit patent misbehavior will easily gain the information
needed to do so.  We can't keep such a person (or company) from
reading I-Ds or mail archives, or even listening anonymously or
pseudonomymously to audio, but we don't have to go out of our
way to make it easy unless there is benefit to the IETF of doing
so.  So, for me, "if you don't want to be covered by disclosure
requirements in spite of being materially concerned about the
outcome, stay out of the room" is a reasonable rule just because
it is very simple and very clear, without hairsplitting about
"how much participation is needed to count".

best,
   john

---

From: SM <[email-masked]>
Date: Mon, 21 Jan 2013 06:13:41 -0800

Hi Jorge,
At 10:35 20-01-2013, Jorge Contreras wrote:
>on lurkers.  But I do think we need to be more precise about when 
>the obligation does arise.  What should the "active" participation 
>threshold be?  I think we can all probably agree that subscribing to 
>a mailing list would not be active.  But how about flying to Seoul 
>to attend a WG meeting, but not saying anything?  Does it require 
>making a Contribution, or commenting on someone else's, or posting 
>at least one comment on a mailing list?  People ask me these 
>questions, so I do think we need some more precision in the policy.

See http://www.ietf.org/mail-archive/web/ietf-announce/current/msg10401.html

Regards,
-sm

---

From: Brian E Carpenter <[email-masked]>
Date: Mon, 21 Jan 2013 14:19:22 +0000

On 21/01/2013 14:13, SM wrote:
>> on lurkers.  But I do think we need to be more precise about when the
>> obligation does arise.  What should the "active" participation
>> threshold be?  I think we can all probably agree that subscribing to a
>> mailing list would not be active.  But how about flying to Seoul to
>> attend a WG meeting, but not saying anything?  Does it require making
>> a Contribution, or commenting on someone else's, or posting at least
> See
> http://www.ietf.org/mail-archive/web/ietf-announce/current/msg10401.html

The Note Well reflects the content of BCP 9. If we make a substantive change
to BCP 9, obviously the Note Well needs updating.

  Brian

---

From: Brian E Carpenter <[email-masked]>
Date: Mon, 21 Jan 2013 14:24:45 +0000

Stephan,

(Also after reading John's last message.)

> evidence for participation.  :-)

Yes, and not necessarily a smiley.

> litigator's problem and not ours.  

Exactly, and that's why I suspect that (re)defining the word "participate"
in the BCP might prove to be a mistake - not so much for the IETF, but for
the righteous party in a patent suit.

   Brian

> Flying to Seoul and going to a WG

---

From: John C Klensin <[email-masked]>
Date: Mon, 21 Jan 2013 09:34:24 -0500

--On Monday, January 21, 2013 14:24 +0000 Brian E Carpenter
<[email-masked]> wrote:

>...
>> "Influencing the decision making process towards any IETF
>> published document" would be my definition.  That would
>> include writing emails and drafts, saying something at the
>> mike, and also humming or showing a hand when there is a show
>> of hands.  Obviously, the participation in the form of a humm
>> is harder to prove than writing a draft, but that would be the
> Exactly, and that's why I suspect that (re)defining the word
> "participate" in the BCP might prove to be a mistake - not so
> much for the IETF, but for the righteous party in a patent
> suit.

Yea.  And, in the light of that, I'd like to modify my position
slightly.

The first question I think we should ask is whether we are
actually better off trying to precisely define "participation"
or whether we (the IETF) might be better off leaving that to
judges and juries to sort out.  A precise definition would
certainly make things easier for patent litigants (on either
side), but it isn't clear that we are obligated to make their
lives easier.

Jorge, is there any significant case law that would, e.g., show
that arguments that someone had violated an SDO's IPR policy
were discarded because something like "participation" wasn't
defined precisely enough?  Or are we worrying about something
that might happen but hasn't?

If we do need a definition, I still believe it should be as
simple and obvious as possible, even if it results in people
standing outside rooms straining to hear the conversations
through the door (or listening on audio when they could
otherwise just walk in).

    john

---

From: SM <[email-masked]>
Date: Mon, 21 Jan 2013 07:03:26 -0800

Hi Brian,
>to BCP 9, obviously the Note Well needs updating.

It was more about the content of the message instead of BCP 9.  I'd 
put it this way:

   If you write, say, or discuss anything in the IETF that you know
   is covered by IPR or an IPR application which you or your employer
   own, it's up to one of you to disclose that.

Regards,
-sm

---

From: Stephan Wenger <[email-masked]>
Date: Mon, 21 Jan 2013 16:54:04 +0000

Hi John,

I'm not Jorge, but there is of course the rather famous RAMBUS case back
in 2003.  

To summarize perhaps overly briefly, initially RAMBUS was found in
District Court of fraud, because they participated in a JEDEC committee,
left that committee because they didn't like the RAND requirement of
JEDEC's policy, filed patent applications over technology allegedly
developed (or at least anticipated) in that committee, and sued the rest
of the semiconductor industry over those patents (once issued) requesting
what have to be viewed as non-RAND terms.  On appeal, the CAFC cleared
them, in part because of the unclear language of JEDEC's patent policy.
>From that ruling:

"In this case there is a staggering lack of defining details in the
EIA/JEDEC patent policy. A policy that does not define clearly what, when,
how and to whom the members must disclose does not provide a firm basis
for the disclosure duty necessary for a fraud verdict . . . JEDEC could
have drafted a patent policy with a broader disclosure duty. It could have
drafted a policy broad enough to capture a member's failed attempts to
mine a disclosed specification for broader undisclosed claims. It could
have. It simply did not."

