Subject: RE: DNSEXT Minutes @ IETF-63 [Software Patent issues denieddiscussion]

From: "Hallam-Baker, Phillip" <[email-masked]>
Date: Thu, 8 Sep 2005 20:08:58 -0700

> I didn't see the original note -- if it was from whom I think it was, 
> my killfile took care of that -- but for a more authoritative 
> description of the situation, see the first two paragraphs of 
> Section 2 of RFC 3669.

Without wanting to engage the dispute ove minutes I think that it would
be useful if the IETF had a definition of an 'open patent license' even
if WGs were not required to insist on it.

My concern here is that in the MARID group it was clear that the
negotiating situation was not conducive to obtaining the desired result,
a different negotiating situation might have achieved that result.

The problem is that at present each WG negotiates independently.
Although a concession made by an IPR holder does not set a precedent in
theory the practice is quite the opposite. If GloboCorp aggrees to terms
X in WG A then that is going to be the starting point for negotiations
in WG B. GloboCorp can never hope to receive terms that are any more
favorable.

The problem here is that GloboCorp cannot expect other IPR holders to be
held to the same conditions. Any concession made by GloboCorp will be a
precedent that GloboCorp can be held to in any future negotiation but
GloboCorp cannot require the precedent to be enforced against any other
party.

This negotiation mechanism essentially requires unilateral, binding
concessions on the part of IPR holders without the hope of future
reciprocity. That is not the best way for an organization to negotiate
the most favorable terms from the IPR holders.

Negotiating a standard set of 'open terms' at the organization level has
the advantage that the lawyers for GloboCorp have a direct stake in the
negotiation and they must consider both sides of the equation. Rather
than being asked to unilaterally surrender a particular set of IPR
claims the lawyers are looking at an exchange, they are much more likely
to negotiate favorable terms if they are hoping to benefit from them in
turn.

Finaly there is a complex issue of copyright law which was largely
dismissed in the MARID case but is actually a concern for other major
IPR holders. The theory of reciprocal sublicensing has not been tested
in court except in the SCO case and there close to $100 million has been
spent on legal fees without any real clarification of the question of
whether a reciprocal sublicense in the GNU style is actually binding. 

The core issue here for the IPR holders is reciprocity. If they give
away IPR claims can the rely on a reciprocal rights clause? The IPR
holders are not convinced this is the case and they are the people who
are being asked to rely on it. The FOSS community has nothing at stake
here, if the theory does not hold up in court they have lost nothing.
The IPR holders might find themselves in a situation where they are
being sued by a rights holder but have lost the ability to enforce
reciprocal rights.

There are three possible solutions to this problem. The first is to do
nothing and hope the problem goes away. 

The second approach is to attempt to insist on an open sublicense
clause. This is likely to mean that specifications with significant IPR
claims will be directed to other venues such as OASIS and W3C where the
definition of open license is favorable. The problem here is that the
people promoting the

The third approach would be to look for some other form of legal
arrangement such as a rulebook structure that is tried and tested and
does not represent an unquantifiable legal risk.

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