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Re: ISSUE: incoming 5.1, 5.3: requires participation of organizations


----- Original Message ----- From: "Harald Alvestrand" <harald at alvestrand.no>
To: "Simon Josefsson" <simon at josefsson.org>
Cc: "Frank Ellermann" <hmdmhdfmhdjmzdtjmzdtzktdkztdjz at gmail.com>; <ipr-wg at ietf.org>
Sent: Friday, December 14, 2007 7:03 AM
Subject: Re: ISSUE: incoming 5.1,5.3: requires participation of organizations


Simon Josefsson wrote: 
"Frank Ellermann" <nobody at xyzzy.claranet.de> writes:


Brian E Carpenter wrote:


The IETF works with individual contributors, full stop.

Good, maybe the BCP 78 legalese about some contributors "representing an organization" can be removed or trimmed
or clarified.


I share this concern, and this messages uses the ISSUE-protocol to
register this as a last call comment (the WGLC lasts until Dec 17 if I'm
not mistaken).

The most critical text appears to be in section 5.3:

   To the extent that a Contribution or any portion thereof is protected
   by copyright or other rights of authorship, the Contributor, and each
   named co-Contributor, and the organization he or she represents or is
                         ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
   sponsored by (if any) grant a perpetual, irrevocable, non-exclusive,
   ^^^^^^^^^^^^^^^^^^^^^
   royalty-free, world-wide sublicensable right and license to the IETF
   Trust under all such copyrights and other rights in the Contribution:

This text appear to me to ask that a Contributor's organization (if any)
directly grant rights to the IETF.

It is not asking that the organization makes a statement. It is asking that the contributor makes the statement (and that it's implicit in the contribution).

Meaning if the individual DOESNT have that enduring power of attorney, that they commit a "criminal act of fraud by wire" which the IETF becomes a co-particpant in since it refuses to put in place a license which would allow it to react to a fraudulently filed IP by removing it from use and publication.


This can happen by the organization saying

No Harald it doesnt... Saying "Anything" is insufficient. IP cannot be transfered nor can an enduring power of attorney be demonstrated by someone saying "Hay I have it". In all instances to assert Poweer of Attorney a specific declaration and in many instances something from the Sponsor would be needed to assure the IETF of that.

to the contributor "we don't care, we won't claim rights in what you are doing in this context", or by the organization saying to the contribution "you can give away this license on behalf of us". It's the contributor that makes the commitment to the IETF.

The Contributor cannot assign rights it doesnt have no matter how many times you try and say that they can. The fact you insist that they do in the submission process DOES NOT ABSOLVE THE IETF FROM ITS REPSONSIBILITY under US Laws to put in place a competent IP Transfer Process.

If Brian is correct and the IETF do not work with organizations
directly, but only individual contributors, the legal text that requires
organizations to grant rights to the IETF appears wrong to me.

It's fair warning to the contributor - if he doesn't hold all rights himself, he has to be in the clear with his sponsoring organization.

So what does the IETF do when this turns out to not be true? Negotiate a settlement under the threat that if no settlement is forthcoming that the parties will be forced out of the IETF? - this is an invitation to litigation and possibly jail time for some of the IETF's management for Antitrust and Conspiracry. Hell the RICO provisions alone could break the ISOC's bank if there was a properly handled Class Action matter against the IETF.

Section 5.1 also contains:

   By submission of a Contribution, each person actually submitting the
   Contribution, and each named co-Contributor, is deemed to have read
   and understood the rules and requirements set forth in this document.

Which I think also means that "ALL of those requirements need to be disclosed in 5.1 as well" i.e. a listing of each of the key sections of each document relevant to the submission contract itself.

   Each Contributor is deemed, by the act of submitting a Contribution,
   to enter into a legally-binding agreement to comply with the terms
   and conditions set forth in this document, on his or her own behalf
   and on behalf of the organization the Contributor represents or is
       ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
   sponsored by (if any), when submitting the Contribution.

Let me ask how many Legal Departments in the Sponsor's have reviewed their liability under BCP78 and BCP79? The answer is ZERO I am betting. So ANY submissions by anyone who has not formally had their IP Law Department review the IETF's participation requirements regularly (as in with each revision) would be fraudulently misreprenting that they had an informed consent from their sponsors to represent their IP interests in the IETF.

   ^^^^^^^^^^^^^^^^^^^^^

My suggestion solution is to rephrase the text to say that Contributors
assure that they have the permission of the organization they represent
to share the contribution with the IETF.

>This would be consistent with
only working with individuals rather than external organizations. 
That is what I believe the text is saying now.


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