Subject: Re: ANNOUNCEMENT: The IETF Trustees invite your review and comments on a proposed Work-Around to the Pre-5378 Problem

From: Russ Housley <[email-masked]>
Date: Wed, 14 Jan 2009 11:00:05 -0500

WG Chairs:

Please make sure that your WG, and especially your document authors, 
are aware of this situation.  Please follow the discussion on the 
IETF Discussion list, and keep the WG informed about the way forward 
as it develops.

Thanks,
   Russ

>From: "Ed Juskevicius" <[email-masked]>
>To: "'IETF Discussion'" <[email-masked]>, <[email-masked]>,
>         <[email-masked]>, <[email-masked]>, <[email-masked]>,
>         <[email-masked]>
>Date: Thu, 8 Jan 2009 16:43:50 -0500
>Cc: 'Trustees' <[email-masked]>
>Subject: [Trustees] ANNOUNCEMENT: The IETF Trustees invite your review and
>         comments on a proposed Work-Around to the Pre-5378 Problem
>
>The purpose of this message is twofold:
>
>1) To summarize the issues that some members of our community
>    have experienced since the publication of RFC 5378 in November 2008,
>    and
>2) To invite community review and discussion on a potential work-around
>    being considered by the IETF Trustees.
>
>Some I-D authors are having difficulty implementing RFC 5378.  An
>example of the difficulty is as follows:
>
>   - an author wants to include pre-5378 content in a new submission
>     or contribution to the IETF, but
>   - s/he is not certain that all of the author(s) of the earlier
>     material have agreed to license it to the IETF Trust according
>     to RFC 5378.
>
>If an I-D author includes pre-5378 material in a new document, then s/he
>must represent or warrant that all of the authors who created the
>pre-5378 material have granted rights for that material to the IETF Trust.
>If s/he cannot make this assertion, then s/he has a problem.
>
>This situation has halted the progression of some Internet-Drafts and
>interrupted the publication of some RFCs.  The Trustees of the IETF Trust
>are investigating ways to implement a temporary work-around so that IETF
>work can continue to progress.  A permanent solution to this "pre-5378
>problem" may require an update to RFC 5378, for example new work by the
>community to create a 5378-bis document.
>
>The remainder of this message provides an outline of the temporary work-
>around being considered by the Trustees.
>
>RFC 5378 sections 1.j and 5.3.c provide the IETF Trust with the
>authority to develop legend text for authors to use in situations where
>they wish to limit the granting of rights to modify and prepare
>derivatives of the documents they submit.  The Trustees used this
>authority in 2008 to develop and adopt the current "Legal Provisions
>Relating to IETF Documents" which are posted at:
>http://trustee.ietf.org/license-info/.
>
>The Trustees are now considering the creation of optional new legend text
>which could be used by authors experiencing the "pre-5378 problem".
>
>The new legend text, if implemented, would do the following:
>
>   a. Provide Authors and Contributors with a way to identify (to the
>      IETF Trust) that their contributions contain material from pre-5378
>      documents for which RFC 5378 rights to modify the material outside
>      the IETF standards process may not have been granted, and
>
>   b. Provide the IETF Trust and the community with a clear indication
>      of every document containing pre-5378 content and having the
>      "pre-5378 problem".
>
>So, how could the creation and use of some new legend text help people
>work-around the pre-5378 problem?
>
>The proposed answer is as follows:
>
>   1. Anyone having a contribution with the "pre-5378" problem should add
>      new legend text to the contribution, to clearly flag that it includes
>      pre-5378 material for which all of the rights needed under RFC 5378
>      may not have been granted, and
>
>   2. The IETF Trust will consider authors and contributors (with the
>      pre-5378 problem) to have met their RFC 5378 obligations if the
>      new legend text appears on their documents, and
>
>   3. Authors and contributors should only resort to adding the new
>      legend text to their documents (per #1) if they cannot develop
>      certainty that all of the author(s) of pre-5378 material in
>      their documents have agreed to license the pre-5378 content to
>      the IETF Trust according to RFC 5378.
>
>The proposed wording for the new legend text is now available for your
>review and comments in section 6.c.iii of a draft revision to the
>IETF Trust's "Legal Provisions Relating to IETF Documents" located at
>http://trustee.ietf.org/policyandprocedures.html.
>
>Please note that the above document also contains new text in section 5.c
>dealing with "License Limitations".
>
>If your review and feedback on this proposed work-around is positive,
>then the new text may be adopted by the Trustees in early February 2009,
>and then be published as an official revision to the Legal Provisions
>document.  If so adopted, Internet-Drafts with pre-5378 material may
>advance within the Internet standards process and get published as RFCs
>where otherwise qualified to do so.  Unless covered by sections 6.c.i or
>6.c.ii, authors of documents in which there is no pre-5378
>material must provide a RFC 5378 license with no limitation on
>modifications outside the IETF standards process.
>
>The IETF Trust will not grant the right to modify or prepare derivative
>works of any specific RFC or other IETF Contribution outside the IETF
>standards process until RFC 5378 rights pertaining to that document have
>been obtained from all authors and after compliance by the IETF Trust
>with RFC 5377.  The Trustees will establish one or more mechanisms by
>which authors of pre-5378 documents may grant RFC 5378 rights.
>
>The Trustees hereby invite your review, comments and suggestions on this
>proposed work-around to the "pre-5378 problem".  The period for this review
>is 30 days.  Microsoft WORD and PDF versions of the proposed revisions are
>attached to this message.  Copies are also available on the IETF Trust
>website under the heading "DRAFT Policy and Procedures Being Developed" at:
>http://trustee.ietf.org/policyandprocedures.html
>
>All feedback submitted before the end of February 7th will be considered by
>the Trustees.  A decision on whether to move forward with this proposal will
>be made and communicated to you before the end of February 15th.
>
>Please give this your attention.
>
>Regards and Happy New Year !
>
>Ed Juskevicius, on behalf of the IETF Trustees
>[email-masked]

