Subject: ANNOUNCEMENT: The IETF Trustees invite your comments on revised proposed legend text to work-around the Pre-5378 Problem

From: "Ed Juskevicius" <[email-masked]>
Date: Fri, 23 Jan 2009 00:29:33 -0500

This message is in follow-up to the IETF Trustees' request for community
review (announced on January 6, 2009) on some new legend text intended to
help authors work around the "pre-5378 problem".  

Please recall that some I-D authors have experienced difficulty implementing
RFC5378 since it was published on November 10, 2008.  An example of the
difficulty is summarized below:
  - an author wants to include pre-5378 content in a new submission
    or contribution to the IETF, but
  - the author is not able to assert that every author of the pre-5378
    content has agreed (or would agree) to license the earlier material
    for use outside of the IETF Standards Process

As a result of the above situation, many authors have reported they can not
submit or progress new contributions, because the legend text authorized by
the Trustees in November 2008 had no provisions for dealing with this
"pre-5378" problem. 

The Trustees met with legal counsel on January 22nd to discuss the comments
and suggestions which you have provided since January 6th.  We have received
many excellent suggestions for ways to clarify and improve the draft legend
text, and we are grateful for this.  

Based on the feedback received to date, the Trustees are now proposing a few
changes to the draft legend text. 

The 'old' legend text (as posted for community review on 2009-01-06) was:

> 6. Text To Be Included in IETF Documents
> c. Derivative Works and Publication Limitations
> iii.  If a Contribution includes Pre-5378 Material and the Contributor
> does not wish to allow modifications of such Pre-5378 Material to be
> made outside the IETF Standards Process:
>
> This document contains material from IETF Documents or IETF Contributions
> published before November 10, 2008 and, to the Contributor's knowledge,
> the person(s) controlling the copyright in such material have not granted
> the IETF Trust the right to allow modifications of such material outside
> the IETF Standards Process.  Without obtaining an adequate license from
> the person(s) controlling the copyright, this document may not be modified
> outside the IETF Standards Process, and derivative works of it may not be
> created outside the IETF Standards Process, except to format it for
> publication as an RFC and to translate it into languages other than
> English.

The updated proposed legend text based on the discussion to date is as
follows: 

This document may contain material from IETF Documents or IETF Contributions
published or made publicly available before November 10, 2008. The person(s)
controlling the copyright in some of this material may not have granted the
IETF Trust the right to allow modifications of such material outside the
IETF Standards Process. Without obtaining an adequate license from the
person(s) controlling the copyright in such materials, this document may not
be modified outside the IETF Standards Process, and derivative works of it
may not be created outside the IETF Standards Process, except to format it
for publication as an RFC and to translate it into languages other than
English.

The Trustees invite your comments on the updated proposed legend text. We
believe the updated text incorporates the feedback we have received to date,
and we hope it clarifies the proposed legend.

The Trustees will meet again in early February to decide on whether to
revise the Trust License Policy based on the ongoing community discussion.
If so decided, a revision to the Trust's "Legal Provisions Relating to IETF
Documents" policy will be published.  Please refer to the attached PDF file
for an example of how the Legal Provisions document might look if today's
update to proposed legend text is adopted. A softcopy is available on the
IETF Trust website under the heading "DRAFT Policy and Procedures Being
Developed" at:
http://trustee.ietf.org/policyandprocedures.html 

If you have any comments on the updated proposed legend text, please post
them before the end of February 7th.  The Trustees need to decide on whether
to adopt the proposed legend text, and then communicate our decision to you
on or before February 15th.

Please give this your attention.

Regards,

Ed Juskevicius, on behalf of the IETF Trustees
[email-masked]

---

From: Paul Hoffman <[email-masked]>
Date: Fri, 23 Jan 2009 09:13:18 -0800

>for publication as an RFC and to translate it into languages other than

Given the wide nature of what is a contributor, I would think that *any* cautious document editor would want this boilerplate in their document for *any* effort that has any contributions that might have been made before 2008-11-10. Is the Trust OK with this being in essentially every single IETF document for many years to come?

