RE: IPR Questions Raised by Sam Hartman at the IETF 73 Plenary

["Lawrence Rosen" <lrosen at rosenlaw.com>]

Reply below. /Larry

> -----Original Message-----
> From: John C Klensin [mailto:john-ietf at jck.com]
> Sent: Wednesday, December 17, 2008 7:02 PM
> To: lrosen at rosenlaw.com; 'IETF discussion list'
> Subject: RE: IPR Questions Raised by Sam Hartman at the IETF 73 Plenary
> 
> 
> 
> --On Wednesday, 17 December, 2008 16:56 -0800 Lawrence Rosen
> <lrosen at rosenlaw.com> wrote:
> 
> > Dave Crocker wrote:
> >> That was the culture. Law often
> >> follows culture, since culture creates established practice.
> >
> > I hope you're right.
> >
> > May I ask: Is there anyone on this list who is asserting a
> > current copyright interest in any IETF RFC--on your own behalfFrom ietf-bounces at ietf.org  Wed Dec 17 20:31:00 2008
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From: "Lawrence Rosen" <lrosen at rosenlaw.com>
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Subject: RE: IPR Questions Raised by Sam Hartman at the IETF 73 Plenary
Date: Wed, 17 Dec 2008 20:29:52 -0800
Organization: Rosenlaw & Einschlag
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Reply below. /Larry

> -----Original Message-----
> From: John C Klensin [mailto:john-ietf at jck.com]
> Sent: Wednesday, December 17, 2008 7:02 PM
> To: lrosen at rosenlaw.com; 'IETF discussion list'
> Subject: RE: IPR Questions Raised by Sam Hartman at the IETF 73 Plenary
> 
> 
> 
> --On Wednesday, 17 December, 2008 16:56 -0800 Lawrence Rosen
> <lrosen at rosenlaw.com> wrote:
> 
> > Dave Crocker wrote:
> >> That was the culture. Law often
> >> follows culture, since culture creates established practice.
> >
> > I hope you're right.
> >
> > May I ask: Is there anyone on this list who is asserting a
> > current copyright interest in any IETF RFC--on your own behalf
> > or 
> > or on behalf of your company--that would encumber the freedom
> > of any IETF participants to copy, create derivative works, and
> > distribute that RFC in accordance with IETF culture?
> >...
> 
> Larry,
> 
> So that we don't get assertions about either universal negatives
> or about people who are assumed to give up the right to claim
> copyright interest as a consequence of not answering your
> question,...

[LR:] Universal negatives? I remember at least one email here yesterday or
today where someone cavalierly stated that he claimed a copyright in an
unnamed IETF spec. I wanted to flesh that claim out. Perhaps that person
will have the courage to speak up precisely.

That's the problem around here. People worry to death about IP claims that
nobody is willing to actually make. People develop IP policies that solve
nonexistent problems (such as the "code" vs. "text" debate) and, by doing
so, add further confusion, evidenced by this current problem. 

I refuse to be cowed by ambiguous claims of IP, particularly copyrights that
seek to inhibit the development of *functional* industry standards. It is
even worse than ambiguously claiming that "there might be patented
technology here" but then refusing to identify or license it, because
copyright lasts for 100 years, not just 20. I can outwait the patent IP
claims, but technology will be hostage for my entire lifetime to the
copyrights. That can't be justified.

 
> Your question does not distinguish between uses by IETF
> participants for IETF-related purposes (e.g., standards
> development) and uses by people who participate in the IETF for
> purposes not directly related to IETF work (e.g., insertion into
> programs or their documentation whether conforming to those
> standards or not).  Was the failure to make that distinction
> intentional?

[LR:] Yes. Both are absolutely essential for implementation of open
standards.


> If it was intentional, is your question intended as a back-door
> way to reopen the questions about whether the IETF intends
> unlimited use of its material, with or without acknowledgements
> and citation and regardless of purpose, that the IPR WG resolved
> in the negative?

[LR:] Yes, since the front door has been closed. My question is definitely:
Is anyone retaining a copyright in such functional materials with the intent
to prevent unlimited use by *anyone*? Please don't assert that this need be
"without acknowledgements and citation." I've never said that. As for
"regardless of purpose," as long as the purpose is to obtain a specific
standard functionality and thus the words are not subject to copyright, try
and stop me, regardless of what the IPR WG says.


> Finally, when you ask this question, are you asking as an
> individual participant in the IETF process or as an attorney who
> might be called upon to advise one or more clients on the
> subject of dealing with the IETF and/or IETF-related IPR?  If
> the latter, would you mind identifying those clients and any
> other interest you might have in the answers other than idle
> curiousity?

