Subject: encouraging compliance with IPR disclosure rules

From: Peter Saint-Andre <[email-masked]>
Date: Tue, 02 Aug 2011 09:38:10 -0600

Dear WG chairs,

The abstract of draft-polk-ipr-disclosure-00 (which Tim Polk and I
submitted earlier today) states:

   The disclosure process for intellectual property rights (IPR) in IETF
   stream documents is essential to the accurate development of
   community consensus.  However, this process is not always followed by
   participants in the IETF process.  Regardless of the cause or
   motivation, noncompliance with IPR disclosure rules can derail or
   delay completion of standards documents.  This document describes
   strategies for promoting compliance with the IPR disclosure rules.
   The strategies are primarily intended for area directors, working
   group chairs, and working group secretaries.

See http://www.ietf.org/id/draft-polk-ipr-disclosure-00.txt for details.

Tim and I would welcome feedback from WG chairs regarding this draft.

Thanks!

Peter

-- 
Peter Saint-Andre
https://stpeter.im/

---

From: Ted Lemon <[email-masked]>
Date: Tue, 2 Aug 2011 15:44:37 +0000

On Aug 2, 2011, at 11:38 AM, Peter Saint-Andre wrote:
Tim and I would welcome feedback from WG chairs regarding this draft.

I read the draft for content rather than as an editor, and was quite happy with the content.   So that's a definite thumbs up for the draft at least in principle.

---

From: Marc Blanchet <[email-masked]>
Date: Tue, 02 Aug 2011 11:46:39 -0400

Peter,
- like the draft. agree with its "principles".
- but IPR is a legal ball for me where I would really like to be outside 
of the legal circle, as wg chair. I can do my wg chair duties but there 
is a fine line.

  I would argue that the only way that this "better IPR disclosure 
timing" could succeed is if we put this process into a tool which:
- requires the authors to "agree" formally that all IPR has been 
submitted. (and made these as publicly available and archived)
- somehow find a way to have the same binding with wg members (I know 
that it does not seem easy to do, but at least pointing into that 
direction).

my take as a non-lawyer.

Marc.

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---

From: Joel Jaeggli <[email-masked]>
Date: Tue, 2 Aug 2011 08:58:09 -0700

On Aug 2, 2011, at 8:46 AM, Marc Blanchet wrote:

> - but IPR is a legal ball for me where I would really like to be outside of the legal circle, as wg chair. I can do my wg chair duties but there is a fine line.
> 
> I would argue that the only way that this "better IPR disclosure timing" could succeed is if we put this process into a tool which:
> - requires the authors to "agree" formally that all IPR has been submitted. (and made these as publicly available and archived)
> - somehow find a way to have the same binding with wg members (I know that it does not seem easy to do, but at least pointing into that direction).

Everyone on the mailing list or sitting in the room has accepted the note well statement at least once.

I think what you're asking for is the participants represent their respective companies as opposed to participating as individuals (as they do now) which frankly seems like a rather high bar.

---

From: Marc Blanchet <[email-masked]>
Date: Tue, 02 Aug 2011 12:03:57 -0400

> I think what you're asking for is the participants represent their respective companies as opposed to participating as individuals (as they do now) which frankly seems like a rather high bar.

you are right. probably too high bar.

I don't know, but I only see a solution based on a tool somewhere in the 
publication forwarding path where some people involved in the IPR need 
to do something to have all this "disclosure" happening. Peter and Tim 
draft is still based on the "good will" without any commit from the 
individuals involved with the IPR. Not complaining the draft, just 
saying we might need more.

Marc, not a lawyer.

---

From: Paul Hoffman <[email-masked]>
Date: Tue, 2 Aug 2011 09:08:30 -0700

> - somehow find a way to have the same binding with wg members (I know that it does not seem easy to do, but at least pointing into that direction).

I disagree that that is the "only way". I like the draft's proposal that WG chairs get more active by personally asking contributors, early, if they understand the IPR rules and believe they are following them. This would reduce the number of mistakes we see being made. As a WG chair, I have made such mistakes myself: recently, I assumed that a late IPR statement was purposeful on the part of the participant, when it wasn't.

> my take as a non-lawyer.

+1

--Paul Hoffman

---

From: Marc Blanchet <[email-masked]>
Date: Tue, 02 Aug 2011 12:24:50 -0400

Le 11-08-02 12:08, Paul Hoffman a écrit :
> I disagree that that is the "only way". I like the draft's proposal that WG chairs get more active by personally asking contributors,

well, that could be done with a tool, right?

(not because I want tools everywhere, it is because this very question 
need a tool for traceability and for making sure this process is done 
"all the time".)

Marc.

early, if they understand the IPR rules and believe they are following 
them. This would reduce the number of mistakes we see being made. As a 
WG chair, I have made such mistakes myself: recently, I assumed that a 
late IPR statement was purposeful on the part of the participant, when 
it wasn't.

---

From: David McGrew <[email-masked]>
Date: Tue, 2 Aug 2011 09:28:16 -0700

this looks quite sensible, and it is good to document the strategies  
and recommendations.

David

---

From: Ted Lemon <[email-masked]>
Date: Tue, 2 Aug 2011 16:31:19 +0000

On Aug 2, 2011, at 12:24 PM, Marc Blanchet wrote:
well, that could be done with a tool, right?

Nobody ever reads boilerplate (or at least, if they did, you can't prove it).   If you do it with a tool, it won't achieve the desired effect.   The way I read the advice for chairs was that chairs are being encouraged to have an actual exchange with authors, where the authors say explicitly whether or not they are aware of any IPR.   This is much less likely to be ignored than boilerplate.   Of course an author could always act in bad faith, but if they did so, they would have had to explicitly mislead another human being, not just click through some boilerplate.

---

From: Joe Touch <[email-masked]>
Date: Tue, 02 Aug 2011 09:36:31 -0700

Hi, all,

While I appreciate the goal here, there's simply no point.

Authors have been either ignorant of their IPR, or arguably informed but 
defiant of IETF process. Either way, repeated pestering by WG chairs 
doesn't serve any purpose other than to increase the load on WG chairs.

Absent an enforcement mechanism, this doesn't serve a purpose, and I 
don't see an enforcement mechanism that's feasible.

If the goal is simply to remind WG chairs to ask where possible, an 
email once a year (or once an IETF) - or an update to the Note Well - is 
sufficient.

Joe

---

From: "Joel M. Halpern" <[email-masked]>
Date: Tue, 02 Aug 2011 12:38:46 -0400

As a minor point, a tool that required one to affirm that disclosures 
had already been made would, as I understand our documents, a change in 
the rules.  The tools developers and leadership ought not make that 
unilaterally.  Please.

Yours,
Joel

On 8/2/2011 12:24 PM, Marc Blanchet wrote:
>>> - but IPR is a legal ball for me where I would really like to be
>>> outside of the legal circle, as wg chair. I can do my wg chair duties
>>> but there is a fine line.
>>>
>> I disagree that that is the "only way". I like the draft's proposal
>> that WG chairs get more active by personally asking contributors,
>

---

From: "Joel M. Halpern" <[email-masked]>
Date: Tue, 02 Aug 2011 12:43:04 -0400

Looking at the draft, it seems to describe useful techniques that may 
actually help.
They will not cover all cases, but nothing can.