If so, that wording seems fine. If not, document authors will need pretty detailed guidance about when *not* to put this boilerplate in a document.

--Paul Hoffman, Director
--VPN Consortium

---

From: "Dave Nelson" <[email-masked]>
Date: Sat, 24 Jan 2009 09:01:40 -0500

Paul Hoffman writes.

> Given the wide nature of what is a contributor, I would think that
> *any* cautious document editor would want this boilerplate in their
> document for *any* effort that has any contributions that might have
> been made before 2008-11-10. Is the Trust OK with this being in 
> essentially every single IETF document for many years to come?
>
> If so, that wording seems fine. If not, document authors will need
> pretty detailed guidance about when *not* to put this boilerplate
> in a document.

Indeed, I've just been discussing this last point with my co-chair -- what
practical instruction do we give to our WG draft authors?

I thought of sending out something along ht line of the following
"procedure".  Thoughts, comments and suggestions are solicited.

(1) Does your draft contain any material quoted from any RFC published prior
to November 10, 2008?

(2) If the answer to (1) is yes, does that quoted text fit into the "fair
use" exception, that is to say is the text clearly quoted, included verbatim
without any modification addition or deletion, and is the source of the
material clearly attributed (i.e. quoted and cited)?

(3) If the answer to (1) is no or the answer to (2) is yes, you are
"good-to-go". If the answer to (2) is no, you have the "pre-5378 problem".

(4) If you have the "pre-5378" problem", i.e. you have either re-used
sizable blocks of text beyond what's traditionally considered "fair use", or
you have in some way modified the text you have re-used, you need to do one
of the following:

(a) Contact every holder of copyright in the material you have re-used.
That includes the listed Authors and Editors of the RFC, but it likely
includes anyone listed in the Contributors section as well.  In point of
fact it *could* include persons, lost in the mists of history, that made
written contributions / submissions to the drafting process, e.g. via a WG
mailing list or other means.  As I understand the criteria, it's virtually
impossible for anyone to assert that the complete list of everyone that
might have copyright in any passage of an RFC is know, unless you wrote the
RFC yourself, taking input from no one.  Once you have created the list of
all copyright holders, you need to contact all of them and ask if they
assent to the terms of RFC 5378.  I recommend you get that answer in
writing.

(b) Failing the arduous task listed in (a) you need to include some
boilerplate text in the draft that indicates the draft is subject to the
"pre-5378 problem".  This boilerplate text is being debated now.  Your task
for now is to determine whether or not you have the problem.

---

From: Marshall Eubanks <[email-masked]>
Date: Sat, 24 Jan 2009 09:13:28 -0500

> assent to the terms of RFC 5378.  I recommend you get that answer in

I like this text, and would suggest that after people have spoken up  
here, you run it by Jorge Contreras and the Trust.

However, you left out a part : Individuals themselves may not be able  
to grant this, so you need
to ask the writers of the older work in addition :

- Was their material prepared as works for hire or under other  
contractual licenses which grant
license rights to their employer at the time ?

      If this is true, then  "you" (the new author) need to determine :

           - are they still working for the same company
                - if so, has that company agreed to 5378 for older  
material ?

                - if not, what company (or companies) was that and  
then "you" (the new author) will need to ask those companies
                  if they have agreed to 5378 for older materials

I am not a lawyer and this may not be sufficient, but it is necessary.  
Many employment contract give intellectual property rights
to written material prepared on the job to the employer.

Regards
Marshall

---

From: "Dave Nelson" <[email-masked]>
Date: Sat, 24 Jan 2009 09:17:16 -0500

Paul Hoffman writes...

> Is the Trust OK with this being in essentially every single IETF 
> document for many years to come?

Unfortunately, it seems to me that's exactly the corner into which we are
painting yourselves, for any document that involves significant re-use of
material, i.e. beyond the "fair use" exception.

---

From: "Dave Nelson" <[email-masked]>
Date: Sat, 24 Jan 2009 10:07:23 -0500

John C. Klensin writes ...

