RE: A priori IPR choices

["Philippe Verdy" <verdy_p@xxxxxxxxxx>]

The FSF campaigns against the current IETF policy and the current policy used in several standard bodies (notably ISO) who currently accept standards encumbered with patents, only if they are licensed to everyone who ask for it, under “reasonable” or “fair” licensing practices. However the acceptable licenses are not precisely defined (at ISO, patent licensing royalties are still acceptable), and notably this does not restrict the licensors from requiring a nominative agreement with each licensee. Such standards do exist in ISO (notably most MPEG related applications are covered by such restrictive licenses).

 

However, the FSF recognizes that, until now, the IETF was more strict about the licensing conditions, rejecting proposals that included royalties-maker licenses and explicit personal agreement between the licensor and the licensees (under this scheme, if it was accepted, nothing would prevent a licensor to start charging yearly royalties to each licensor for exercising the patented rights.

 

But, the IETF is less strict about RFCs that are published with “informational” status. We do have lots of informational RFCs which are still needed and actively used, sometimes even required (notably those in the BCP series, like the “Netiquette” which has become a requirement for almost all ISP customers, as part of their contract, despite they are only informational, and could change at any time after having been replaced by another RFC replacing the older one with the same BCP number.

 

I do approve the FSF campaign: if the IETF publishes a RFC, and even if it’s just informational and still not a “BCP” recommendation, those RFCs should really be patent free, or exempt from non-free patents requiring an explicit license. We have already seen in the past the case where a licensor changed its policy, and started to claim royaltees for what was initially granted for free and licensed to any one without charge. We can accept the existence of patents only as a way to prevent another counter-patent to be reserved by someone else (but in a free world, such patent is normally not needed, as the copyright assignment and its legal protection is enough to avoid this).

 

However, the WIPO is currently changing the game, trying to merge the two systems of copyrights and patents into a single one with equal force, forcing those that just want a protection of their copyright to register it at some national or international registry to maintain the protection. This is a dangerous evolution, because it would harm all legitimate authors that have produced valuable works, and assigned a their copyright on these works, to protect it from claims by others: they would now have to pay each year some fee to a registry to maintain the protection on their own work; if they just forget to do that, someone else (richer than the authors) will apply for a patent registration and will pay indefinitely the registry to gain and enforce the legal protection.

 

For this reason, we should only accept patents that are protected with the following minimum bases:

• Licensed to anyone without condition, and in every country (within the limitations of the national laws applicable to the licensors, such as export/import controls, but at the time of proposal or publication of the standard, such legal restrictions should not exist, and the IETF should invite all governments to rapidly express their reservations against legal restrictions in their area, by submitting also a copy to ISO members where worldwide governments are represented).
• (If legal restrictions exists and are known to the IETF or to the standard proposer, they MUST signal them, so that every licencee car verify if the standard is usable for their intended application).
• Licensed only in a non-exclusive way (no licensee can claim ownership or reservation within some domains of application or exercise of the patent, or reservation in any place, against other competing licensees): all licensees being treated equally, whatever the time when they first got their license.
• Does not require an explicit agreement between each licensor and licensee.
• Grants usage and distribution rights to anyone, acting then as a legal sublicensor: the sublicensor must not forbid the exercise of the distribution right by its own licensees.
• Being granted without limitation of time, including the distribution right (so that new licensees can always come and apply the same terms).
• Offers a warranty (signed by the patent owner) to licensors that the patent does not violate any other patent or copyright or author’s rights.
• Making this warranty permanent too, and without requesting any charge to pay by the licensees and distributors (including the IETF).
• Offer a signed warranty of indemnification of licensees and of the IETF if the patent licensor has violated these rights.
• Stating contractually that no further charges will be requested to all licensees in the future by the patent owner.

With all these conditions, patents are in fact not needed. We much prefer the system of copyrights which is much simpler to protect open and free technologies.

 

If needed, all RFCs published by the IETF should first pass a long enough transitory period where the RFC is published but with strong notice that it is not approved, so that the only rile of the publication is to verify that the RFC does not violate any rights. After this time has elapsed (2-3 years after first publication?) during which the other patent owners have had the possibility to exercise their rights, the RFC could be only be in an informational state, becoming a recommendation later.

• The IETF should also make some efforts to propose alternatives to every published standard, so that at least one replacement technology is also published with the same status, allowing applications to implement several of them, and possibly turning down rapidly, with less efforts, any technology for which a patent becomes applicable. The BCP standard track should list the alternative technologies, and not promote only one.
• In addition all standard should support optional additions and a framework for making these options interoperable with other implementations of the standard that don’t have this option. This will ease the replacement of one technology by another if there is any problem with a technologies that was informally considered ”the best” one (but appears to be now encumbered by costly patent claims). In fact this should be the role of standards: not promoting a single technology, but providing this free framework for interoperability. The “requirements” in a standard should be only about interoperability, not about an exclusive implementation solution.
• So supporting the extensibility should be a requirement for conformance. If a “standard” does not support extensibility, it should be deprecated or another newer standard should be created rapidly as an accepted alternative, within which the currently deprecated standard would just become a particular implementation.

 

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De : Lawrence Rosen [mailto:lrosen@xxxxxxxxxxxx]
Envoyé : mercredi 24 octobre 2007 04:51
À : ietf@xxxxxxxx
Cc : license-discuss@xxxxxxxxxxxxxx
Objet : Re: A priori IPR choices

 

To: IETF list

 

These are statements from FSF about the issue we've been discussing at ietf@xxxxxxxx.

 

http://www.fsf.org/campaigns/software-patents/draft-housley-tls-authz-extns.html

 

and

 

http://www.fsf.org/news/oppose-tls-authz-standard.html

 

The GPL does not have problems with most IETF specifications, only those that are encumbered by non-free patents. This is an important example of why so many of us in the open source and free software communities believe that the IETF patent policy must be improved.

 

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