Yours,
Joel

On 8/2/2011 12:31 PM, Ted Lemon wrote:
> Nobody ever reads boilerplate (or at least, if they did, you can't prove
> it). If you do it with a tool, it won't achieve the desired effect. The
> way I read the advice for chairs was that chairs are being encouraged to
> have an actual exchange with authors, where the authors say explicitly
> whether or not they are aware of any IPR. This is much less likely to be
> ignored than boilerplate. Of course an author could always act in bad
> faith, but if they did so, they would have had to explicitly mislead
> another human being, not just click through some boilerplate.
>

---

From: Mark Nottingham <[email-masked]>
Date: Tue, 2 Aug 2011 09:51:03 -0700

-1

While the intent is good, I'm very concerned about the unintended effects of this; you're trading fewer exceptions in the process (having to react to late IPR decisions) for more stiffness across the board in the early process, when the exceptions aren't *that* common.

--
Mark Nottingham   http://www.mnot.net/

---

From: Paul Hoffman <[email-masked]>
Date: Tue, 2 Aug 2011 10:03:13 -0700

> well, that could be done with a tool, right?

No; that is why I specifically said "personally". WG chairs are expected to lead WGs. This involves some person-to-person work, not just tools. I think this is a good area to apply such work.

--Paul Hoffman

---

From: Scott Brim <[email-masked]>
Date: Tue, 2 Aug 2011 13:09:12 -0400

> No; that is why I specifically said "personally". WG chairs are expected to lead WGs. This involves some person-to-person work, not just tools. I think this is a good area to apply such work.

and imho the person-to-person work is more effective.

The question(s) shouldn't just be put to authors.  Some (possibly
most) IPR slips occur because a non-author participant has IPR that
impinges and fails to say so.

---

From: Ted Lemon <[email-masked]>
Date: Tue, 2 Aug 2011 17:12:48 +0000

On Aug 2, 2011, at 12:51 PM, Mark Nottingham wrote:
While the intent is good, I'm very concerned about the unintended effects of this; you're trading fewer exceptions in the process (having to react to late IPR decisions) for more stiffness across the board in the early process, when the exceptions aren't *that* common.

IOW, we would have a chance to weigh the IPR claim as part of our decision as to which protocol to adopt?   I agree that this is true, but it seems to me to be a feature, not a bug.

On Aug 2, 2011, at 1:03 PM, Paul Hoffman wrote:
No; that is why I specifically said "personally". WG chairs are expected to lead WGs. This involves some person-to-person work, not just tools. I think this is a good area to apply such work.

Yes.

On Aug 2, 2011, at 12:36 PM, Joe Touch wrote:
Absent an enforcement mechanism, this doesn't serve a purpose, and I don't see an enforcement mechanism that's feasible.

If an author responds to a request by the chair for information about any IPR claims that they may be aware of, and the author lies to the chair, that is a significant thing.   If, god forbid, there were some lawsuit as a result of such a misrepresentation, such claims would be very important in the process of determining penalties.   So getting such a statement out of the author is definitely beneficial for potential future victims of the misrepresentation.

Furthermore, if we start to see actual incidences of this (which I doubt—I think by asking, we will simply get the authors to take more care in revealing IPR early, which is the desired result of the draft), that can feed into future policy decisions the IETF might make about how to handle such misrepresentations.   But if we don't have that chair<->author handshake, we miss out on this opportunity.

---

From: <[email-masked]>
Date: Tue, 2 Aug 2011 13:26:17 -0400

+1 

Something to keep in mind is that proposals for new work may come from relatively
new participants who don't have our (WG chair) level of familiarity with the disclosure
requirements. A friendly reminder from a WG chair (from whom agenda time is being
requested) may go a long way in that situation (encourage taking care of this
sooner rather than later).

Thanks,
--David

> -----Original Message-----
> From: [email-masked] [mailto:[email-masked]] On Behalf Of David McGrew
> Sent: Tuesday, August 02, 2011 12:28 PM
> To: Peter Saint-Andre; Tim Polk
> Cc: Working Group Chairs
> Subject: Re: encouraging compliance with IPR disclosure rules
>

---

From: Mark Nottingham <[email-masked]>
Date: Tue, 2 Aug 2011 10:26:36 -0700

> impinges and fails to say so.

I'd agree. However, if meetings and mailing lists are going to start featuring calls for IPR, it's going to fundamentally change the nature of the IETF.

Some work that is done in the IETF is sponsored by and directly related to a business, and the people who come from that business to the IETF have an obligation to disclose their IPR. Reminding them of that is a good thing.

However, some work that is done in the IETF isn't directly related to a business. Employees of various companies work on things only tangentially related to the businesses they work for -- if at all -- and this is tolerated, because the IETF's IPR policy has been carefully crafted to not require the lawyers to get involved in every decision.

Requiring something that looks like a formal statement is going to cause some people to shy away from participating, where previously they could do so in good conscience -- both in terms of honouring their agreement with their employer and doing the right thing WRT the IETF.

I'm not saying that nothing should be done here; only that it needs to be done very, very carefully, or we'll see the nature of the work that happens change somewhat. 

E.g., if there's a call in the APPS Area WG meeting for applicable IPR for the 5-10 totally disparate drafts on the agenda, and the commitment is binding and trackable by the blue sheets, the only sane reaction is to leave the room immediately. 

Cheers,

---

From: Ted Lemon <[email-masked]>
Date: Tue, 2 Aug 2011 18:00:27 +0000

On Aug 2, 2011, at 1:26 PM, Mark Nottingham wrote:
However, some work that is done in the IETF isn't directly related to a business. Employees of various companies work on things only tangentially related to the businesses they work for -- if at all -- and this is tolerated, because the IETF's IPR policy has been carefully crafted to not require the lawyers to get involved in every decision.

I agree with this last part, but I didn't take the draft as requiring this.   I took it as simply asking working group chairs to do some early due diligence.   If the author genuinely isn't aware of any IPR, that's a perfectly legitimate response.

---

From: Mark Nottingham <[email-masked]>
Date: Tue, 2 Aug 2011 11:02:59 -0700

> I agree with this last part, but I didn't take the draft as requiring this.   I took it as simply asking working group chairs to do some early due diligence.   If the author genuinely isn't aware o…

Yes, as long as the implications are thought through. How it's communicated (down to the exact wording), as well as the consequences / enforcement, are really important here. 

Cheers,

---

From: "Carlos Pignataro (cpignata)" <[email-masked]>
Date: Tue, 2 Aug 2011 13:16:11 -0500

Joe,

The title of the I-D reads starts with "Promoting Compliance [...]". With this in mind,

> don't see an enforcement mechanism that's feasible.

Not the goal as stated.

> sufficient.     

And not the goal either. The Abstract states:

  This document describes

And the Conclusions say:

   WG chairs and ADs are not expected to enforce IPR disclosure rules.

   This document is not suggesting that they take on such a role.

   However, compliance with IPR disclosure policies can significantly

  impact their effectiveness.  To support the efficient development of

   IETF standards and avoid unnecessary delays, chairs and ADs should

   look for opportunities to promote awareness and compliance with the

   IETF's IPR policies.  The strategies in this document promote

   compliance by raising the question of IPR disclosure at critical

   junctures in the standardization process.

As such, I think that this document is both quite useful and very sensible, a very pragmatic approach as a complement of a 'cron NB email once a year'... As I scan through the document, it does not claim to be a complete solution (and I agree with you that's a different beast); but conversely, this covers many often overlooked bases.

I think it is quite useful to document these strategies, and to also document expectations and scope for Chairs, Secretaries, and ADs. 

Best,

-- Carlos.