---

From: "Spencer Dawkins" <[email-masked]>
Date: Wed, 14 Jan 2009 10:27:46 -0600

Russ,

By "this situation", do you mean the requirements in 5378 (current BCP), or 
the trustee's search for a work-around?

I'm asking so that I don't send multiple messages to my working group...

Thanks,

Spencer

> WG Chairs:
>
> Please make sure that your WG, and especially your document authors, are 
> aware of this situation.  Please follow the discussion on the IETF 
> Discussion list, and keep the WG informed about the way forward as it 
> develops.
>
> Thanks,
>   Russ

---

From: "Dave Nelson" <[email-masked]>
Date: Wed, 14 Jan 2009 11:46:20 -0500

> IETF Discussion list, and keep the WG informed about the way forward

I've followed some of the discussion on the list, admittedly without much
enthusiasm for the subject matter.  :-)

If I understand the issue correctly, the "workaround" is to address rights
in material taken from "pre-5378" documents for use outside the IETF
standards process, e.g. derivative works.

"In the old days", it used to be acceptable to quote, footnote and
attribute, i.e. cite, copyrighted works of others in your own work.  I don't
know if advances IPR case law has obviated that doctrine.  Assuming that it
hasn't, then are talking about re-use of material that would exceed the
traditional allowances for quotations and citations?   For example, it's
obvious that creating a "bis" document from a "pre-5378" document would
require the workaround.

What about drafts that simply (and properly) quote and cite a paragraph or
two from a "pre-5378" document?

Regards,

Dave

---

From: Paul Hoffman <[email-masked]>
Date: Wed, 14 Jan 2009 08:48:12 -0800

At 11:00 AM -0500 1/14/09, Russ Housley wrote:
>Please make sure that your WG, and especially your document authors, are aware of this situation.  Please follow the discussion on the IETF Discussion list, and keep the WG informed about the way forward as it develops.

----------
Chair: "You should be aware that there is a problem that is being discussed on a bunch of different mailing lists that affects whether or not you can publish a draft. A temporary workaround is being considered."

WG member: "I don't understand the discussion there. What should I do with my draft?"

Chair: "Nothing because the temporary workaround is still being considered."
----------

Russ: suggested text for the WGs would *really* be appreciated.

--Paul Hoffman, Director
--VPN Consortium

---

From: Marshall Eubanks <[email-masked]>
Date: Wed, 14 Jan 2009 13:14:43 -0500

On Jan 14, 2009, at 11:46 AM, Dave Nelson wrote:

> know if advances IPR case law has obviated that doctrine.

First, the current discussion is entirely about quoting earlier  
material. I am not aware that anyone has said that
there are issues with using the concepts involved in earlier work,  
providing references, etc.

IANAL, but I think that with regards to quoting you are asking about  
"fair use," which is still there. Fair use is a defense against  
infringement, but (at least as has been explained to me in other  
contexts) unless it is a common fair use (such as book reviewers  
quoting brief segments of a book in a review), you don't really know  
if a given
quote is really fair use until you go to court. I would
worry that if we rely on fair use there would be no way to evaluate  
whether a given RFC was OK without a legal review which, to put it  
mildly, does not scale.

Engineers should not try and be lawyers, and I think that the IETF  
needs to rely on advice of counsel here. If Jorge wants to contradict  
me, I will happily stand corrected.

Regards
Marshall

> Assuming that it
> traditional allowances for quotations and citations?

