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Checking references for intended status: Informational ---------------------------------------------------------------------------- == Missing Reference: 'URLNoteWell' is mentioned on line 407, but not defined == Missing Reference: 'URLDisclose' is mentioned on line 398, but not defined == Missing Reference: 'URLIESG2026' is mentioned on line 400, but not defined == Missing Reference: 'URLIESGIPR' is mentioned on line 402, but not defined == Missing Reference: 'URLIPR' is mentioned on line 405, but not defined ** Obsolete normative reference: RFC 3979 (ref. 'BCP79') (Obsoleted by RFC 8179) -- Obsolete informational reference (is this intentional?): RFC 3005 (Obsoleted by RFC 9245) Summary: 1 error (**), 0 flaws (~~), 6 warnings (==), 2 comments (--). Run idnits with the --verbose option for more detailed information about the items above. -------------------------------------------------------------------------------- 1 Network Working Group A. Farrel 2 Internet Draft Juniper Networks 3 Category: Informational P. Resnick 4 Qualcomm 5 Expires: 3 September 2012 3 March 2012 7 Sanctions Available for Application to Violators of IETF IPR Policy 9 draft-farrresnickel-ipr-sanctions-02.txt 11 Abstract 13 The IETF has developed and documented policies that govern the 14 behavior of all IETF participants with respect to Intellectual 15 Property Rights (IPR) about which they might reasonably be aware. 17 The IETF takes conformance to these IPR policies very seriously. 18 However, there has been some ambiguity as to what the appropriate 19 sanctions are for the violation of these policies, and how and by 20 whom those sanctions are to be applied. 22 This document discusses these issues and provides a suite of 23 potential actions that may be taken within the IETF community. 25 Status of this Memo 27 This Internet-Draft is submitted to IETF in full conformance with the 28 provisions of BCP 78 and BCP 79. 30 Internet-Drafts are working documents of the Internet Engineering 31 Task Force (IETF), its areas, and its working groups. Note that other 32 groups may also distribute working documents as Internet-Drafts. 34 Internet-Drafts are draft documents valid for a maximum of six months 35 and may be updated, replaced, or obsoleted by other documents at any 36 time. It is inappropriate to use Internet-Drafts as reference 37 material or to cite them other than as "work in progress." 39 The list of current Internet-Drafts can be accessed at 40 http://www.ietf.org/ietf/1id-abstracts.txt 42 The list of Internet-Draft Shadow Directories can be accessed at 43 http://www.ietf.org/shadow.html 45 Copyright Notice 47 Copyright (c) 2012 IETF Trust and the persons identified as the 48 document authors. All rights reserved. 50 This document is subject to BCP 78 and the IETF Trust's Legal 51 Provisions Relating to IETF Documents 52 (http://trustee.ietf.org/license-info) in effect on the date of 53 publication of this document. Please review these documents 54 carefully, as they describe your rights and restrictions with respect 55 to this document. Code Components extracted from this document must 56 include Simplified BSD License text as described in Section 4.e of 57 the Trust Legal Provisions and are provided without warranty as 58 described in the Simplified BSD License. 60 1. Introduction 62 The IETF has developed and documented policies that govern the 63 behavior of all IETF participants with respect to intellectual 64 property about which they might reasonably be aware. These are 65 documented in [BCP79] and are frequently brought to the attention of 66 IETF participants. In short, the policies state that each individual 67 participant is responsible for disclosing or ensuring the disclosure 68 of Intellectual Property Rights (IPR) of which they are aware, that 69 are relevant to the work with which they participate through the 70 IETF, and where the IPR is owned by a company that employs or 71 sponsors the individual's work. 73 Conformance to these IPR policies is very important, and there is a 74 need to understand both what sanctions may be applied to participants 75 who violate the policies, and who may apply those sanctions. 77 This document discusses these issues and provides a suite of 78 potential actions that may be taken within the IETF community. All 79 of these sanctions are currently available in IETF processes, and two 80 instances of violation of the IPR policy have been handled using some 81 of the sanctions listed. As explicitly called out in Section 4, 82 a posting rights (PR) action described in [RFC2418] as updated by 83 [RFC3934], and in [RFC3683] is an applicable sanction for the case of 84 a breach of the IETF's IPR policy. 86 This document does not consider the parallel, but important issue of 87 ways to actively promote conformance with the IETF's IPR policy. 88 That topic is discussed in [Promote]. 90 2. Description of IETF IPR Policy 92 The IETF's IPR policy is set out in [BCP79]. Nothing in this 93 document defines or redefines the IETF's IPR policy. This section 94 simply highlights some important aspects of those policies. 