-----Original Message-----
From: [email-masked] [mailto:[email-masked]] On Behalf Of Joe Touch
Sent: Tuesday, August 02, 2011 12:37 PM
To: Peter Saint-Andre
Cc: Working Group Chairs; Tim Polk
Subject: Re: encouraging compliance with IPR disclosure rules

Hi, all,

sufficient.               

Joe

---

From: Ted Lemon <[email-masked]>
Date: Tue, 2 Aug 2011 18:19:23 +0000

On Aug 2, 2011, at 2:02 PM, Mark Nottingham wrote:
Yes, as long as the implications are thought through. How it's communicated (down to the exact wording), as well as the consequences / enforcement, are really important here.

Yes, they are important, and the IETF already has policies in place to describe how they are handled.   All that this draft does is to formalize when the questions are asked, and to encourage working group chairs to do their best to get answers before proceeding.

The only additional thing the draft could do to address your concern would be to define new policies.   I may have misunderstood the intent of the draft, but it seems to me that that is beyond its intended scope.

---

From: Joe Touch <[email-masked]>
Date: Tue, 02 Aug 2011 11:31:40 -0700

> The title of the I-D reads starts with "Promoting Compliance [...]".

OK, so speaking directly to the title, I think this effort fails.

I'm guessing from the way you continue to quote the doc in your response 
to my concerns that you think that quoting a doc will have more impact 
than just saying "follow the existing rules".

We don't need an RFC to script how we operate WGs.

Joe

---

From: Joe Touch <[email-masked]>
Date: Tue, 02 Aug 2011 12:16:03 -0700

On 8/2/2011 12:11 PM, Polk, William T. wrote:
...
> Based on my experiences, I think WG chairs can avoid future train wrecks
> by simply asking the question.

Do we seriously need an RFC to accomplish that?

Joe

---

From: Peter Saint-Andre <[email-masked]>
Date: Tue, 02 Aug 2011 14:17:31 -0600

On 8/2/11 10:31 AM, Ted Lemon wrote:
> it).   If you do it with a tool, it won't achieve the desired effect.  
> The way I read the advice for chairs was that chairs are being
> encouraged to have an actual exchange with authors, where the authors
> say explicitly whether or not they are aware of any IPR.   This is much
> less likely to be ignored than boilerplate.   Of course an author could
> always act in bad faith, but if they did so, they would have had to
> explicitly mislead another human being, not just click through some
> boilerplate.

Bingo. Tim has used this strategy to good effect.

Peter

-- 
Peter Saint-Andre
https://stpeter.im/

---

From: Peter Saint-Andre <[email-masked]>
Date: Tue, 02 Aug 2011 14:21:40 -0600

On 8/2/11 11:26 AM, Mark Nottingham wrote:
>> most) IPR slips occur because a non-author participant has IPR
>> that impinges and fails to say so.
> 
> I'd agree. However, if meetings and mailing lists are going to start
> featuring calls for IPR, it's going to fundamentally change the
> nature of the IETF.

I disagree with Scott about querying non-author participants. Tim and I
are most interested at this time in querying authors, because their lack
of compliance is the most damaging. And asking them about IPR they know
about when their drafts are about to be adopted as WG items or about to
undergo WGLC / IETF LC is not a significant burden, IMHO.

Peter

-- 
Peter Saint-Andre
https://stpeter.im/

---

From: "Carlos Pignataro (cpignata)" <[email-masked]>
Date: Tue, 2 Aug 2011 17:31:11 -0400

Joe,

Please see inline. 

Thumb typed by Carlos Pignataro.

> OK, so speaking directly to the title, I think this effort fails.

Success (and failure) criteria is dependent on the goal. I did not read the document as an attempt to solve all things IPR disclosure. 

> 
> I'm guessing from the way you continue to quote the doc in your response to my concerns that you think that quoting a doc will have more impact than just saying "follow the existing rules".

No. Perhaps I misunderstood your points, but I was quoting the doc only to show explicitly how you were arguing against document non-goals with orthogonality. 

> We don't need an RFC to script how we operate WGs.

I agree. Guideance, best practice, and recommendations is not scripting.

Showing the value of explicitly asking authors/editors about disclosing IPR they are aware of, without codifying it seems quite useful to me! 

Thanks,

Carlos.

---

From: Joe Touch <[email-masked]>
Date: Tue, 02 Aug 2011 15:36:39 -0700

Hi, Carlos (et al.),

On 8/2/2011 2:31 PM, Carlos Pignataro (cpignata) wrote:
...
> Showing the value of explicitly asking authors/editors about disclosing IPR they are aware of, without codifying it seems quite useful to me!

It's also useful to remind attendees not to wear badges outside the 
venue (they become pickpocket targets), and to watch their belongings.

Should we also have an RFC for that, or can we just let advice in how we 
run meetings be informal and out-of-band, rather than codifying every 
sneeze and gezhuntheit in an RFC?

Joe

---

From: "Polk, William T." <[email-masked]>
Date: Tue, 2 Aug 2011 15:11:52 -0400

Joe,

My experiences have been very different from yours.  I know of many cases
where authors or other participants deferred required IPR disclosures;
these are folks that are neither ignorant nor defiant.  They simply put
off something they view as painful.  There are certainly cases where
participants are ignorant of their responsibilities, as well.  In either
case, regularly displaying the Note Well does not seem to have the desired
effect.

I have "run the code" in this draft a number of times, and have been very
successful in promoting IPR disclosure by authors and presenters.  I
started doing so after an invited presenter from the W3C ran afoul of the
IPR disclosure rules.  In all fairness, that was my fault - I should have
realized that he would need to submit a disclosure. To be fair, I just
starting asking everyone that asked me for agenda time.

Asking all presenters/authors to confirm that IPR disclosures were up to
date had a surprising impact.  To my knowledge, no one ever lied about
their IPR, and several disclosures were filed as a result.  In one case,
the authors were presenting a -07 draft; I don't think they would have
*ever* submitted without a request.  The problem in most cases is that
corporate lawyers will dither forever.  Apparently when technical folks
tell their bosses they can't present/submit without an IPR disclosure,
wheels turn.

Thanks,

Tim

---

From: "Polk, William T." <[email-masked]>
Date: Tue, 2 Aug 2011 16:49:37 -0400

>Do we seriously need an RFC to accomplish that?

Need?  No, what we need is for people to file their disclosure statements.

Peter and I think the the procedures described here are *useful* since
they may encourage people to do what we need.

---

From: Barry Leiba <[email-masked]>
Date: Tue, 2 Aug 2011 18:54:02 -0400

> It's also useful to remind attendees not to wear badges outside the venue
> (they become pickpocket targets), and to watch their belongings.
>
> Should we also have an RFC for that, or can we just let advice in how we run
> meetings be informal and out-of-band, rather than codifying every sneeze and
> gezhuntheit in an RFC?

Come on, Joe: stop making absurd extensions as though they follow
naturally.  This is a situation that's clearly been a problem -- and
one that's a problem for the IETF as an organization, not a personal
problem for some participants.  It makes sense for the IETF, as an
organization, to say something about it.

I don't care whether it's an RFC of its own, an update to RFC 2418, an
IESG statement, or something else, but it seems reasonable to me to
point out to (perhaps new) working group chairs that this has been an
issue and to suggest interaction with the working group to address it.

As has been said, not new process, but recommendations to working
group chairs.  If you already have this in hand with your working
groups, that's great, and you may certainly pass over this advice.

Barry

---

From: Joe Touch <[email-masked]>
Date: Tue, 02 Aug 2011 16:01:36 -0700

Barry,

The IETF is a group that started with informal rules and is getting 
heavier weight by the minute.

