On Tue, 17 Feb 2009 18:42:17 -0500 (EST)
jnc@xxxxxxxxxxxxxxxxxxx (Noel Chiappa) wrote:
> > From: John Levine <johnl@xxxxxxxx>
>
> > We're looking forward to the draft
>
> I hope you're only partially ironic here. If there's no chance
> whatsoever of such a draft going anywhere, I'd hate to see people, in
> good faith, put in effort in creating one if it's 100.000% drop-dead
> guaranteed to be a waste of time.
>
I think the right advisory board would be a good idea, but I'm not
optimistic that we'd get one.
There's a line from Zelazny's "Lord of Light" that this reminds me of.
Approximately (I don't have the book handy) "he asked the storm. The
storm never lies... and it always says No!". A board composed solely
of, say, FSF afficiaonados would be useless, because the FSF's position
on patents isn't nuanced; I'd therefore have trouble believing that
their analyses were objective. ("Not objective" isn't a value judgment
or an assertion about the correctness of any particular analysis.)
A more important question is what the board should do. Analyze a
patent and its claims, and make statements about validity? Leaving out
the question of the value of such an activity, when a definitive answer
can only come from a court, doing such an analysis is difficult and
time-consuming. But I'm not even certain of the value of the answer --
certainly, the large corporations are not going to take this advisory
board's word for it; they'll do their own analysis, where the output of
the board would simply be more input. And their motives may be
different. Consider the case of three large companies, A, B, and C. A
asserts that their patent covers some protocol. B, which has a
cross-licensing agreement with A, wants it to be valid, because that
will keep C (which has no such agreement) and assorted start-ups out of
the market.
Infringement or non-infringement is a somewhat easier call, though the
answer there may depend on implementation choices.
Then, of course, there's the whole question of liability. Can the IETF
and/or ISOC afford the liability insurance for such a board?
Finally, where are we going to get the people? It's hard enough to get
sufficient security expertise, and there we don't even have to cross a
disciplinary boundary and bring in lawyers. Could we get enough
competent people who know enough about enough different protocols *and*
about patent law, and are willing to spend (presumably uncompensated)
time doing this? I have my doubts.
All that said, the above is my strawman that I've just torched. This
is why we need a draft -- until we have one, we won't know if it's a
plausible, useful idea or not. In fact, a metadraft -- one that simply
set out the questions that a concrete proposal should address -- would
be a worthwhile contribution in its own regard.
--Steve Bellovin, http://www.cs.columbia.edu/~smb
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