>  For example, it's

---

From: "Dave Nelson" <[email-masked]>
Date: Wed, 14 Jan 2009 13:41:18 -0500

Marshall Eubanks writes...

> "fair use," which is still there.

I think that's right.  I didn't want to invoke such words-of-art without
being sure, however.

> Fair use is a defense against infringement, but (at least as has been
> explained to me in other contexts) unless it is a common fair use
> (such as book reviewers quoting brief segments of a book in a review),
> you don't really know if a given quote is really fair use until you
> go to court.

I didn't know that fair use was that ... what's the word? ... not
well-defined.  Certainly citations in scholarly and research papers have a
long-standing tradition.  Most such documents have an extensive section on
"review of the current literature".  Maybe academics are less suit-prone?
:-)

> I would worry that if we rely on fair use there would be no way
> to evaluate whether a given RFC was OK without a legal review which,
> to put it mildly, does not scale.

If your characterization is accurate -- that the limits of the fair use
doctrine are highly fact and case specific -- then I would agree.

---

From: Eric Rescorla <[email-masked]>
Date: Wed, 14 Jan 2009 11:00:00 -0800

I'm not russ but I'm planning to send something out to my wg tonight  
and I'll send a copy to this list in case it's useful to others

Ekr

On Jan 14, 2009, at 8:48 AM, Paul Hoffman <[email-masked]> wrote:

>> Please make sure that your WG, and especially your document  
>> authors, are aware of this situation.  Please follow the discussion  
>> on the IETF Discussion list, and keep the WG informed about the way  
>> forward as it develops.
>
>
> ----------
> Chair: "You should be aware that there is a problem that is being  
> discussed on a bunch of different mailing lists that affects whether  
> or not you can publish a draft. A temporary workaround is being  
> considered."
>

---

From: Russ Housley <[email-masked]>
Date: Wed, 14 Jan 2009 14:02:25 -0500

Sorry that I was unclear.  It is important that all contributors know 
the terms under which contributions are made.  So, I mean the 
requirements in RFC 5378 and the problems that some people have had with them.

If people want to engage in the discussion of the work-around, please 
direct them to the thread on the IETF Discussion mail list.  I think 
that a separate discussion in each working group would be counterproductive.

Russ

At 11:27 AM 1/14/2009, Spencer Dawkins wrote:
>Russ,
>
>By "this situation", do you mean the requirements in 5378 (current 
>BCP), or the trustee's search for a work-around?
>

---

From: Russ Housley <[email-masked]>
Date: Wed, 14 Jan 2009 14:05:58 -0500

>two from a "pre-5378" document?

I do not expect problems with properly cited quotes.  The place where 
problem has arisen is modification to earlier works, especially "bis" 
documents and updates.

Russ

---

From: Marshall Eubanks <[email-masked]>
Date: Wed, 14 Jan 2009 14:20:35 -0500

On Jan 14, 2009, at 2:00 PM, Eric Rescorla wrote:

>>> authors, are aware of this situation.  Please follow the  
>>> discussion on the IETF Discussion list, and keep the WG informed  
>>> about the way forward as it develops.
>>
>>
>> ----------
>> discussed on a bunch of different mailing lists that affects  
>> whether or not you can publish a draft. A temporary workaround is  
>> being considered."
>>

Here is the prefix test I added to Ed's Announcement for my WG. Feel  
free to use, modify or ignore as you prefer.

Marshall
------

The WG Chairs have been asked to make their WG aware of this issue.  
This is a complicated subject, but the executive summary is that if  
you have an Internet-draft that quotes substantially from one or more  
older RFCs (ones with a publication date pre-November 11, 2008), and  
you did not write this earlier work yourself (or you wrote it while  
with another company), you need to be aware of the likely difficulty  
of obtaining RFC5378 clearances for your new work, and also to be  
aware that a work-around is on the way. The work-around should be in  
place to allow submissions to the San Francisco IETF well before the  
normal deadlines. See the attached text for more details.

If you feel that you have a draft for which this will be a problem,  
please contact me.

With a chair hat on, I am not going to allow a general discussion  
about RFC 5378 on this list (as it is off topic). Please take such  
comments to the main IETF discussion list. Questions about specific WG  
drafts are of course on topic.

Regards
Marshall
---------

---

From: Marshall Eubanks <[email-masked]>
Date: Wed, 14 Jan 2009 14:30:40 -0500

> "review of the current literature".  Maybe academics are less suit- 

As far as I know there is no definition of fair use in any US law. It  
is only
defined in case law. It is a real concept, with a long history, but it  
is not
clearly defined (which is a good thing in general, as new situations  
continually arise)

I would certainly regard a quotation of one paper in a review paper as  
fair use.