I do think we should all push back on process where reasonable diligence 
by organizers suffices.

Yes, it's useful to remind WG chairs this week to remind their 
participants about IPR issues. Next week it might be something else.

The IETF as an organization does need to coordinate how it handles such 
issues. RFCs are not our only mechanism for doing that - we do have 
reminder emails, new WG training, etc.

Codifying this kind of 'advice' in an RFC is pure folly.

Joe

---

From: Aaron Stone <[email-masked]>
Date: Tue, 2 Aug 2011 16:08:15 -0700

On Tue, Aug 2, 2011 at 3:36 PM, Joe Touch <[email-masked]> wrote:
>> Showing the value of explicitly asking authors/editors about disclosing
>> IPR they are aware of, without codifying it seems quite useful to me!
>

An excellent point. Please file an errata against RFC 4677, Sections 4
and 11 - IETF Meetings and Security Considerations, respectively.
http://tools.ietf.org/html/rfc4677

Thanks,
Aaron

---

From: John C Klensin <[email-masked]>
Date: Tue, 02 Aug 2011 19:13:09 -0400

--On Tuesday, August 02, 2011 18:54 -0400 Barry Leiba
<[email-masked]> wrote:

>...
> I don't care whether it's an RFC of its own, an update to RFC
> 2418, an IESG statement, or something else, but it seems
> reasonable to me to point out to (perhaps new) working group
> chairs that this has been an issue and to suggest interaction
> with the working group to address it.
> 
> As has been said, not new process, but recommendations to
> working group chairs.  If you already have this in hand with
> your working groups, that's great, and you may certainly pass
> over this advice.

Barry,

Please do remember that the purpose of the Note Well is to call
people's attention to those provisions and that WG Chairs and
IETF attendees are referred to it frequently.  Is it not clear
enough and, if so, how would you and others recommend fixing it?

I'm not opposed to pushing more strongly on this issue -- it
might even help in a few cases-- but, after we've done something
often enough that it, too, becomes habit or boilerplate, I'm not
sure that adding mechanisms will affect outcomes much more than
the Note Well has.

    john

---

From: Joe Touch <[email-masked]>
Date: Tue, 02 Aug 2011 16:16:13 -0700

On 8/2/2011 4:08 PM, Aaron Stone wrote:
> On Tue, Aug 2, 2011 at 3:36 PM, Joe Touch<[email-masked]>  wrote:
>> Hi, Carlos (et al.),
>>

4677 is a doc for newbs that introduces informally -- decidedly NOT 
"best practice", "guidelines", nor "recommendations".

No, I don't think this should have been an RFC either, though; it's info 
that belongs linked off the IETF website at best.

Joe

---

From: John C Klensin <[email-masked]>
Date: Tue, 02 Aug 2011 19:26:05 -0400

--On Tuesday, August 02, 2011 14:21 -0600 Peter Saint-Andre
<[email-masked]> wrote:

>...
> I disagree with Scott about querying non-author participants.
> Tim and I are most interested at this time in querying
> authors, because their lack of compliance is the most
> damaging. And asking them about IPR they know about when their
> drafts are about to be adopted as WG items or about to undergo
> WGLC / IETF LC is not a significant burden, IMHO.
>...

Peter,

I've very concerned about the point that Joel raised -- we
actually can't do very much here without reopening the basic IPR
documents.  

But I want to pose a thought experiment:

Suppose the posting tools were modified to do a check on
whatever IPR statement appears in the document and to then send
a note to every listed author containing a copy of the Note Well
and asking for confirmation that the IPR requirements had been
met and noting that the authors are individually and
collectively responsible for that.  That would replace the
confirmation note that is now sent only to the author who
submits the document and authorizes posting.  

Perhaps it would need to go to all authors every time, perhaps
only to an author who appears for the first time on a given
document (advice of Counsel should be sought if this were ever
more than a thought experiment).

Clearly this would slow the posting process considerably for
documents with multiple authors.  Some of us might consider that
a feature; others would hate it.

But do you think it would actually accomplish anything vis-a-vis
IPR and, if so, would it be enough to justify the time and
effort?

     john

p.s. Remember that we know how to solve this problem -- really
solve it.   Unfortunately, it pretty much requires holding
companies responsible, not just their employees.  And that
requires, if not actual company membership and representation in
the IETF, at least forcing people to identify their
affiliations, formally acknowledge that they have authorization
from their companies to be there, and that they show up with
letters documenting that authorization and company agreement to
our IPR terms (which we might want to modify under those
circumstances).  There are, obviously, a few problems with that
approach --starting from the observation that the IETF community
wouldn't stand for it-- but it would solve the problem.

---

From: Joe Touch <[email-masked]>
Date: Tue, 02 Aug 2011 17:02:46 -0700

Hi, John,

My fear with a click-based ACK is that it will be clicked without much 
thought.

I.e., all it will do is delay the posting of drafts, esp. those with 
multiple authors who aren't in the same timezone.

Joe

---

From: "Carlos Pignataro (cpignata)" <[email-masked]>
Date: Tue, 2 Aug 2011 20:42:05 -0400

On Aug 2, 2011, at 6:36 PM, "Joe Touch" <[email-masked]> wrote:

> ..
> It's also useful to remind attendees not to wear badges outside the venue (they become pickpocket targets), and to watch their belongings.
> 
> Should we also have an RFC for that, or can we just let advice in how we run meetings be informal and out-of-band, rather than codifying every sneeze and gezhuntheit in an RFC?
> 

Joe, I might be stating the obvious, but late IPR disclosures have a different effect on the IETF as a standardization forum than pickpockets or choice of salad dressing on individuals. IMHO, RFC or not, tool or not, verification email or not, this is a great start and discussion and a good pragmatic set of recommendations/experiences seeking community input and review, for a real problem. Do you have a proposal? Is it keep displaying the NB more prominently?

Thanks,

-- Carlos.

---

From: Ted Hardie <[email-masked]>
Date: Tue, 2 Aug 2011 17:50:57 -0700

So, I've read the draft and the discussion to this point.

I don't think this can go forward as an informational document and
have any real impact.  If it is informational, then the fundamental
rules still apply.  Those say that the disclosures should be made "as
soon as reasonably possible".  They do not define what that means, and
they clearly anticipate cases where the disclosure is made after a
contribution is made. That's the actual source of much of the trouble
in this area.

If you actually gate access to the working group agenda on
disclosures, in my opinion you are changing the rules by making that
the bound of what is "as soon as reasonably possible".  That means you
need to open the relevant documents and endure the IPR-go-round again.

If you do not change the rules, but leave this up to the
interpretation of the individual and his/her company as to whether
their disclosure is "as soon as reasonably possible", then anyone
actually acting in ways that are deleterious now can continue to do so
after having received this informational advice.

I would not support publication of this document as an Informational
RFC, in other words.  I leave it up to the masochism of others to
determine whether they are willing to re-open the IPR group and
documents.

regards,

Ted

---

From: Joe Touch <[email-masked]>
Date: Tue, 02 Aug 2011 17:53:44 -0700

...

> Joe, I might be stating the obvious, but late IPR disclosures have a
> different effect on the IETF as a standardization forum than
> pickpockets or choice of salad dressing on individuals. IMHO, RFC or
> not, tool or not, verification email or not, this is a great start
> and discussion and a good pragmatic set of
> recommendations/experiences seeking community input and review, for a
> real problem.

