Subject: RE: Can there be an early decision on the SenderID license?

From: "Hallam-Baker, Phillip" <[email-masked]>
Date: Wed, 25 Aug 2004 20:56:17 -0700

> Right now, we are supposed to be reviewing all of the documents.
> However, as demonstrated in the "DEPLOY/IPR: Fundamental
> Disagreements, or Get On With It" thread, there doesn't seem to be a
> rough consensus that the SenderID license is acceptable.  (Actually,
> there appears to be a rough consensus that it isn't acceptable.)

I have yet to see a statement that makes a valid legal argument 
that the license terms prohibit open source distribution.

The license terms are at least as open as the terms which the
IETF has accepted in the past.

This is a quasi-judicial proceeding, we have to proceed on the
basis of established facts. About the only fact I see a consensus
on is that none of us are lawyers.

Larry Lessig is a lawyer, lets give him a call and hit his folk
up for some pro bono.

First I would suggest that those wanting to make the argument that
the license terms are not acceptable put them in a form that is
more coherent than that advanced so far. In particular paying close
attention to the fact that what is wanted is a license to redistribute
software without let or hinderance.

---

From: George Mitchell <[email-masked]>
Date: Wed, 25 Aug 2004 21:47:44 -0700 (PDT)

> on is that none of us are lawyers.

I believe this is an erroneous restatement of the problems we are
currently facing:

1. Exactly what is covered by this license?  I assumed that, on
August 23, we would know the answer to this question.  Sure, we
got a look at the license, but it raised more questions than it
answered.

2. Assume for the moment that the license does not prohibit open
source distribution -- at least, not in so many words.  Does it
still encumber open source distribution to such an extent as to
make it infeasible?

3. Although the license claims to be royalty-free, what is the
licensee giving up which has value other than monetary?

Is this really a quasi-judicial proceeding?  I think it's a bunch
of people trying to solve a technical problem without getting
stymied by intractable non-technical considerations.  Quite a few
people have raised their hands in objection to this license so
far.  At least some of them believe the current problem, forgery
of sender domain names, can be abated without recourse to whatever
technology it is that is being licensed.  Might this position
in fact be the current rough consensus of the group?
-- George Mitchell

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From: Stephane Bortzmeyer <[email-masked]>
Date: Thu, 26 Aug 2004 11:09:49 +0200

On Wed, Aug 25, 2004 at 08:56:17PM -0700,
 Hallam-Baker, Phillip <[email-masked]> wrote 
 a message of 27 lines which said:

> I have yet to see a statement that makes a valid legal argument that
> the license terms prohibit open source distribution.

Strictly speaking, the Microsoft licence does not *prohibit* free
software distribution. But it *seriously limits* its usefulness
because people who want to exercice their rights by modifying the
source code and redistributing it will need a licence.

> The license terms are at least as open as the terms which the IETF
> has accepted in the past.

Then the IETF was wrong. Period.

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From: Mark <[email-masked]>
Date: Thu, 26 Aug 2004 09:33:27 GMT

> that the license terms prohibit open source distribution.

My worry (and, as seen through my non-legalese eyes, apparently shared by
many), is not that the Sender-ID license is open, but that it is *too* open.
:) Too open-ended, that is; leaving all sorts of vague, open-ended clauses
in which Microsoft reserves the right to tighten the noose in the future.

There is also a legitimate concern that Microsoft will usurp the use of SPF.
Yes, I know, nowhere in the license does it explicitly say that they will;
but there is no specific exclusion either, is there? No line that says, "The
use of SPF is expressly not covered by this license." They sort of keep it
in the middle. And since Sender-ID plans to use SPF checks too, there is no
exact telling whether, at a later date, Microsoft will not suddenly decide
that SPF is theirs too, as part of Sender-ID.

> basis of established facts.

And we have to proceed on the basis of examining what facts the licence
allows Microsoft to establish in the future.

