On 25 Apr 2016, at 16:31, Stephan Wenger wrote:
On 4/25/16, 13:15, "ietf on behalf of Jari Arkko"
<ietf-bounces@xxxxxxxx on behalf of jari.arkko@xxxxxxxxx> wrote:
- Section 5.5(C): Two things:
[...]
OLD
must ensure that such
commitments are binding on any subsequent transferee of the
relevant IPR.
NEW
must ensure that such commitments are binding on a transferee
of
the relevant IPR, and that such transferee will use reasonable
efforts to ensure that such commitments are binding on a
subsequent transferee of the relevant IPR, and so on.
END
The object of the "subsequent" wasn't clear, so this just spells it
out. Wordy, but more precise.
Right
I’m not sure I agree that the object of “subsequent wasn’t clear
from context. However, I don’t mind to see that fixed if others
feel so. However, the fix as proposed sets a very low standard
(reasonable efforts) for ensuring that subsequent transferees are
bound. That a substantial change from the WG consensus, and IMO in the
wrong direction.
Let's be clear that there was no "WG consensus" on this, since there was
no WG. But let's assume that the consensus of the BoF was for something
strong.
I disagree that "use reasonable efforts to ensure" is such a low
standard, and the stronger language you propose concerns me:
What we want to achieve is that if A assigns a patent to B, B and all
further transferees (B to C, C to D, etc. etc.) are similarly bound.
We want to make sure if any of these entities doesn’t feel bound for
whatever reason, the patent is held unenforcible by a well-informed
court. It’s clear that this is much more onerous to the
rightholder, and may well lower the value of the IPR.
I would be fine if the NEW part would be reworded as follows:
NEW
must ensure that such commitments are binding on a transferee of
the relevant IPR, and also binding on any subsequent transferees
of the relevant IPR.
END
This seems to require that if my IPR is transferred 20 times over 20
years, I am on the hook in perpetuity to absolutely make sure that the
next person down the line sticks to the agreement. I'm certainly willing
to make *reasonable* efforts to do so, and it will be up to a court to
determine if my efforts were reasonable, but I certainly don't want to
be forced to completely indemnify to 21st person down the line. "Use
reasonable efforts to ensure" seems reasonable. Otherwise, it's not
clear to me what I'm signing up to.
- Section 7, paragraph 6:
The only change in this paragraph from 3979 was to add the word
"all" in the second-to-last sentence. My lawyer friends tell me that
this little change is opening a can of worms, having to do with
licensing to makers of parts instead of implementers of the whole
specification. I don't think we meant to change the meaning from the
3979 meaning, and I certainly don't think that we meant to change
some implication about whether folks in general needed to license to
people that make parts where they wouldn't have before. Was there
something unclear about that sentence that needed the word "all"
added to it? We aren't making a substantive change, are we? Can we
just strike it? It seemed pretty clear to me before.
Agree
I’m not sure here.
For context, the paragraph is in section 7 of RFC3979bis (which used
to be the second paragraph of section 8 of RFC3979). The sentence in
question describes an purported IETF consensus established in
pre-RFC3979 times, as follows (the critical and new “ALL” is
capitalized):
“
An IETF consensus has developed that no mandatory-to-implement
security technology can be specified in an IETF specification unless
it has no known IPR claims against it or a royalty-free license is
available to ALL implementers of the specification unless there is a
very good reason to do so.
“
Right, the only change between 3979 and the above is the addition of the
word "ALL" (not in all caps in 3979bis).
I agree that the tightened language removes an arguably unclear
loophole that has been present in RFC3979, and which Pete’s
lawyer-friends probably would like to preserve. However, generally
speaking, removing loopholes like this is a Good Thing, unless the
consensus at the time was such that there ought to be a loophole. I
did not follow the consensus process in sufficient detail to have an
opinion, but perhaps security and IPR conscious folks in the IETF
remember?
Wait, what "arguably unclear loophole" do you think was there that
adding "all" in the above sentence tightens? Calling it a "loophole"
implies that somehow the IETF intention was to disallow something that
the current text allows. What is that something that you think we ought
to be removing?
I know that my lawyer friend was concerned not about security technology
per se, but the issue of licensing levels more generally. I'm pretty
sure we only wanted to talk about requiring royalty-free licensing for
security protocols specifically and never intended to require particular
kinds of licensing across the board. Either way, I think that the
original text was perfectly clear and had no loopholes.
So, why are we adding "all"? What loophole are we trying to close? If
there is none, let's strike "all" and use the original text.
pr
--
Pete Resnick <http://www.qualcomm.com/~presnick/>
Qualcomm Technologies, Inc. - +1 (858)651-4478