I don't debate that.

> Do you have a proposal? Is it keep displaying the NB
> more prominently?

My concern is that

	a) WG chairs are not the IPR police
		yes, we CAN remind authors and participants,
		and we do (we could have a second slide
		along the lines of the Note Well too), but
		I don't see much more from WG chairs

	b) there's no disincentive here
		there are many reasons IPR isn't disclosed;
		laziness, ignorance, apathy, etc.

		not all - or any - need be malicious.

		we encourage people to participate as
		individuals, so we can't also ask them to
		police their own companies on these issues

Yes, we can remind people. But there's no utility in a gating function 
(e.g., click-to-acknowledge for ID submissions, etc.) - it just punishes 
everyone with a cumbersome mechanism.

So the only solution I see is a second-page to the note-well, and email 
reminders to WG chairs to remind everyone (as with the note-well) to 
speak up when they know about IPR.

Joe

---

From: Scott Brim <[email-masked]>
Date: Tue, 2 Aug 2011 21:23:01 -0400

>        a) WG chairs are not the IPR police

But they are the first to feel the pain when something goes wrong. A small
investment of time in personal interactions with wg participants in order to
avoid what might be a lot of pain for everyone seems reasonable.

>                I don't see much more from WG chairs

Just one more thing: don't just remind them, ask them

I agree, it solves only a fraction of the problem and only until people
become inured.

> So the only solution I see is a second-page to the note-well, and email
reminders to WG chairs to remind everyone (as with the note-well) to speak
up when they know
> Joe

If it is left informal and unspecified, then when you talk to people about
it they will give it more attention and consideration.

IMHO - Scott

---

From: Hui Deng <[email-masked]>
Date: Wed, 3 Aug 2011 10:45:46 +0800

Speaking for diversity of IETF, new WG chair from Asia does need more guidance or reference about the details :)
thanks,
 
-Hui

> Date: Tue, 2 Aug 2011 18:54:02 -0400
> From: [email-masked]
> To: [email-masked]
> CC: [email-masked]
>

---

From: Peter Saint-Andre <[email-masked]>
Date: Tue, 02 Aug 2011 20:59:07 -0600

> determine whether they are willing to re-open the IPR group and

Ted, I think you misunderstand the intent of this proposal -- which
means that Tim and I have not explained it clearly enough in the document.

The power of this proposal does not lie in creating more rules or
establishing some sort of IPR police; instead, it lies in the simple
human interaction of directly asking I-D authors whether they are aware
of any IPR claims related to the technologies they are asking a working
group, or the IETF community at large, to advance along the standards
track. Tool warnings can be clicked through and Note Well slides are
routinely ignored (who can read all that tiny text anyway?), but it is
less likely that I-D authors will be comfortable evading or falsely
answering a question asked by a WG chair or Area Director.

Peter

-- 
Peter Saint-Andre
https://stpeter.im/

---

From: Peter Koch <[email-masked]>
Date: Wed, 3 Aug 2011 11:01:34 +0200

> issue and to suggest interaction with the working group to address it.

I doubt it is that easy since the "advice" kind of reverses the burden
of proof. Participants are, as of today, obliged to adhere to the IETF
IPR rules as communicated through the Note Well.  If there is now
conflicting advice that WG chairs have to actively "ask" partcipants
then does failure to do so relieve the participants from their obligation?

As a WG chair I do not want to be in such situation.

-Peter

---

From: Scott Brim <[email-masked]>
Date: Wed, 3 Aug 2011 06:35:36 -0400

> then does failure to do so relieve the participants from their obligation?

Nothing. Do police advertisements encouraging you not to drink and
drive change the laws about it?

---

From: Leif Johansson <[email-masked]>
Date: Wed, 03 Aug 2011 12:44:16 +0200

> drive change the laws about it?

I think the point here is that none of us (fortunately) are lawyers so
that when a chair talks to a WG contributor about practicing safe specs
he/she is *not* giving legal advice and is not liable.

Peter and Tim are essentially suggesting we talk to WG contributors (!)

	Cheers Leif

---

From: Peter Koch <[email-masked]>
Date: Wed, 3 Aug 2011 12:50:22 +0200

> drive change the laws about it?

wrong comparison. First, the IETF is not the government and their privilege
is that laws usually apply regardless of actual reception by the subject.
Second, the police are not required to make these public awareness advertisements.
Third, these advertisements aim at the public, not at the individual.

If we change the rules so that the IETF, acting through the WG chairs,
has an additional obligation of education and investigation, targetting
the individual contributor or participant, then it isn't too far fetched
that failure to comply on the side of the IETF might hold the violator harmless.
I'd appreciate advice from the IETF's legal counsel.

-Peter

---

From: Andrew Sullivan <[email-masked]>
Date: Wed, 3 Aug 2011 07:07:03 -0400

> issue and to suggest interaction with the working group to address it.

That makes it sound like ideal material for the chairs' wiki.

A

-- 
Andrew Sullivan
[email-masked]

---

From: Andrew Sullivan <[email-masked]>
Date: Wed, 3 Aug 2011 07:22:55 -0400

On Tue, Aug 02, 2011 at 08:59:07PM -0600, Peter Saint-Andre wrote:

> establishing some sort of IPR police

I think this pretty close to true, and I rather like the suggestion,
but the proposal does raise a troubling point.

BCP 79 sez

6.1.3.  IPR of Others

   If a person has information about IPR that may Cover IETF
   Contributions, but the participant is not required to disclose
   because they do not meet the criteria in Section 6.6 (e.g., the IPR
   is owned by some other company), such person is encouraged to notify
   the IETF by sending an email message to [email-masked].  Such a
   notice should be sent as soon as reasonably possible after the person
   realizes the connection.

It seems to me that, once a WG chair has determined that there's a
draft floating about with undisclosed IPR, the chair immediately
incurs an obligation to the community to make a disclosure under
6.1.3, if the IPR holder declines to make such a disclosure.  One
could try to weasel out of this by saying that §6.1.3 only encourages
such notification, but I would argue that, if we cannot rely on chairs
to do this sort of thing, the section is inoperative.

That means that people will start to regard the chairs perhaps not as
IPR disclosure police, but IPR disclosure tattle-tales instead.

I therefore think that the suggestion is a good idea, and one that I
will probably undertake; but I also don't think it should be published
as an RFC because people will interpret such publication as some sort
of new process rule.

A

-- 
Andrew Sullivan
[email-masked]

---

From: Mary Barnes <[email-masked]>
Date: Wed, 3 Aug 2011 08:37:18 -0500

But, the question is whether the folks that are drinking and driving really
heed the warnings?   Certainly, those of us that don't drink and drive
understand the import of that warning.  And, those that don't heed the
warning, run the risk of being arrested.  As WG chairs (and as IETF) we have
no policy or authority to do anything other than make sure the WG is aware
of the IPR and includes that in their decisions.  There is no punishment for
the folks that don't follow the policy.  We don't exclude anyone whose
sponsor has disclosed (late) IPR from participating.  And, since we have no
responsibility to search for IPR, it is unlikely that we are ever fully
aware of all the potential IPR associated with work items.

I understand that folks new to IETF might not understand the import of RFC
3979 nor realize that it's BCP 79,  which is what they are asserting they
comply with when they submit their draft.  When I am working with someone
new to the IETF, I do let them know that they should be aware of the IETF
IPR policy and ensure it's followed.

