Dave,
--On Tuesday, 16 December, 2008 10:26 -0800 Dave CROCKER
<dhc2@xxxxxxxxxxxx> wrote:
> Indeed. But more importantly, this sub-thread naturally and
> inevitably reduces down to an infinite, entirely unproductive
> finger-pointing game.
For various reasons, I don't believe that game is infinite. I
believe that we all had the opportunity to identify these
problems during Last Call or earlier and that no one did a
careful enough review. That means that the finger points to
either everyone participating in the IETF or to the fundamental
process we use to review and approve this type of documents.
Neither is infinite, but it makes the exercise even more
non-productive.
> We have a reality that the new IPR rules are fundamentally
> problematic. Prior to their imposition, we had a functioning
> system. Now we don't.
>
> And the only thing that changed was imposition of the new
> rules. Nothing else happened.
>
> The proposals are mostly about adding another layer of 'fix'
> to what was supposed, itself, to be an incremental fix. The
> odds that we will get that additional layer wrong are
> demonstrably high.
And that is precisely why my I-D turns things into a choice
between new rules and old rules, based only on the conclusion of
the submitter about what is important... and why it does not
attempt to "fix" 5378. I agree with you about the odds of
getting an additional layer right, especially so if we try to do
it quickly.
> We should, instead, re-invoke the previous rules, until we
> figure out how to make the correct changes.
Yes, "just suspend 5378 until we get this sorted out and then,
if necessary, repeal it and start over" did occur to me. I
tried to suggest last week that the IAOC and Trustees figure out
a way to do just that, if necessary generating a pro-forma
appeal of something that would permit the IESG to take an
equivalent action. If I correctly understand the responses we
received, that wasn't believed to be possible. The Trustees
have advice of Counsel (who is also a co-author of 5378) and I
don't in that matter, so, if they concluded that they couldn't
figure out a way to defer 5378 and reinvoke the previous rules,
I think we need to accept that and move on.
Of course, we could generate an I-D whose only substantive text
was either
"move 5378 to historic and un-obsolete 3978 and 4749"
or
"suspend application of 5378 until some specified
condition happens".
I know how to write the first. I don't know how to write the
second, but maybe someone else does.
I took the path that my I-D specifies because I concluded that
we have gotten into a place in which re-invoking the old rules
is not possible. With the usual IANAL disclaimers, it appears
to me that we are in the following situation:
* Documents have been posted with RFC 5378 language.
* At least some of the Trustees believe, presumably on
advice of Counsel, that RFC 5378 has been in effect
since November 10, that everything done in the IETF
since November 10 is covered by it, including everything
that happened during IETF 73, and that 3978 became
obsolete and of no effect on that date. It appears that
all RFCs posted after that date carry the 5378 language.
While some of us have a bit of trouble with the logic on
which that belief is based, we know that legal logic is
sometimes different from normal logic and assume that
any controversy about 5378 effectiveness would not be
resolved until settled by a court. I can't speak for
others, but I don't want to go near that solution if it
can be avoided.
* Ignoring all of the non-IETF uses for the moment, RFC
5378 is not a linear descendant of 3978 and its
predecessors, but a change in direction from "authors
grant rights to the IETF and its participants" to
"authors grant rights to the IETF Trust, which then
grants rights back to IETF participants so we can do
work". If we suspend or repeal 5378 to re-invoke the
previous rules, it appears to me that any documents
covered by the 5378 rules fall into a strange
never-never land in which the IETF may have _no_ rights
to them at all. Remembering that set of documents
contains anything from several RFCs and I-Ds to all of
IETF history since before IETF 73, that is an
unattractive situation, to put it mildly.
* One could argue that everything published or
contributed between November 10 and now is still covered
by the (old) Note Well and hence that the old rules are
still in effect in parallel to the rules of 5378, i.e.,
that Contributors are making both the old grant direct
to IETF participants and the new grant to the IETF
Trust. That position would be a little inconsistent
with the assertion that 3978 become obsolete when 5378
was published and with the belief that everything done
since November 10 is strictly covered by 5378 but,
again, IANAL and someone who is might be able to figure
out a way to thread that particular needle.
What I'm pretty sure of, again subject to the usual disclaimers,
is that the draft-klensin-rfc5378rev skirts those problems,
leaving us in a position that the old rules can be used for
anything that contains old text if the author thinks that is
necessary but that leaves the new rules standing and
available.... at least until we can get all of this sorted out.
Perhaps a different way to say that is that I think our intent
is the same but that, if it is plausible that documents actually
exist to which the new rules apply and the old ones don't, the
mechanism for accomplishing it cannot be quite as simple as
"re-invoke the previous rules".
Looking up from the bottom of the rathole,... At least I hope
I'm at the bottom and don't have further to descend...
john
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