96 2.1. Responsibilities of IETF Participants and Timeliness 98 According to [BCP79], individual IETF participants have a 99 personal responsibility to disclose or ensure the timely disclosure 100 of IPR of which they are aware and which they own or which is owned 101 by a company that employs or sponsors them, and which impinges upon 102 the contribution that they make to the IETF. 104 A "contribution" is also defined in [BCP79] and includes Internet- 105 Drafts, emails to IETF mailing lists, presentations at IETF meetings, 106 and comments made at the microphone during IETF meetings. 108 The timeliness of disclosure is very important within [BCP79]. No 109 precise definition of "timeliness" is given in [BCP79] and it is not 110 the purpose of this document to do so. But it is important to 111 understand that the impact that an IPR disclosure has on the smooth 112 working of the IETF is an inverse function of its timeliness. Thus, 113 a disclosure made on a published RFC will be more disruptive to the 114 IETF than such a disclosure on an early revision of an individual 115 submission of an Internet-Draft. 117 Third-party disclosures may also be made by anyone who believes that 118 IPR may exist. 120 It is important to note that each individual IETF participant has a 121 choice under the IETF's IPR policy. If the individual is unwilling 122 or unable to disclose the existence of relevant IPR in a timely 123 manner, that individual has the option to refrain from participating 124 in IETF discussions about the technology covered by the IPR 126 2.2. How Attention is Drawn to These Responsibilities 128 The IETF draws the attention of all participants to the IPR policy 129 [BCP79] through the "Note Well" statement on the IETF web pages 130 [URLNoteWell], presentations at working group and plenary meetings, 131 and in printed materials handed out at IETF meetings, as well as in 132 the boilerplate text appearing in each Internet-Draft and RFC. 134 2.3. How IPR Disclosures are Made 136 The procedure for filing IPR disclosures is shown on the IETF's web 137 site at [URLDisclose]. Third-party disclosures may also be made by 138 email to the IETF Secretariat or via the web page. 140 Note that early disclosures or warnings that there might be IPR on a 141 technology may also be made. 143 2.4. How Working Groups Consider IPR Disclosures 145 In the normal course of events, a working group that is notified of 146 the existence of IPR must make a decision about whether to continue 147 with the work as it is, or whether to revise the work to attempt to 148 avoid the IPR claim. This decision is made on the working group's 149 mailing list using normal rough consensus procedures. However, the 150 working group does not discuss the applicability of an IPR claim nor 151 the appropriateness or merit of the IPR licensing terms as these are 152 outside the scope of the technical work of the WG. The IPR situation 153 is considered by working group participants as the document advances 154 through the development process [RFC2026], in particular at key 155 times such as adoption of the document by the working group, and 156 during last call. 158 It needs to be clearly understood that the way that the working group 159 handles an IPR disclosure is distinct from the sanctions that may be 160 applied to the individuals who violated the IETF's IPR policy. That 161 is, the decision by a working group to, for example, entirely re-work 162 an Internet-Draft in order to avoid a piece of IPR that has been 163 disclosed should not be seen as a sanction against the authors. 164 Indeed, and especially in the case of a late IPR disclosure, that a 165 working group decides to do this may be considered a harmful side 166 effect on the working group (in that it slows down the publication of 167 an RFC and may derail other work the working group could be doing) 168 and should be considered as one of the reasons to apply sanctions to 169 the individuals concerned as described in the next two sections 171 2.5. The Desire for Sanctions 173 Not conforming to the IETF's IPR policy undermines the work of the 174 IETF, and sanctions should be applied against offenders. 176 2.6 Severity of Violations 178 Clearly there are different sorts of violations of IPR policy. 179 Sometimes, a working group participant simply does not realize that 180 the IPR that they invented applies to a particular working group 181 draft. Sanctions (if any) need not be at all severe. However, a 182 working group document editor who waits until near the publication 183 of a document to reveal IPR of which they themselves are the author 184 should be subject to more serious sanctions. These are judgments 185 that can be made by the working group chairs and area director. 187 This topic forms the bulk of the material in Sections 5 and 6. 189 3. Who May Call For and Apply Sanctions 191 Any IETF participant can call for sanctions to be applied to anyone 192 they believe has violated the IETF's IPR policy. Normally, however, 193 the working group chairs and area directors assume the responsibility 194 for ensuring the smooth-running of the IETF and for the enforcement 195 of IETF policies including the IPR policy. Thus, working group 196 chairs and area directors will often be the first actors when 197 sanctions are called for. 199 Working group chairs are already empowered to take action against 200 working group participants who flout the IPR rules and so disrupt 201 the smooth running of the IETF or a specific working group, just as 202 they can take such action in the face of other disruptions. 