I don't think it will increase the number of disclosures to add an
additional email exchange everytime someone wants agenda time.  I think it's
a YMMV situation and chairs that think it will help can choose to do so.
But, I don't think we need a document describing such.  It might be good to
add the basic info in the draft on the WG chairs wiki so that newer chairs
are aware that this is something they could choose to do.

Regards,
Mary.

---

From: Ted Hardie <[email-masked]>
Date: Wed, 3 Aug 2011 07:37:58 -0700

On Wed, Aug 3, 2011 at 5:29 AM, Polk, William T. <[email-masked]> wrote:
<snip>
> This document does not try to solve all the IETF's IPR problems.  It is
> focused
> on what I think of as "planned contributions" - submitting drafts or making
> pre-planned presentations.  Contributors have time to get their act
> together,
> and should make appropriate IPR disclosures IMHO.

But the important point here is that your humble opinion as chair or
AD is now governing, rather than the individual or individual's
company believes is the "as soon as reasonably possible".

<strong>The following is hypothetical and does not reflect the opinion
of anyone but me.  Inferring anything about my employers past or
present would be incorrect. </strong>

Let's say that a company has a policy stating that IPR declarations
should be made as soon as the final patent text has been filed.  An
individual files a provisional patent on something that they  believe
will be an effective method for practicing some piece of IETF work
covered by draft-foo (note, the inventor does not believe it is
essential to practice the standard, just that it is a patentable
effective method).  Under the current rules, they can realistically
decide that it is reasonable to make the declaration when the final
text is ready and filed, since it will actually govern how much is
covered; they could also decide to file an IPR declaration now and
then withdraw it later.  But the key point is that under the current
rules it is up to them and their lawyers  to decide whether that
timing is reasonable.

<End of hypothetical>

If you want chairs to have the power to essentially force disclosures
to happen at a specific time, in my personal opinion you are de facto
changing the rules.  Section 3 of your draft implies to me that this
power now goes to a WG chair, exercised in part by control of agenda
time.  I think that means you are opening up RFC 3979, as you are
changing the Best Current Practice.  You may want to do that, but I
don't think you can do it in an informational document.

If you change the document to say "Hey, remind people of the Note Well
when they ask for agenda slots" then I agree you would not be changing
the rules.  I think the document would need a serious re-write if that
is the case. I also think it is largely pointless as an RFC in that
case, so I would personally not bother.

regards,

Ted

---

From: Jeffrey Hutzelman <[email-masked]>
Date: Wed, 03 Aug 2011 10:40:20 -0400

On Wed, 2011-08-03 at 08:37 -0500, Mary Barnes wrote(*):

> additional email exchange everytime someone wants agenda time.  I
> think it's a YMMV situation and chairs that think it will help can
> choose to do so. But, I don't think we need a document describing
> such.  It might be good to add the basic info in the draft on the WG
> chairs wiki so that newer chairs are aware that this is something they
> could choose to do. 

I've seen an awful lot of people saying we shouldn't change the rules or
set something in stone or "script" how we run working groups.  The
document under discussion doesn't do any of those things; it does not
change IETF process; all it does is offer some advice.  Peter and Tim
came to us for input on the sort of advice they might offer, and instead
of giving any, we've spent 60+ messages complaining that it shouldn't be
an RFC.

Folks, it's not an RFC.  It _is_ an internet-draft, and last I checked,
internet-drafts _were_ the working documents of the IETF.  So, can we
stop complaining about its form, and instead either discuss its content
or just shut up?

-- Jeff

* ... but I don't mean to pick on Mary

---

From: "DRAGE, Keith (Keith)" <[email-masked]>
Date: Wed, 3 Aug 2011 17:01:13 +0200

> stop complaining about its form, and instead either discuss its content

The draft says at the top:

"Intended status: Informational"

The only interpretation I can place on this is that the authors intend it to be an informational RFC, and we are discussing this document with that intent in mind.

Keith

> From: [email-masked] [mailto:[email-masked]] On
> Behalf Of Jeffrey Hutzelman
> Sent: 03 August 2011 15:40
> To: Mary Barnes
> Cc: Working Group Chairs

---

From: Alan Clark <[email-masked]>
Date: Wed, 3 Aug 2011 07:08:44 -0400

I've been involved in the IPR/Standards issue since 1985 in ITU, TIA, ATIS,
ETSI, IETF... and have seen many blatant abuses of standards committee
policy, both by participants and by committee chairs.  For example one case
in ITU - a large telecom equipment provider submitted a contribution and did
not disclose the existence of a patent (and yes, inventor = contribution
author) until 12 months after the standard was published.  To date they have
not been penalized in any way by ITU - and are still enforcing their patent
against implementers of the standard.

IMHO the best approach is a mandate that anyone presenting a draft/
contribution must be required to make an IPR disclosure as a condition of
presenting, as suggested in the Polk draft - this is policy in a number of
SDO's and is taken seriously by all concerned.

It is much more difficult to require participants to make disclosures
related to standards being developed within the groups they participate in.
Some SDO's do issue a call for IPR disclosure to committee participants,
however these SDO's typically have a well defined membership that requires
execution of an agreement - so it would not work well in IETF. It may help
if there was a way for companies to register an "IPR Disclosure Request"
email address with IETF to receive automatic notifications of new WG drafts
- this would at least provide companies that wanted to enforce their patents
with a way to know what they need to review.

Alan

On 8/3/11 6:44 AM, "Leif Johansson" <[email-masked]> wrote:

> -----BEGIN PGP SIGNED MESSAGE-----
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> 
> 
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---

From: "Polk, William T." <[email-masked]>
Date: Wed, 3 Aug 2011 08:12:57 -0400

Hi John,

Thanks for reading the draft!  Comments in-line

>actually can't do very much here without reopening the basic IPR

This document was deliberately scoped to things that do not reopen the
basic IPR docs.  The goal is to enhance compliance to the current rules,
nothing more.

>submits the document and authorizes posting.

I have also floated that idea, but that would require broad agreement
within the community.  I see this document as the tools-free version, wg
chairs can opt-in if they wish.

>wouldn't stand for it-- but it would solve the problem.

This is the approach that the "formal" standards bodies take, and we
should acknowledge that they *still* encounter IPR issues.  The only
thing that solves the issue is following the rules, whatever they
are... Although I suspect the legal ramifications are much clearer
with company membership and representation.

Thanks,

John

---

From: "Polk, William T." <[email-masked]>
Date: Wed, 3 Aug 2011 08:29:39 -0400

Hi Ted,

This document does not try to solve all the IETF's IPR problems.  It is
focused
on what I think of as "planned contributions" - submitting drafts or making
pre-planned presentations.  Contributors have time to get their act
together, 
and should make appropriate IPR disclosures IMHO.  However, the document
does 
not preclude the chair from accepting a draft or permitting a
presentation.  
It does help the chair know the IPR status and decide on a case-by-case
basis 
whether it is okay to make a presentation, submit a -00 draft, or submit a
-01 
(or 07) draft without having the disclosure statement.

>need to open the relevant documents and endure the IPR-go-round again.

I strongly disagree.  I believe that wg chairs are already permitted to
make
such inquiries, and to make decisions about agendas on that inforamtion
(as 
well as any other information they have!).  The chair is within their role
and responsibilities preventing the community from wasting its valuable
time without sufficient information.

(IMHO, the "as soon as reasonably possible" covers "unplanned
contributions", 
where you go to the mike or send email in response to another contributor.
 There 
is no excuse in my mind for planned contributions without IPR disclosure.)

>determine whether they are willing to re-open the IPR group and

Note that this document does not claim to update any existing RFC.  I do
intend to reopen anything.   Which RFCs do you think it updates?

