--On Friday, January 09, 2009 11:42 -0800 Ted Hardie
<hardie@xxxxxxxxxxxx> wrote:
>...
> My reading of John's point is that this creates either a
> coordination burden or a legal risk for the authors re-using
> text created prior to the new rules. He doesn't want to bear
> that burden/risk, and I don't think the Trust can (because it
> would have to analyze each document prior to assuming it, as
> it would be otherwise trivial for someone to submit a draft
> that clearly had no permission from the copyright holders).
>
> He wants an out that says "I'm granting these rights to
> my text, you worry about any other rights". As a transition
> to text based on documents written within the new rules,
> that may be the way to go. What none of us wants is to
> have to restart this conversation at ground zero, because a lot
> of the other rights (like re-using code) set out in the new
> document should be applying to new work in new drafts now.
Exactly.
And note that makes a clear and plausible transition model:
(1) Pre-5378 documents exist under pre-5378 rules, so
any potential user for non-traditional purposes needs to
either figure out who the relevant authors are and get
their permission or decide the risk isn't worth worrying
about. If some of those authors/ contributors make
explicit transfers to the Trust, that is great, but none
of them have to take responsibility for identifying all
of the others.
(3) Post-5378 new documents are posted according to 5378
rules, with no exceptions.
(2) Post-5378 documents that incorporate pre-5378
materials must used 5378 rules for any material that is
new. For the earlier materials, and for sorting out
which is which, the burden falls on the potential user
for non-traditional purposes to either figure out who
the relevant authors are and get their permission,
determine that all relevant authors have already given
permission, or assume the risks. No one else --neither
the author(s)/ editor(s) of the new document nor the
Trust-- is required to take responsibility for pre-5378
contributors or contributions. Even an editor of the
new document that worked on the old material is not
required to make assertions about new rights on behalf
of his or her former employer.
This doesn't weaken the core grant of rights in 5378 in any
fundamental way. If we are being realistic, it doesn't get us
to the point 5378 wants to get us to any more slowly. It makes
one fundamental change: the responsibility and liability for
sorting out the IPR status of materials created and contributed
prior to the 5378 shifts from the author of a post-5378 document
to the person who wants to copy material out of that document in
excess of 2026 / 3978/ 4748 rules.
That does not increase the burdens on that person at all
relative to the burdens he or she inevitably has with pre-5378
documents that are not being revised. It does not increase the
risks to the Trust at all. It does let people trying to do
technical work in the IETF do that work without signing up for
legal determinations, work, or risks that do not involve the
earlier work of others, and it is that sign-up requirement that
is the problem with 5378.
Now, what I recommend is that we try to see if we can agree that
the three-stage description above is what we intend. If we can
agree, then the _next_ step is figuring out how to get there in
the minimum period of time.
My problem with the Trust's latest proposed policy is that we've
got extensive evidence --including the consensus decision that
got us into the mess-- that the IETF is not good at evaluating
legal documents and theories and their possible consequences and
side-effects. I don't believe that the right way to solve that
problem is to hand the IETF yet another legal document, with
some language and a theory in it that seems subtle, and ask us
to evaluate it.
I believe that the IETF should accept a clearly-stated set of
principles and that the Trust should then come back and say "on
the advice of Counsel, the following text implements that
principle". If lawyers then want to argue about whether the
text is optimal to implement those principles, that is fine with
me, as long as the argument is limited to the relationship
between principles and text and not an attempt to change
principles. Remember that the Trustees do have insurance
against getting that sort of thing wrong; the rest of us are not
insured against either getting those things wrong or against the
Trust doing so.
Now, if the Trust will reassure us, on that same basis, that the
new proposal gets us closer to those principles without creating
an additional mess that will need to be sorted out in the
future, then I'm in favor of the text. If the Trust is really
saying, as the announcement appears to do "here is this new
strategy and some proposed legal language to implement it,
please review it and sign off on its being the correct _legal_
solution", then I'm opposed to doing that and am tempted to
repeat the old saw about doing the same thing multiple times and
expecting a different outcome as well as the observation that we
keep making our IPR rules more and more complex with patches and
workarounds and that it is not a good way to move forward.
If we can reach consensus on the principles about (or something
like them), then I think there are all sorts of ways to move
forward. Some of them start with the observation that, if the
community also agrees that 5378 does represent a consensus about
principles of IPR but that the implementation of the transition
policy was botched, then a two-week Last Call on something that
narrowly un-botches it (or that gives the Trustees the authority
to do what they propose to do if anyone still thinks that
necessary (see Note 1, below) should be in order -- the intent
of the requirement for longer Last Calls is to be sure that the
community has an opportunity to review the document and issues
and the community has definitely had that opportunity to review
this one via these discussions, the previous Last Call, etc.
john
Note 1: In December, a few of the Trustees and one or two IESG
members, seemed to be taking the position that the Trustees did
not have the authority to do exactly the sort of thing they are
now proposing to do but that they were stuck with a literal and
narrow interpretation of 5378 until and unless a replacement
came along in the community, was reviewed by a WG, and came
through the conventional consensus process. I thought that
interpretation was wrong then and is wrong now, but I'm not a
Trustee or an AD. Something has obviously changed and, before
the community reviews this proposal and takes responsibility for
it, I'd like to hear, either from the people who took the
earlier position, from Counsel, or from the Trustees as a group
what it is. Otherwise, we (and not the Trustees) run the risk
that this disclaimer is trash because only the text of 5378
counts.
Note 2: Larry, I'm not competent to debate your "joint
authorship" theory and hope that no one else, at least no one
who is not an attorney admitted to practice in some relevant
jurisdiction, will engage you on it. However, it appears to me
as a non-lawyer that, if you are correct, we should be blowing
away 5378 and all of its language and concentrating on 5377
(which no one has attacked since the WG concluded). If the
theory is correct, then 5378 complicates things because it can
easily be read as an attempt to establish principles of separate
authorship in the IETF case and get everyone to agree to those
principles, even if only as a between-contributors agreement.
And one should not wish for those complications.
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