204 The working group chairs have the responsibility to select the 205 appropriate actions since they are closest to the details of the 206 issue. Where there is no working group involved or where making the 207 decision or applying the sanctions is uncomfortable or difficult for 208 the working group chairs, the responsible AD is available to guide or 209 direct the action if necessary. 211 4. Available Sanctions 213 This section lists some of the sanctions available to handle the 214 case of an individual who violates the IETF's IPR policies. It is 215 not intended to be an exhaustive list, nor is it suggested that only 216 one sanction be applied in any case. Furthermore, it is not suggested 217 here that every case of IPR policy infringement is the same or that 218 the severest sanctions should be applied in each case. 220 The sanctions are listed in approximate order of severity, but the 221 ordering should not be taken as definitive or as driving different 222 decisions in different cases. Section 6 gives some guidance on 223 selecting an appropriate sanction in any specific case, while Section 224 5 provides some notes on fairness. 226 a. A private discussion between the working group chair or area 227 director and the individual to understand what went wrong and 228 how it can be prevented in the future. 230 b. A formal, but private warning that the individuals must improve 231 their behavior or risk one of the other sanctions. 233 c. A formal warning on an IETF mailing list that the individuals 234 must improve their behavior or risk one of the other sanctions. 236 d. Announcement to the working group of failure by the individuals 237 ("name and shame"). 239 e. On-going refusal to accept the individuals as editors of any new 240 working group documents. The appointment of editors of working 241 group documents is entirely at the discretion of the working 242 group chairs acting for the working group as explained in 243 [RFC2418]. 245 f. Removal of the individuals as working group document editors on 246 specific documents or across the whole working group. 248 g. Re-positioning of the individual's attribution in a document to 249 the "Acknowledgements" section with or without a note explaining 250 why they are listed there and not in the "Authors' Addresses" 251 section (viz. the IPR policy violation). This action can also be 252 recorded by the area director in the datatracker entries for the 253 documents concerned. 255 h. Application of a temporary suspension of posting rights to a 256 specific mailing list according to the guidelines expressed in 257 [RFC2418] and updated by [RFC3934]. Such bans are applied to 258 specific to individual working group mailing lists at the 259 discretion of the working group chairs for a period of no more 260 than 30 days. 262 i. The removal of posting privileges using a Posting Rights Action 263 (PR Action) as per [RFC3683]. This is a more drastic measure 264 that can be applied when other sanctions are considered 265 insufficient or to have been ineffective. When a PR action is in 266 place, the subjects have their posting rights to particular IETF 267 mailing list removed for a period of a year (unless the action is 268 revoked or extended), and maintainers of any IETF mailing list 269 may, at their discretion and without further recourse to 270 explanation or discussion, also remove posting rights 272 PR actions are introduced by an area director and are considered 273 by the IETF community and the IESG in order to determine IETF 274 consensus. 276 In many cases, it may be appropriate to notify a wider IETF community 277 of the violation and sanctions so that patterns of behavior can be 278 spotted and handled. 280 Note that individuals who have supplied text that is included in an 281 IETF document (RFC or Internet-Draft) have a right to be recognized 282 for their contribution. This means that authors names cannot be 283 entirely removed from a document in the event that they violate the 284 IETF's IPR policy unless the text they contributed is also completely 285 removed. But the individual's name can be removed from the front 286 page and even moved from the "Authors' Addresses" section so long as 287 proper acknowledgement of the contribution is given in the 288 "Acknowledgements" section. 290 4.1. An Additional Note on the Applicability of PR Actions 292 The applicability of PR actions in the event of IPR policy possibly 293 needs some explanation. According to [RFC3683], a PR action may be 294 considered as a practice for use by the IETF in the case that "a 295 participant has engaged in a denial-of-service attack to disrupt the 296 consensus-driven process." 298 [RFC3683] further cites [RFC2418] and [RFC3005] for guidelines for 299 dealing with abusive behavior. [RFC2418] is updated by [RFC3934] in 300 this matter. 302 In some cases, ignoring or flouting the IETF's IPR policy may be 303 considered as disruptive to the smooth operation of a working group 304 or of the whole IETF such that the offender might be deemed to be a 305 disruptive individual under the terms of [RFC2418], [RFC3934] and 306 [RFC3683], and so is liable to be the subject of a sanction that 307 restricts their rights to post to IETF mailing lists as described in 308 bullets h and i of Section 4 of this document. 