Thanks,

Tim

---

From: Marshall Eubanks <[email-masked]>
Date: Wed, 3 Aug 2011 11:46:57 -0400

> Tim and I would welcome feedback from WG chairs regarding this draft.
It is my understanding that a revision of BCP 79 is just beginning; I
suspect that this effort should be folded into that.

Regards
Marshall

---

From: Brian Weis <[email-masked]>
Date: Wed, 3 Aug 2011 10:04:30 -0700

> I think this pretty close to true, and I rather like the suggestion,

I generally see value to the suggestions in this I-D. However, there's one statement in section 3 that does appear to be normative:

  "If necessary disclosures have not been submitted, the chair has a
   choice: insist on an informal disclosure in the presentation, or deny
   the agenda slot unless the IPR disclosure is submitted."

Are these the only choices, because the WG chair is now fully responsible (and perhaps culpable) if they do not take action? This would seem to match implication of the BCP text that Andrew makes below. If so, this is an important discussion for this I-D because it's an important input for the WG chair to decide whether or not to act on the recommendations in this draft.

Alternatively, if there are other choices for the WG chair those should be mentioned.

Thanks,
Brian

-- 
Brian Weis
Security Standards and Technology, SRTG, Cisco Systems
Telephone: +1 408 526 4796
Email: [email-masked]

---

From: "Randy Presuhn" <[email-masked]>
Date: Wed, 3 Aug 2011 10:56:37 -0700

Hi -

> From: "Leif Johansson" <[email-masked]>
> To: <[email-masked]>
> Sent: Wednesday, August 03, 2011 3:44 AM
...
...

Having co-chaired a WG which never had a face-to-face meeting,
(I've never met my co-chair, nor most of the WG contributors!) I
would not want to be put into the position of having to somehow
track down and talk to people.

Randy

---

From: Peter Saint-Andre <[email-masked]>
Date: Wed, 03 Aug 2011 11:57:46 -0600

> track down and talk to people.

Email seems to work just fine...

---

From: "Randy Presuhn" <[email-masked]>
Date: Wed, 3 Aug 2011 11:34:53 -0700

Hi -

> From: "Peter Saint-Andre" <[email-masked]>
> To: "Randy Presuhn" <[email-masked]>
> Cc: <[email-masked]>
> Sent: Wednesday, August 03, 2011 10:57 AM

I just don't like the idea that we should be
required to track down and *talk* to WG contributors.
If we're formalizing this process, we should not over-specify.

Randy

---

From: Peter Saint-Andre <[email-masked]>
Date: Wed, 03 Aug 2011 12:36:22 -0600

> If we're formalizing this process, we should not over-specify.

First, we're not formalizing this process and we're not imposing
additional requirements on WG chairs, WG secretaries, or area directors.
Tim and I are making suggestions based on experience.

Second, we're talking about interacting with authors of documents that
are about to become WG items or for which publication as an RFC is being
requested. Those sure seem like times when the WG chairs are already
talking to the authors. If not, then we have a bigger problem on our
hands...

Peter

-- 
Peter Saint-Andre
https://stpeter.im/

---

From: "Randy Presuhn" <[email-masked]>
Date: Wed, 3 Aug 2011 12:05:17 -0700

Hi -

> Sent: Wednesday, August 03, 2011 11:36 AM
...
> talking to the authors. If not, then we have a bigger problem on our

My own experience is that email is adequate as a communication
channel for these purposes.  Requiring chairs to *talk* to the
authors is going too far.  As a chair or co-chair I've had document
authors / editors whom I've neither met nor talked to.  Email
works fine, and we should not require speech.

Randy

---

From: Ronald Bonica <[email-masked]>
Date: Wed, 3 Aug 2011 15:18:16 -0400

Peter,

Every six months or so, the IETF receives a late IPR disclosure. It appears that we have three choices:

1) do nothing
2) punish late disclosures
3) encourage on-time disclosures

If we do nothing, we can expect late disclosures to continue at their current rate or possibly become me frequent. Punishing late disclosure isn't really an option, because a) beyond PR Actions, the IETF has no method of punishing people and b) we really don't want to be in that business, anyway.

This leaves Option #3. Kudos to Tim for developing a proposal.

                                                  Ron

> Behalf Of Peter Saint-Andre
> Sent: Tuesday, August 02, 2011 11:38 AM
> To: Working Group Chairs
> Cc: Tim Polk
> Subject: encouraging compliance with IPR disclosure rules
> 
> Dear WG chairs,
>

---

From: Leif Johansson <[email-masked]>
Date: Wed, 03 Aug 2011 21:50:14 +0200

> talking to the authors. If not, then we have a bigger problem on our

omg yes.

---

From: John C Klensin <[email-masked]>
Date: Wed, 03 Aug 2011 15:55:45 -0400

--On Wednesday, August 03, 2011 08:12 -0400 "Polk, William T."
<[email-masked]> wrote:

>...
> This is the approach that the "formal" standards bodies take,
> and we should acknowledge that they *still* encounter IPR
> issues.

Yes.  And I want to stress, again, that I'm not advocating it
for the IETF, only pointing out that it provides better leverage
on enforcing the rules.

>  The only thing that solves the issue is following the
> rules, whatever they are... Although I suspect the legal
> ramifications are much clearer with company membership and
> representation.

Probably true.  What is more important is that the bodies that
have company membership and representation models have a
plausible mechanism for punishing offenders by kicking them (and
hence all of their employees and affiliates) out.  That
mechanism is rarely used in my experience (for reasons unrelated
to IPR) but it does exist and, with the current membership
model, the IETF has no equivalent mechanism.  Once again, I'm
not suggesting that we change the membership model, only
encouraging people to understand that, with it, about all we can
do is to try to persuade people to comply... and that, no matter
what we do, "persuasion" is unlikely to be effective against an
organization that actually wants to evade the rules.

   john

---

From: Marshall Eubanks <[email-masked]>
Date: Wed, 3 Aug 2011 17:36:49 -0400

On Wed, Aug 3, 2011 at 4:04 PM, John C Klensin <[email-masked]> wrote:

>
>
> --On Wednesday, August 03, 2011 11:46 -0400 Marshall Eubanks
> <[email-masked]> wrote:
>
> > It is my understanding that a revision of BCP 79 is just
> > beginning; I suspect that this effort should be folded into
> > that.
>
> Marshall,
>
> I heard one hint of interest in this in Quebec.  While I
> certainly believe that BCP 79 and its penumbra could use some
> work, I've seen nothing resembling an announcement of a BOF,
> proposed WG, of other open and public process for doing so.
> Since developing a proposed revision in private and then
> presenting it to the community would, IMO at least, lie
> seriously outside the charter of the IETF Trust, I assume that
> isn't happening.
>

That is correct. In my opinion the Trust should have nothing directly to do
with initiating such an effort, although
individual Trustees are of course free to act on their own.

>
> So, could you share what causes you to believe that such a
> revision effort has begun?
>

 Jorge Conteras has responded on this.

Marshall

---

From: John C Klensin <[email-masked]>
Date: Wed, 03 Aug 2011 16:04:03 -0400

Marshall,

    john

---

From: Eric Burger <[email-masked]>
Date: Wed, 3 Aug 2011 20:48:15 -0400

OK, I'm not a lawyer either, but I do occasionally get paid by lawyers.