- Mark

        System Administrator Asarian-host.org

---
"If you were supposed to understand it,
we wouldn't call it code." - FedEx

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From: wayne <[email-masked]>
Date: Thu, 26 Aug 2004 07:54:56 -0500

First off, I raised the subject of having an early decision on the
SenderID license in order to make more effective use of this working
group's time.  If the SenderID license is decided to be acceptable,
then we can cut off the debate/discussion of it and save a lot of
mailing list bandwidth.  If the SenderID license is decided to not be
acceptable, then we can stop evaluating the marid-core, marid-pra and
marid-submitter I-Ds.

Instead of addressing this issue, PHB has tried to reframe the
discussion. 

> that the license terms prohibit open source distribution.

That is completely irrelevant.  As Eric Allman pointed out, many of
the aspects of the SenderID create friction, and that is all that is
enough to question whether the SenderID license is worth it.

> IETF has accepted in the past.

The IETF has accepted RFCs in the past that have been horribly
designed and written.  The fact that the IETF has made mistakes in the
past is hardly a good reason to ignore the current situation.

> Larry Lessig is a lawyer, lets give him a call and hit his folk

Please feel free to contact Larry.  On Monday, I started making
contact with Eben Moglen (the FSF lawyer) for his input on whether the
SenderID license is compatible with the GPL.  I chose Eben for a
couple of reasons.  First off, he was involved with earlier
discussions with MS over this issue and therefore should be up to
speed on the subject.  Secondly, Eric Allman has used quotes form Eben
in order to claim that the current SenderID license is acceptable.

> software without let or hinderance.

No, this is backwards.  The IETF requires rough consensus in order to
advance things.  People who think that the SenderID license is
acceptable need to show that there is a rough consensus that it is
OK.

This working group does not need to accept the SenderID license
because is no worse than the worst license that the IETF has accepted
in the past.  Rather, we need to look at what RFC3668 says:

  | 8.  Evaluating alternative technologies in IETF working groups
  | 
  |    In general, IETF working groups prefer technologies with no known IPR
  |    claims or, for technologies with claims against them, an offer of
  |    royalty-free licensing.  But IETF working groups have the discretion
  |    to adopt technology with a commitment of fair and non-discriminatory
  |    terms, or even with no licensing commitment, if they feel that this
  |    technology is superior enough to alternatives with fewer IPR claims
  |    or free licensing to outweigh the potential cost of the licenses.

People who are trying to reach a rough consensus that the SenderID
license is acceptable need to show that the burden placed on software
(both MTAs and things like spam filters) that are already widely
deployed is justified.  That the PRA "is superior enough to
alternatives with fewer IPR claims or free licensing to outweigh the
potential cost of the licenses."

So far, no one has come close to showing that the PRA is superior
enough to outweigh the costs.

-wayne

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From: Yakov Shafranovich <[email-masked]>
Date: Thu, 26 Aug 2004 09:54:28 -0400

> in order to claim that the current SenderID license is acceptable.

I had conversations with Larry Rosen of OSI and someone from the FSF in 
the past few days. In their opinion this license is not compatible with 
the GPL and most other open source licenses. And yes - they are lawyers.

Yakov

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From: Andrew Newton <[email-masked]>
Date: Thu, 26 Aug 2004 11:13:46 -0400

> Instead of addressing this issue, PHB has tried to reframe the

If you are admonishing Phil, your energy is misplaced.  It is not your 
place to decide the schedules of this working group nor how consensus 
is arrived at in this working group.

-andy

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From: Yakov Shafranovich <[email-masked]>
Date: Thu, 26 Aug 2004 09:54:28 -0400

Yakov

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From: Ryan Ordway <[email-masked]>
Date: Thu, 26 Aug 2004 10:33:19 -0700

> that the license terms prohibit open source distribution.

	It will not take a valid legal argument to derail
the widespread deployment of any standard that comes from
this working group. All that is needed is the, perhaps
unfounded, fear that implementing SenderID or any other
standard with nebulous IPR issues is going to bite the user
in a tender area. 

	FUD can be a quite powerful deterrent. Why spend
so much time working on a standard that is so engulfed in
it?

	Ryan

-- 
HELO, my name is root... you have SIGKILLed my father... prepare to vi!