RE: Who owns the Internet Rules?

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

John Klensin wrote:
> I don't understand how you get from "until the IETF says it is"
> (an organizational decision) to "input from anyone ... who is
> part of the IETF process".  I'm "part of the Massachusetts
> process": I vote in state elections, I periodically express
> opinions in other ways, and I pay a lot of taxes.  But that
> doesn't imply that anything I do has Massachusetts approval to
> do it.

I understand your relationship to the State of Massachusetts, perhaps as a
lawyer even more than you do. :-) That has absolutely nothing to do with the
relationship between your copyright in a document you submit to the IETF
Trust and the IETF Trust's copyright in that same document (and expressly
claimed in a copyright notice, by the way!). That requires an interpretation
of federal copyright law which preempts Massachusetts law and deals with the
joint authorship of certain copyrightable works.

To get you to focus properly, let me ask you a direct question: Of all of
the documents you personally have contributed to in IETF, is there any RFC
in which you claim an exclusive copyright not jointly owned by the IETF
Trust?

If so, there is already an online procedure for filing such claims. 

I don't want us to fight over the IETF Trust's claim of joint ownership
unless you want to fight with me over some specific exclusive right you
claim instead. Courts and the IETF Trust ought not to worry about mere
hypothetical situations, especially since the IETF Trust has already claimed
its copyright interest via an express copyright notice and you haven't
objected.

> I suspect that there is a joint or collective work theory out
> there for IETF-stream documents.  

That is the theory I'm attempting to enunciate.

Best regards,

/Larry


Lawrence Rosen
Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242 * cell: 707-478-8932 * fax: 707-485-1243
Skype: LawrenceRosen




> -----Original Message-----
> From: John C Klensin [mailto:john-ietf at jck.com]
> Sent: Thursday, April 16, 2009 10:12 PM
> To: lrosen at rosenlaw.com
> Cc: 'Contreras, Jorge'; ipr-wg at ietf.org
> Subject: RE: Who owns the Internet Rules?
> 
> 
> 
> --On Thursday, April 16, 2009 12:36 -0700 Lawrence Rosen
> <lrosen at rosenlaw.com> wrote:
> 
> > John,
> >
> >> > Nothing is an RFC until the IETF says it is.
> >>
> >> Actually, even that is not true.
> >> See RFCs 4844 - 4846.
> >
> > Are you hinting that even my crazy relatives could publish an
> > RFC on April 1 and declare it an official document?
> 
> No April 1 RFC is "an official document", so, no, they could not
> do that.  On the other hand, if they submitted a satirical draft
> to the RFC Editor and the RFC Editor (who does not have any
> authority to say things on behalf of the IETF) finds it
> sufficiently amusing, it could be published as an RFC.
> 
> > No input
> > from anyone else who is a part of the IETF process?
> 
> I don't understand how you get from "until the IETF says it is"
> (an organizational decision) to "input from anyone ... who is
> part of the IETF process".  I'm "part of the Massachusetts
> process": I vote in state elections, I periodically express
> opinions in other ways, and I pay a lot of taxes.  But that
> doesn't imply that anything I do has Massachusetts approval to
> do it.
> 
> > Why are we here? [Oh yes, I see the reference in RFC 4846 to
> > "Satirical materials."]
> 
> Independent of "why we are here", the RFC Series predates the
> IETF (and the IETF Trust, etc.) and has always included a lot of
> documents that are not intended to be, or to be interpreted as,
> standards.
> 
> 
> > My *only* point in this thread was to point out that the
> > copyrights in RFCs are jointly own by the IETF Trust that
> > coordinates and on whose collective behalf the work is
> > created.
> 
> "... collective behalf the work is created" may have some legal
> meaning that I don't understand, but, taken in its common-sense
> meaning, no.  And the IETF Trust does not coordinate much of
> anything.  It is simply a structure for accumulating whatever
> rights come to it (and/or the IETF) as a consequence of the
> publication process ... much more a copyright aggregator than an
> author, at least as I understand those terms.
> 
> When I write a journal article that was not specifically
> solicited and paid for, that article usually ends up with a
> copyright notice on it that points to the publisher.  The
> article isn't written for the benefit of the publisher (at least
> in the plain English sense of those terms) but for some
> combination of my benefit and, I'd like to believe, the benefit
> of some professional audience.  In return for publishing and
> distributing it (and maybe some other services) the publisher
> insists on transfer of the copyright (modulo whatever rights I
> may get to reserve or get back).  And every time I have gone
> through that process, that copyright transfer occurs via a
> document and wet signature, not by some claim that, because the
> publisher made a decision to public and did some editing and
> printing (which is more than the IETF Trust does), the document
> becomes a joint work with the publisher as co-author.
> 
> I suspect that there is a joint or collective work theory out
> there for IETF-stream documents.  But I don't think you are
> going to find it by assuming that all of the streams are the
> same, that all RFCs are the same, that all RFCs are standards
> whether the IETF thinks so or not, and so on.
> 
> > That is why all three RFCs 4844-4846 contain the
> > following copyright notice:
> >
> >      Copyright (C) The IETF Trust (2007).
> >
> > This is how RFC 4844 itself summarizes our joint effort: "This
> > document describes the framework for an RFC Series and an RFC
> > Editor function that incorporate the principles of organized
> > community involvement and accountability that has become
> > necessary as the Internet technical community has grown,
> > thereby enabling the RFC Series to continue to fulfill its
> > mandate."
> >
> > And RFC 4846 says this: "In all cases, the ultimate decision
> > to publish or not publish, and with what text, rests with the
> > RFC Editor."
> 
> And the RFC Editor isn't the IETF.  Regardless of how many times
> you assert the following, it won't make that so.  And 4844 is
> fairly clear about that and 4846 is even more so.
> 
>     john