Re: [Fwd: I-D Action:draft-carpenter-5378-old-text-02.txt]

[John C Klensin <john-ietf at jck.com>]

--On Tuesday, May 12, 2009 09:29 +1200 Brian E Carpenter
<brian.e.carpenter at gmail.com> wrote:

> This version of the draft describes a completely modified
> procedure compared to the one presented at IETF74, which did
> not obtain consensus. It contains small and large changes
> throughout.
> 
> Discussion is invited on the ipr-wg at ietf.org list.

Brian,

My reading of the rough consensus during and after IETF 74 was
not "no consensus for draft-carpenter-5378-old-text-01.txt,
please try again".  It was "accept the 'interim' Trust
disclaimer as permanent, without further attempting to tune
details, and stop" -- with the "decide we are done and stop"
part being important.

In addition, if Larry Rosen's theory is correct, this entire
discussion is immaterial.   To the best of my knowledge, we have
received no advice or instructions from the Trust or its Counsel
on that subject.  But, were advice to appear that we can call
rely on Larry's theory, we would also be finished and your draft
would be irrelevant at best and a serious distraction at worst.

It is possible that, despite that impression from IETF 74, there
are a significant number of active IETF participants who want to
pursue this.  If there are, I hope they will identify
themselves.  In their absence, I trust the rest of us can and
will return to productive work.

If you are going forward with this nonetheless, let me suggest
three things for you to consider in your next iteration:

(1) In the first paragraph of Section 2, you appear to lay a
foundation for claiming that all Original Contributors who need
to be considered will be listed in Acknowledgments sections.
However, there has never been a requirement (at least prior to
5378) that authors or editors track these Contributors in detail
and document Contributions down to the Section level so that the
author of editor of a follow-on document can identify that work,
as your second bullet on Page 4 (toward the end of Section 2)
apparently anticipates.  Indeed, many IETF documents contain
generic acknowledgments to unspecified participants in a WG.
Neither the IESG nor the IETF Trust have ever objected to such
acknowledgments, at least not to the extent of blocking
publication until specific names are provided.   My guess is
that we would be hard-pressed to identify all participants in a
WG during the time a particular document and its predecessors
were being worked on, even though I could imagine somewhat
painful ways to approximate that list.

Remember too that one of the topics on which I believe that we
had fairly clear (although not complete) consensus prior to IETF
74 was that a model that put more burden --either of extra work
or of legal liability-- on authors or editors was not in the
best interests of the IETF.  Both the suggestion that authors
should start tracking and documenting contributions down to the
paragraph or section level and the implication that authors
should make statements on behalf of "all Contributors" based on
who is explicitly listed contradicts that principle.

(2) A second key principle is that we should not leave authors
or editors in situations in which their own legal Counsel is, in
good faith, advising them that Contributing work to the IETF is
ill-advised because of IPR traps.  Unless the IETF Trust (or, in
principle, you and your University and Harald and Google) are
willing to give legal advice and protect authors against the
consequences of following that advice, the disclaimers in 5378
and elsewhere apply.  When your document imposes a requirement
based on a November 10 cutover and effectively insists that, as
an author, I may rely on you for a belief that any material
contributed after 10 November was contributed consistent with
the rules and licenses required by 5378.

Now consider a situation that one might hope was purely
hypothetical (it is not).  You (or the Trust) publish a document
that says "you can rely on publication after November 10, even
if the publication occurs on November 11th".   The relevant
author consults his or her own Counsel, as 5378 and its
predecessors rather strongly recommend, and is told "you
absolutely cannot rely on the November 10th date because, if
someone wants to make a claim against rights not granted before
5378, they will point out that there is no reasonable basis on
which they could have been expected to know that 5378 was
applicable, especially since the old Note Well was used at IETF
73 a week later".   It doesn't make any difference whether the
author's lawyer is "right" or not(that would be determined only
by a judge if someone actually did make such a claim).  The
problem is that, if you insisted that the author could rely on
November 10 and the author got legal advice that such reliance
was unwise, the author would have two choices: to obtain formal
releases from everyone who might be considered a Contributor (a
requirement I believe the IETF has rejected) or to not post the
relevant document (which hurts the community).

I think the conclusion from this is the one others have
suggested: either the Trust has to offer people the legal advice
that they can rely on the November 10 date _and_ indemnify them
against any bad consequences of that date being challenged or
the date is meaningless.


(3) One of the key mandates to this incarnation of the IPR WG
was that having the WG, or any other amateur or collection of
amateurs, write legal text or specific legal provisions was a
bad idea, characterized by repeated failures in the past.  The
WG was chartered to not try that again but rather to specify
goals and objectives with the expectation that the Trust and
Counsel would then write text.  So now we have a document,
written under the names of two such amateur lawyers, that
specifies legal text.  That is inappropriate and unwise at best.

regards,
     john