Re: [Trustees] ANNOUNCEMENT: The IETF Trustees invite your review and comments on a proposed Work-Around to the Pre-5378 Problem

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--On Wednesday, January 21, 2009 7:39 -0500 Marshall Eubanks
<tme@xxxxxxxxxxxxxxxxx> wrote:

> On Jan 21, 2009, at 2:58 AM, Dean Willis wrote:
>...
  
>> Given that we've historically weeded out the contributor-list
>> on a   document to "four or less", even if there were really
>> dozens of   "contributors" at the alleged insistence of the
>> RFC Editor, I don't   see how any older document or even a
>> majority of new documents-in-  progress could be adapted to
>> the new rules.
>> 
>> This appears to require complete abandonment of all previous
>> works   and "clean room" rewrites under the new terms.
> 
> Even in this worse case scenario (which clearly won't be true
> in all cases), I think that that is only true for documents
> that need to be licensed outside of the IETF process.

But there is no way to know whether a particular document will
be licensed outside of the IETF process at the point the RFC
enters the publication queue, much less when the first I-D that
will (or might) lead to such a submission is posted.  

My recollection (which could easily be wrong) is that it was
precisely that lack of foreknowledge that drove the WG to adopt
the 5378 plan: if one wants the Trust to be able to license
documents for use outside the IETF, and to do so well after
those documents are posted as I-Ds or published as RFCs, then
the Trust has to acquire the needed rights when the
Contributions are made.  If they have to wait until they need
those rights to issue licenses, they have to take responsibility
for tracking down anyone who might be a Contributor (known or
unknown, dead or alive, etc.) or they have to license whatever
they have, leaving responsibility for getting permission from
anyone the Trust hasn't identified and tracked down  to the
person or group who want to use things outside the IETF.

If one takes the definition of "Contribution" and "Contributor"
used in 5378 (and 3978, etc.) -- as distinct from the RFC
Editor's definition -- seriously, then the first posting of an
I-D could contain text contributed to a mailing list months
earlier.   The length of time between first relevant
Contribution and the publication date of an RFC can be very
long, certainly measured in years in some cases.   That implies
that there will be a very long time before we can assume that
every Contribution in a document pending publication occurred
since 10 November (or whenever 5378 can be legally assumed to be
effective).

It is clearly outside the authority of the Trust to undo that
"everyone transfers rights at submission time" 5378 model, even
if it can effectively be made non-retroactive (which the
work-around appears intended to do).  If we decide, in
retrospect, that we don't like it, either someone needs to post
an I-D that is much more radical than the three posted so far or
we need to spin up a WG.  I suspect, given other conversations,
that the IESG will insist on a WG unless there is overwhelming
consensus for a particular I-D and I believe there is no
possibility for overwhelming consensus for anything in this area.

While each approach involves many details to be sorted out
(including whether there are differences between I-Ds and RFCs,
which some of us consider an important question), I think we
might adopt any of three models for the long term, any of which
would require WG action.  There may of course be others but, as
general categories, they just don't occur to me right now.  The
three options are deliberately stated in non-lawyer language and
legal theories on which they might be based are not discussed.
In no particular order:

(1) Abandon the entire 5377 "the Trust gets to grant particular
licenses" model and use a "once something is Contributed to the
IETF, it is available for use by anyone, for any purpose,
including excerpting, modification, and inclusion in for-profit
publications" model.  Of course, that still leaves a legacy
problem of what to do about pre-5378bis Contributions;
presumably that would have to fall on those intending to use the
material.

(2) Discard 5378 and most of 5377.  Go back to 3978 as a
starting point, modify it to make special provisions for "code"
and to make clear that, from a permissions standpoint, any
IESG-authorized handoff of a specification to an IETF-recognized
standards body is an extended part of the IETF standards process
and covered by the same rules.   Any _other_ non-IETF use would
require those intending to use the material to sort things out
(or to decide that they don't need to), just as has been the
case for decades.  That is potentially burdensome for those who
want to include large chunks of RFCs in program documentation
(inline or separate) or manuals, but, even if we change the
rules to something 5377/5378-like, they still have to deal with
older documents unless the Trust is able to guarantee that it
has rights to _all_ Contributions that may have made up the
document.  I continue to believe that IETF handoff of
maintenance and responsibility for a spec to another SDO is
"part of the IETF standards process" and hence that this could
be a clarification that would apply to pre-3978ter
contributions, but IANAL and all of the other usual disclaimers.

(3) Keep 5378 but remove all obligations for author/submitters
to obtain consent from anyone else or guarantee that all rights
have been obtained.  That would take us all the way down the
path that the workaround (and both my I-D and Brian's) starts us
down: 5378 could not be assumed to be fully effective for all
new documents for a couple of years and would never be fully
effective for documents that are revisions of most older ones
(where "older ones" are documents containing 5378 material,
including descending from I-Ds posted before 10 November).
Consequently, the Trust would have trouble granting any licenses
under 5377 that were not full of qualifications about rights the
Trust might not have and be able to transfer.

  --john





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