So, if you want to quote a small piece of one RFC in another to  
illustrate a particular point or
principal, that should be OK in my opinion. (Note, though, that I am  
not a lawyer, much less
an intellectual property judge, and so my opinion has no weight here.)

We really need a statement from the Trust and its counsel on this  
matter (guidelines as to when brief quotations of
earlier work do not require specific 5378 clearance).

But, we are not talking about such citations, we are mostly talking  
about the wholesale use of text
from one document in another, and I would not regard that as fair use  
without a contrary advice of
counsel. (In fact, I personally would not regard it as fair use even  
if I was so advised by counsel.)

Regards
Marshall

---

From: Russ Housley <[email-masked]>
Date: Wed, 14 Jan 2009 14:43:09 -0500

Paul:

First, I think that the ANNOUNCEMENT from Ed Juskevicius, the IETF 
Trust Chair, contains a very good summary of the problem.  I would 
extract text from that ANNOUNCEMENT to ensure that your WG is aware 
of the problem.  I am asking this because it came to my attention 
that there are some people that were not ware of it.  You can find 
the ANNOUNCEMENT here:

         http://www.ietf.org/mail-archive/web/ietf/current/msg54839.html

Second, I am asking WG Chairs to follow the discussion on the IETF 
Discussion mail list.  You are aware of the documents in your working 
group.  I believe the discussion will help you determine which 
documents are impacted and which ones are not.  When in doubt, please 
explain the situation on the discussion list and get advice.

Third, I am asking that discussion of this problem take place on the 
IETF Discussion mail list.  If there are too many parallel threads, 
no one will be able keep it all straight.  One mail list for the 
discussion seems to be the most productive way to chart a way forward.

Fourth, the current thread is focused on the short-term 
work-around.  Discussion to the long-term solution will come 
later.  I think that discussion of the short-term work-around will 
provide useful information for the long-term solution.  Further, I 
think that discussion to the short-term work-around and long-term 
solutions at the same time would cause confusion.

I hope this clarifies my request,
   Russ

At 11:48 AM 1/14/2009, Paul Hoffman wrote:
>or not you can publish a draft. A temporary workaround is being considered."
>

---

From: Paul Hoffman <[email-masked]>
Date: Wed, 14 Jan 2009 13:27:47 -0800

Thank you to Marshal for sending text. I have just sent that off to my WG, with a significant addition:

-----
There is an open question about whether or not an Internet Draft that quotes from the WG discussion also needs clearance from the person who proposed text in the discussion. For example, IKEv2bis has a lot of material that has been proposed on this mailing list.
-----

That's my reading of 5378; yours may differ.

--Paul Hoffman, Director
--VPN Consortium

---

From: Marshall Eubanks <[email-masked]>
Date: Wed, 14 Jan 2009 16:31:27 -0500

On Jan 14, 2009, at 4:27 PM, Paul Hoffman wrote:

> There is an open question about whether or not an Internet Draft  
> that quotes from the WG discussion also needs clearance from the  
> person who proposed text in the discussion. For example, IKEv2bis  
> has a lot of material that has been proposed on this mailing list.
> -----
>

It does, but I don't see that this hurts.

Marshall

---

From: Jeffrey Hutzelman <[email-masked]>
Date: Wed, 14 Jan 2009 20:50:44 -0500

--On Wednesday, January 14, 2009 02:43:09 PM -0500 Russ Housley 
<[email-masked]> wrote:

> group.  I believe the discussion will help you determine which documents
> are impacted and which ones are not.  When in doubt, please explain the
> situation on the discussion list and get advice.

I don't follow the IETF discussion list; the volume is too high and the 
signal-to-noise ratio too low, and I simply cannot afford to spend the time.

-- Jeff

---

From: Juergen Schoenwaelder <[email-masked]>
Date: Thu, 15 Jan 2009 09:38:18 +0100

> signal-to-noise ratio too low, and I simply cannot afford to spend the 

+1

/js

-- 
Juergen Schoenwaelder           Jacobs University Bremen gGmbH
Phone: +49 421 200 3587         Campus Ring 1, 28759 Bremen, Germany
Fax:   +49 421 200 3103         <http://www.jacobs-university.de/>

---

From: Martin Duerst <[email-masked]>
Date: Thu, 15 Jan 2009 19:34:07 +0900

In my case, the IETF discussion list goes into a folder that
I only look at when I really have time and feel like it, or
on very special occasions such as our WG having an IETF last
call (or the current situation, where I look at the mails
in the relevant thread(s)).

Regards,    Martin.

>> signal-to-noise ratio too low, and I simply cannot afford to spend the 

#-#-#  Martin J. Du"rst, Assoc. Professor, Aoyama Gakuin University
#-#-#  http://www.sw.it.aoyama.ac.jp       mailto:[email-masked]