The JEDEC policy was not as bad a piece of work as the language above
suggests.  In fact, arguably, it was clearer (even then) than BCP 79 is
today.

This is why I'm also in favor of defining "Participant" clearly, though I
do not agree with the proposal currently in the draft for the reasons
already mentioned.

Stephan

---

From: Jorge Contreras <[email-masked]>
Date: Mon, 21 Jan 2013 11:20:53 -0600

> defined precisely enough?
>

Well, the issue did come up in a recent case (one of the BCvQC cases).
 There were allegations that one of the parties did not produce documents
that were required to be produced.  Quite a few of these were emails that
were not sent by a particular engineer, but were received by that engineer.
 That person's employer, if I recall correctly, was sanctioned by the court
for failing to comply with the document production requirement, and fairly
serious penalties were imposed on the counsel involved.  I'm not taking
sides in that case (my law firm was involved, but I was not), but one could
certainly argue that a party might *not* have considered simply receiving
email from a list to constitute involvement in the SDO warranting
production of the documents.  However, the court seems to have felt
otherwise.  Clarity in that situation would have been a good thing...

---

From: tglassey <[email-masked]>
Date: Mon, 21 Jan 2013 10:06:45 -0800

On 1/21/2013 8:54 AM, Stephan Wenger wrote:

This is a very very important ruling.

1)    It says YOU MUST HAVE A PATENT POLICY. In the IETF its publication 
process impacts patentability of technology and so there must be some 
process to link the whole knowledge-representation and use models to 
that IETF Standards Work does not impact third-party rights...

2)    The sheer number of people trying to prevent processes which 
provide transparency is much more egregious here in an open standards 
GSO like the IETF and so the question as to residual or what I call 
transcendental liability comes into play here.

The answers are simple. Everyone discloses and registers. The IETF 
itself may still not want to claim itself a member based organization 
but any group of people coming together to develop a technical standard 
as an intellectual property certainly form an effort which has a direct 
and participator membership, so WG's are member based orgs whether the 
IETF is or not.

That said - does the fact that the IETF/IESG created the model for the 
operation of the group mean it also cannot wash its hands? I say yes to 
this and suggest that the simple way to deal with this is to merge 78 
and 79 into the same larger IP Processes Document as Sections and 
through this also bring patent and ip publication model controls into 
alignment with those used inside the Sponsors here.

Todd

-- 
Regards TSG
"Ex-Cruce-Leo"

---

From: tglassey <[email-masked]>
Date: Mon, 21 Jan 2013 10:20:17 -0800

> On 21/01/2013 08:52, Stephan Wenger wrote:

--_SNIP ---
> Yes, and not necessarily a smiley.

So perhaps an answer would be to define different types of participation.

1)    being a commentator to a WG does not make you a "Creator of 
Genesis" under Patent Law from US 9th Circuit Rulings. There are several 
specific legal precedent as to what constitutes an individual who is a 
bona-fide inventor and a party who is not.

The IETF should embrace this because it means while many party's may 
contribute to the engineering and fine-tuning of a process not all of 
them are core or party to the genesis of that effort.

So cool - Problem Solved...

Parties NOT PARTICIPATING IN GENESIS OR NOT DISCLOSING KEY DESIGN 
INFORMATION ARE NOT TIED TO THE IP TRANSFER OF NOTEWELL... further from 
a scientific standpoint it could be argued that there is no formal 
disclosure here either.

2)    A new WG Rule is put in place and it makes the Lurker Problem 
vaporize as well. That rule is everyone on PROJECT MAILING LISTS must 
register. How this would affect each WG is that they would have a 
general WG news letter which the Chairs could publish every 3 months as 
part of their IETF Process Management Duties.

And then whamo... each project mailing list requires formal 
registration. No such thing as a lurker on a list anymore. The modified 
registration process is NOT EMAIL type but a web form to take care of 
the boiler plate to protect the ISOC
>> disclosing those, and then successfully asserting them, as rather low.
Hmmm... I have approximately 16 new and 9 recovery filings planned for 
2013 alone... so I actually think you are wrong here.

Todd

-- 
Regards TSG
"Ex-Cruce-Leo"

---

From: tglassey <[email-masked]>
Date: Mon, 21 Jan 2013 10:22:06 -0800

On 1/21/2013 10:06 AM, tglassey wrote:
> 1)    It says YOU MUST HAVE A PATENT POLICY. In the IETF its 
> publication process impacts patentability of technology and so there 
> must be some process to link the whole knowledge-representation and 
> use models to that IETF Standards Work does not impact third-party 
> rights...
>
> provide transparency is much more egregious here,
oops, should have said "So"
> in an open standards GSO like the IETF 
is
> the question as to residual or what I call transcendental liability 
> comes into play here.
>
> but any group of people coming together to develop a technical 
> standard as an intellectual property certainly form an effort which 
> has a direct and participator membership, so WG's are member based 
> orgs whether the IETF is or not.
>
> operation of the group mean it also cannot wash its hands? I say yes 
> to this and suggest that the simple way to deal with this is to merge 
> 78 and 79 into the same larger IP Processes Document as Sections and 

-- 
Regards TSG
"Ex-Cruce-Leo"