[LR:] I am asking as an attorney and IETF participant (we're all individuals
here, I've been told, with individual opinions) who is anxious to understand
why so many people on here are worried about copyright infringement and are
seeking to protect copyrights they don't even have the honesty to claim
outright. I care about IETF specifications in this email thread, not about
any specific clients. As to whether I might represent one or more clients on
this issue, my lips are sealed.


>    thanks,
>     john
> 
> p.s. Even if it were clearly true at one time, which some would
> dispute, Dave's assertion about the present IETF culture is
> controversial given, at least, the IETF's history and positions
> about IPR and copyright over the last decade or more.

[LR:] So if the "culture" is controversial, and the "process" we've
inadequately developed is controversial, perhaps we should actually consider
the law. Which is what I'm trying to do. Unfortunately what people are doing
here is speculating abouton behalf of your company--that would encumber the freedom
> > of any IETF participants to copy, create derivative works, and
> > distribute that RFC in accordance with IETF culture?
> >...
> 
> Larry,
> 
> So that we don't get assertions about either universal negatives
> or about people who are assumed to give up the right to claim
> copyright interest as a consequence of not answering your
> question,...

[LR:] Universal negatives? I remember at least one email here yesterday or
today where someone cavalierly stated that he claimed a copyright in an
unnamed IETF spec. I wanted to flesh that claim out. Perhaps that person
will have the courage to speak up precisely.

That's the problem around here. People worry to death about IP claims that
nobody is willing to actually make. People develop IP policies that solve
nonexistent problems (such as the "code" vs. "text" debate) and, by doing
so, add further confusion, evidenced by this current problem. 

I refuse to be cowed by ambiguous claims of IP, particularly copyrights that
seek to inhibit the development of *functional* industry standards. It is
even worse than ambiguously claiming that "there might be patented
technology here" but then refusing to identify or license it, because
copyright lasts for 100 years, not just 20. I can outwait the patent IP
claims, but technology will be hostage for my entire lifetime to the
copyrights. That can't be justified.

 
> Your question does not distinguish between uses by IETF
> participants for IETF-related purposes (e.g., standards
> development) and uses by people who participate in the IETF for
> purposes not directly related to IETF work (e.g., insertion into
> programs or their documentation whether conforming to those
> standards or not).  Was the failure to make that distinction
> intentional?

[LR:] Yes. Both are absolutely essential for implementation of open
standards.


> If it was intentional, is your question intended as a back-door
> way to reopen the questions about whether the IETF intends
> unlimited use of its material, with or without acknowledgements
> and citation and regardless of purpose, that the IPR WG resolved
> in the negative?

[LR:] Yes, since the front door has been closed. My question is definitely:
Is anyone retaining a copyright in such functional materials with the intent
to prevent unlimited use by *anyone*? Please don't assert that this need be
"without acknowledgements and citation." I've never said that. As for
"regardless of purpose," as long as the purpose is to obtain a specific
standard functionality and thus the words are not subject to copyright, try
and stop me, regardless of what the IPR WG says.


> Finally, when you ask this question, are you asking as an
> individual participant in the IETF process or as an attorney who
> might be called upon to advise one or more clients on the
> subject of dealing with the IETF and/or IETF-related IPR?  If
> the latter, would you mind identifying those clients and any
> other interest you might have in the answers other than idle
> curiousity?

[LR:] I am asking as an attorney and IETF participant (we're all individuals
here, I've been told, with individual opinions) who is anxious to understand
why so many people on here are worried about copyright infringement and are
seeking to protect copyrights they don't even have the honesty to claim
outright. I care about IETF specifications in this email thread, not about
any specific clients. As to whether I might represent one or more clients on
this issue, my lips are sealed.


>    thanks,
>     john
> 
> p.s. Even if it were clearly true at one time, which some would
> dispute, Dave's assertion about the present IETF culture is
> controversial given, at least, the IETF's history and positions
> about IPR and copyright over the last decade or more.

[LR:] So if the "culture" is controversial, and the "process" we've
inadequately developed is controversial, perhaps we should actually consider
the law. Which is what I'm trying to do. Unfortunately what people are doing
here is speculating about hypothetical situations and refusing to declare
their real interests in promoting restricted copyright licenses for
functional specifications.




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 hypothetical situations and refusing to declare
their real interests in promoting restricted copyright licenses for
functional specifications.




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