> And, while IANAL, my understanding from what we've been told
> repeatedly is that "fair use exemption" is a US concept, so your
> sentence should stop after "significant re-use of material"

So authors of scholarly papers in other countries can't lawfully quote and
cite other such works?  I am continually surprised by new knowledge -- that
makes life interesting -- but I find this bit particularly surprising, not
to say incredible.

If "fair use" does not apply, then does "significant" need to be come "any"?
One of the elements of fair use is the volume of quoted material -- so what
now defines "significant"?

---

From: Alan DeKok <[email-masked]>
Date: Sat, 24 Jan 2009 16:12:00 +0100

> makes life interesting -- but I find this bit particularly surprising, not

  Countries based on English common law have a concept called "Fair
Dealing", which is similar enough for practical purposes.

http://en.wikipedia.org/wiki/Fair_dealing

  Alan DeKok.

---

From: "Dave Nelson" <[email-masked]>
Date: Sat, 24 Jan 2009 10:56:48 -0500

John C, Klensin writes...

> The point is that different countries have different rules,
> different names for the rules, and different criteria.

Right.  I should have said "fair use" or whatever the corresponding legal
doctrine is called in your jurisdiction.  Is there a generic,
jurisdiction-independent term for this doctrine?

> * The current and former policies focus on getting people to
> give the IETF (and IETF Trust) whatever rights they need, not on
> making would-be users of text spend energy trying to figure out
> what they can and cannot appropriate without those rights.

Sure.

> * This debate, and the workaround, are really about what rights
> I have to claim that I have, or have obtained, to give to the
> IETF.

I'm trying to figure out what specific guidance, in the form of a
step-by-step procedure, I can give to my WG so that draft authors can
identify whether or not they need to include the workaround boilerplate.  I
don't want each of them to have to understand all the nuances of this
debate, nor contact personal / corporate counsel in the process.

---

From: "Dave Nelson" <[email-masked]>
Date: Sat, 24 Jan 2009 11:13:32 -0500

Marshall Eubanks writes...

>> (2) If the answer to (1) is yes, does that quoted text fit into
>> the "fair use" exception...

I've been reminded that the term "fair use" is words-of-art in the US and
that other legal jurisdictions have similar but different rules with
different names.  Perhaps this could be addressed by tagging on "or whatever
the corresponding legal doctrine is called in your jurisdiction."

> However, you left out a part: Individuals themselves may not be
> able to grant this, so you need to ask the writers of the older work
> in addition :
>
> contractual licenses which grant license rights to their employer at
> the time ?

Yes, I think you are correct.

> Many employment contracts give intellectual property rights to 
> written material prepared on the job to the employer.

Yes, that's true.  In my own employment agreement I am delegated the
authority to cede such rights to SDOs, on behalf of my employer, as part of
my participation in standards activities.  That is custom language, however,
added at my request.

---

From: Sean Turner <[email-masked]>
Date: Mon, 26 Jan 2009 19:03:59 -0500

Marshall Eubanks wrote:
> However, you left out a part : Individuals themselves may not be able to 
> grant this, so you need
>                - if not, what company (or companies) was that and then 
> "you" (the new author) will need to ask those companies

Well as an author, I know I'm going to opt for using the new 
get-out-of-jail boiler plate especiallyy on the SMIME Message 
Specification and Certificate Handling updates, which were to change 
just the algorithms and the key sizes.  If you trace back to the 
beginning, then the relevant RFCs are RFC 2311, 2312, 2632, 2633, 3850, 
and 3851.  There are 7 authors/8 companies and that doesn't include the 
10+ contributors (whose companies aren't listed btw) ...

spt

---

From: Dean Willis <[email-masked]>
Date: Thu, 29 Jan 2009 00:53:20 -0600

> essentially every single IETF document for many years to come?

That's exactly the point I was trying to make in the post that Bob  
responded to; every document that was in-process prior to 5378 is  
going to have to carry this "We don't know" boilerplate.

I'm OK with that, and think that the revised working looks to be  
acceptable, although John's argument about the strength of assertion  
seems reasonable ( "We can't say you can copy it" is more realistic  
than "You cannot copy it").

--
Dean