John Klensin wrote: > 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. I agree that the proper forum for this discussion is with the officers and legal counsel of IETF and not this public list. I have previously written to Jorge Contreras about some of these points and am always pleased by his thoughtful private responses. My only reason for bringing it up again on-list is that people here are publicly discussing specific legal wording to fix 5378. But as a fundamental principle of property law, I don't believe in IETF asking anyone's permission, even respected IETF contributors, to create derivative works of works already in the public domain or any works that IETF already owns jointly. As John Klensin noted, 5378 and the proposed workaround "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." I can't agree to that. Can you? That's why I challenged Ted Hardie directly. Please don't take it personally or as flaming, but anyone who wants to assert a private ownership right in any copyright in any IETF RFC ought to do so now or forever hold your peace. Otherwise, I think it best that the IETF Trust exercise its rights under its joint copyright to do whatever is deemed appropriate and in the public interest, as determined by the IETF Trustees and its legal counsel, and not ask permission. /Larry > -----Original Message----- > From: John C Klensin [mailto:john-ietf@xxxxxxx] > Sent: Friday, January 09, 2009 1:33 PM > To: Ted Hardie; lrosen@xxxxxxxxxxxx; 'IETF Discussion' > Subject: RE: [Trustees] ANNOUNCEMENT: The IETF Trustees invite your > reviewand comments on a proposed Work-Around to the Pre-5378 Problem > > > > --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. > > > > > _______________________________________________ Ietf@xxxxxxxx https://www.ietf.org/mailman/listinfo/ietf