What problem are we trying to fix?  This whole issue came to the fore due to a very late disclosure Russ mentioned in plenary.  In this particular case, the courts will encourage compliance.  It will take about 12 seconds for a judge or jury to void that particular patent based on the RAMBUS/IEEE precident.

Said differently, there is no reason for the IETF to punish a late disclosure.  The courts will do that for us.

So, what is left?

Another lawyer question, but one I'm willing to take a bet on, is that if we have even an Informational Draft that hints that a WG Chair has a duty to ask for IPR and the IETF cannot produce iron-clad proof that such a question was asked, you have handed a bad actor a Get Out of Jail Free card.

Trust me: the law makes even less sense than RFC 2026 in practice: You know and I know that an Informational RFC is just a bunch of random, meaningless text. However, to a jury in the Eastern District of Texas, a really good lawyer can twist a document like draft-polk-ipr-disclosure into something you really would not recognize.

Let us NOT create a mine field of our own creation.  If we want to let new WG Chairs know that this stuff happens, and if we want to give them some pointers as to how to avoid this stuff, I would STRONGLY suggest we NOT publish an RFC, of any flavor, and just post this information to the WG Chairs Wiki.

--
- Eric

P.S., If you want to take out the IPR in question, I know a very high priced expert witness who can help.

---

From: Peter Saint-Andre <[email-masked]>
Date: Thu, 04 Aug 2011 11:39:50 -0600

On 8/3/11 6:48 PM, Eric Burger wrote:

> Let us NOT create a mine field of our own creation.  If we want to
> let new WG Chairs know that this stuff happens, and if we want to
> give them some pointers as to how to avoid this stuff, I would
> STRONGLY suggest we NOT publish an RFC, of any flavor, and just post
> this information to the WG Chairs Wiki.

Eric, you raise a very good point. Although I can't speak for Tim, I'd
be comfortable (perhaps more comfortable) placing this information on
the wiki.

Peter

-- 
Peter Saint-Andre
https://stpeter.im/

---

From: Brian E Carpenter <[email-masked]>
Date: Fri, 05 Aug 2011 11:04:05 +1200

> Let us NOT create a mine field of our own creation. 

I agree with Eric. It's pretty much impossible these days to
make an IETF contribution without going through a step that
involves the Note Well or a pointer to the Note Well.
That seems like enough due diligence, and the sanction is
for the courts.

> if we want to give them some pointers as to how to avoid this
> stuff, I would STRONGLY suggest we NOT publish an RFC,

We already published RFC 3669. It doesn't seem to have done any
harm.

Regards
   Brian Carpenter

On 2011-08-04 12:48, Eric Burger wrote:
> What problem are we trying to fix?  This whole issue came to
> the fore due to a very late disclosure Russ mentioned in
> plenary.  In this particular case, the courts will encourage
> compliance.  It will take about 12 seconds for a judge or
> jury to void that particular patent based on the RAMBUS/IEEE
> precident.
> 
> Said differently, there is no reason for the IETF to punish a
> late disclosure.  The courts will do that for us.
> 
> So, what is left?
> 
> Another lawyer question, but one I'm willing to take a bet
> on, is that if we have even an Informational Draft that hints
> that a WG Chair has a duty to ask for IPR and the IETF cannot
> produce iron-clad proof that such a question was asked, you
> have handed a bad actor a Get Out of Jail Free card.
> 
> Trust me: the law makes even less sense than RFC 2026 in
> practice: You know and I know that an Informational RFC is
> just a bunch of random, meaningless text. However, to a jury
> in the Eastern District of Texas, a really good lawyer can
> twist a document like draft-polk-ipr-disclosure into
> something you really would not recognize.
> 
> Let us NOT create a mine field of our own creation.  If we
> want to let new WG Chairs know that this stuff happens, and
> if we want to give them some pointers as to how to avoid this
> stuff, I would STRONGLY suggest we NOT publish an RFC, of any
> flavor, and just post this information to the WG Chairs Wiki.
> 
> 
> -- - Eric
> 
> P.S., If you want to take out the IPR in question, I know a
> very high priced expert witness who can help.
> 
> 
> 
> ------------------------------------------------------------------------
> 
> 
> _______________________________________________ BOFCHAIRS
> mailing list [email-masked] 
> https://www.ietf.org/mailman/listinfo/bofchairs

---

From: Eric Burger <[email-masked]>
Date: Fri, 5 Aug 2011 00:28:23 -0400

RFC 3669 is backwards-looking and has no prescriptions.

True story: one lawyer tried to convinc a jury that an RFC is not a standard, because it is called a Request For Comments.  To the lawyer, any rational individual would consider something called a Request For Comments to obviously be only a suggestion. RFC 2026 does not help with it's "RFC != standard" disclaimer. A rational person might interpret RFC 2026's, "Not every RFC is a standard" to at least imply that "some RFCs are standards," but a good lawyer can convince a jury that is not the case.

---

From: "Martin J. Dürst" <[email-masked]>
Date: Sat, 06 Aug 2011 15:20:43 +0900

I'm currently mostly offline, and the discussion may have moved on (or, 
hopefully, subsided, in which case I sincerely appologize for the late 
post), but when I started, I was immediately thinking about what Eric is 
describing below (and Peter Koch also pointed out).

Please, please, let's not play with the fire by introducing all kinds of 
additional 'advice' without extremely careful consideration and the 
necessary legal advice.

As most others, IANAL, but what I have heard and seen of the law is that 
it most often doesn't work the way we technical people would assume it 
does (e.g., if there's a problem, and we see a solution, we fix it).

Regards,   Martin.

---

From: Scott Brim <[email-masked]>
Date: Sat, 6 Aug 2011 06:46:17 -0400

> RFC 3669 is backwards-looking and has no prescriptions.

3669 intentionally documented best practice and distilled out
recommendations from actual practice. It did not try to set policy. It was
separated out as Informational for a reason.

>
> True story: one lawyer tried to convinc a jury that an RFC is not a
standard, because it is called a Request For Comments.  To the lawyer, any
rational individual would consider something called a Request For Comments
to obviously be only a suggestion. RFC 2026 does not help with it's "RFC !=
standard" disclaimer. A rational person might interpret RFC 2026's, "Not
every RFC is a standard" to at least imply that "some RFCs are standards,"
but a good lawyer can convince a jury that is not the case.

---

From: John C Klensin <[email-masked]>
Date: Sun, 07 Aug 2011 12:01:40 -0400

--On Friday, August 05, 2011 00:28 -0400 Eric Burger
<[email-masked]> wrote:

> True story: one lawyer tried to convinc a jury that an RFC is
> not a standard, because it is called a Request For Comments.
> To the lawyer, any rational individual would consider
> something called a Request For Comments to obviously be only a
> suggestion. RFC 2026 does not help with it's "RFC != standard"
> disclaimer. A rational person might interpret RFC 2026's, "Not
> every RFC is a standard" to at least imply that "some RFCs are
> standards," but a good lawyer can convince a jury that is not
> the case.

If the lawyer had wanted to lay it on further, she might have
noted that we used to publish documents listing "Internet
Official Protocol Standards" (RFC 3700 and predecessors and RFC
5000) but we stopped doing that, proving that nothing is a
standard any more.  On the other hand, the existence of that
document, either as part of the RFC Series, or possibly in its
current web page form, ought to be more than sufficient to
refute an argument that the listed documents are standards,
regardless of what the series is called.  

Of course, none of that would prevent a lawyer from arguing
that, for Internet purposes, the earth is at the center of the
universe and doesn't rotate if they thought it would be useful
to the case and convince a jury.

    john