310 5. A Note on Fairness and Appealing Decisions 312 As with all decisions made within the IETF, any person who feels that 313 they have been subject to unfair treatment or who considers that a 314 decision has been made incorrectly may appeal the decision. The 315 IETF's appeals procedures are described in Section 6.5 of [RFC2026] 316 and reinforced in the IESG statement at [URLIESG2026]. Any sanctions 317 described above may be appealed using these procedures. 319 6. Guidance on Selecting and Applying Sanctions 321 Whoever is applying sanctions for breaching the IETF's IPR policy 322 will want to be sure that the chosen sanction matches the severity of 323 the offence and considers all circumstances. The judgment needs to be 324 applied equitably should similar situations arise in the future. 326 If in any doubt, the person selecting and applying the sanctions 327 should seek the opinion of the relevant part of the IETF community 328 or the community as a whole. Furthermore, the person should not 329 hesitate to seek the advice of their colleagues (co-chairs, area 330 directors, or the whole IESG). 332 This is a judgment call based on all circumstances of each specific 333 case. Some notes on guidance are supplied in Appendix A. 335 7. Security Considerations 337 While nothing in this document directly affects the operational 338 security of the Internet, failing to follow the IETF's IPR policies 339 can be disruptive to the IETF's standards development processes and 340 so may be regarded as an attack on the correct operation of the IETF. 341 Furthermore, a late IPR disclosure (or a complete failure to 342 disclose), could represent an attack on the use of deployed and 343 operational equipment in the Internet. 345 8. IANA Considerations 347 This document makes no requests for IANA action. 349 9. Acknowledgments 351 Thanks to Lou Berger, Ross Callon, Stewart Bryant, Jari Arkko, and 352 Peter Saint-Andre for comments on an early version of this document. 354 Thanks to Subramanian Moonesamy and Tom Petch for their comments on 355 the work. 357 10. Authors' Addresses 359 Adrian Farrel 360 Juniper Networks 361 adrian@olddog.co.uk 363 Pete Resnick 364 Qualcomm 365 presnick@qualcomm.com 367 11. References 369 11.1. Normative References 371 [BCP79] S. Bradner, "Intellectual Property Rights in IETF 372 Technology", BCP 79, RFC 3979, March 2005. 374 [RFC2026] S. Bradner, "The Internet Standards Process - Revision 3", 375 BCP 9, RFC 2026, October 1996. 377 [RFC2418] S. Bradner, "IETF Working Group Guidelines and 378 Procedures", BCP 25, RFC 2418, September 1998. 380 [RFC3683] M. Rose, "A Practice for Revoking Posting Rights to IETF 381 Mailing Lists", BCP 83, RFC 3683, March 2004. 383 [RFC3934] M. Wasserman, "Updates to RFC 2418 Regarding the 384 Management of IETF Mailing Lists", BCP 94, RFC 3934, 385 October 2004. 387 11.2. Informative References 389 [RFC3005] S. Harris, "IETF Discussion List Charter", BCP 45, 390 RFC 3005, November 2000. 392 [Promote] Polk, T. and Saint-Andre, P., "Promoting Compliance with 393 Intellectual Property Rights (IPR) Disclosure Rules", 394 draft-polk-ipr-disclosure, work in progress. 396 11.3. Stable URLs 398 [URLDisclose] http://www.ietf.org/ipr/file-disclosure 400 [URLIESG2026] http://www.ietf.org/iesg/statement/appeal.html 402 [URLIESGIPR] 403 http://trac.tools.ietf.org/group/iesg/trac/wiki/IntellectualProperty 405 [URLIPR] http://www.ietf.org/ipr/policy.html 407 [URLNoteWell] http://www.ietf.org/about/note-well.html 409 Appendix A. Guidance on Selecting and Applying Sanctions 411 As discussed in Section 6, the selection of sanctions needs to be a 412 carefully made judgment call considering all circumstances and 413 events. This Appendix provides a list of things that might form part 414 of that judgment. 416 This list of considerations is for guidance and is not prescriptive 417 or exhaustive, nor does it imply any weighting of the considerations. 419 - How long has the participant been active in the IETF? 421 - Was there some exceptional circumstance? 423 - Are there special circumstances that imply that the individual 424 would not have seen or understood the pointers to and content of 425 [BCP79]. 427 - How late was the disclosure? Is the document already a working 428 group document? How many revisions have been published? How much 429 time has elapsed? Have last calls be held? Has the work been 430 published as an RFC? 432 - Was the individual a minor contributor to the IETF work, or are 433 they clearly a major contributor? 435 - Is there a reason for the individual forgetting the existence of 436 the IPR (for example, it was filed many years previous to the work 437 in the IETF)? 439 - Was the individual told by their company that disclosure was 440 imminent, but then something different happened? 442 - How speedy and humble was the individual's apology? 444 - How disruptive to the IETF work is the disclosure? A factor in 445 this will be whether the IETF community sees the need to re-work 446 the document or not. 448 - Does the large number of patents that the individual has invented 449 provide any level of excuse for failing to notice that one of 450 their patents covered the IETF work?