Re: [hrpc] new title for draft-tenoever-hrpc-political

[Tony Rutkowski <[e-mail]>]

Hi Amelia,

The point is understood, although this isn't my "gut feeling."  I have
spent the past forty years practicing on-and-off in the standards IPR
arena as a public official, company regulatory counsel, participant in
many standards bodies, and adjunct professor at NY Law School.  As the
Internet Society's Executive Director in the early 90s, I also helped
set up the IETF's IPR arrangements at that point, including asserting
control for the purpose of ITU recognition, and the work with Patrice
Lyons on the Internet trademark controversy. 

First of all, it's not clear what the argument is here.  I simply
asserted that all internet standards activities of every flavour have
had to deal with a host of IPR issues since their inception, and that it
isn't clear that the IETF's arrangements are better.  The history here
literally goes back to the first such activities circa 1850.

The first step is to parse the term IPR - which is a vast field of law
generally consisting of copyright, trademark, patent protection, and
trade secrets as they are instantiated in international and national
legal instruments, contractual arrangements, and judicial decisions. 
The daily newsletter Law360 is largely dedicated IPR developments in
this field with multiple new developments every day.

A useful insight into the complexity can be found repository of source
material from the perspective of the major SDOs can be found in the
meetings of Global Standards Collaboration IPR Working Group.  See,
e.g., <https://www.itu.int/ITU-T/gsc/gsc13/index.html#iprwg;
https://www.itu.int/en/ITU-T/gsc/Pages/GSC-17/gsc17-iprwg.aspx>  It is
arguably biased toward the more formal legacy bodies that have exerted
controls on the IPR to earn publishing revenue.  In many ways, the
best-of-breed IPR arrangements today are those of ETSI both as to policy
and enforcement.  See at
https://www.etsi.org/images/files/IPR/etsi-ipr-policy.pdf

The IETF IPR situation has been a complex one.  Two significant
complicating factors have been its USGOV origins and funding and
management of the activities, published material, and participant work
over many decades, as well as the IETF's lack of legal existence.  In
the 1990s, when DARPA and then NSF began withdrawing their support,
there were major struggles and controversies over every IPR aspect. 

Some of these struggles also were critically important.  Three major
ones emerged.  One was the issue of "who owned the IPR" which in the
early 1990s became critical as to the recognition of the work globally. 
The solution was for the Internet Society to take ownership together
with CNRI - which persists today in the form of the IETF Trust.  The
arrangement was blessed by intergovernmental bodies like the ITU.

A second major IPR issue relates the "names and number" identifiers
created as an IPR adjunct to the IETF standards activity.  Here the
claims went back to the early DARPA internet days where the Menlo Park
NIC and then IANA held the IPR pursuant to government contracts.  This
became critically important when initially the IPR was headed toward
ownership by the ITU in 1996, and then reasserted by the USGOV and
assigned to the Dept of Commerce who subsequently facilitated a complex
agreement between ICANN and the IETF Trust.

A third major IPR issue was the ownership of "internet" because a
banking consortium had used and trademarked the term in conjunction with
its rollout of its interbanking internet platform at a time when it was
not yet used by DARPA.  That controversy was eventually solved by
Patrice Lyons acting as IPR counsel for ISOC and CNRI in a famous
judicial body agreement in 2000.   The legal outcome was that the term
internet was "generic" and no party could maintain IPR claims to its use.

An additional IPR consideration that deserves note is the practice to
make the materials freely available without distribution controls in
either printed form or network based servers over the decades.  The
practice here arising from the DOD and NSF funding had a profound effect
on standards activities worldwide and changed the practices of  most. 
The preponderance of internet standards bodies today make their
standards  (and in many cases the activity documents) freely available
on network based servers.  The most massive is 3GPP - supported by the
ETSI Secretariat.  However, even the ITU in its upcoming treaty
conference, is extolling the virtues of freely available internet standards!

So it is rather unfathomable as to exactly what IETF IPR arrangements
are "better" than that of any other standards activity or body.  Because
the IETF is not a legal entity, the IPR arrangements leave the
individual participants more exposed to potential litigation.   Is that
good?

So if anyone wants to clarify the legal components, we can continue the
discussion, and I'd be pleased to provided copious actual source legal
documents. :-)

--tony


On 27-Jul-18, 8:12 AM, Amelia Andersdotter wrote:
> On 2018-07-27 13:49, Tony Rutkowski wrote:
>> Hi Amelia,
>>
>> IPR is a major issue among all the SDOs, and it would be difficult to
>> support the proposition that the IETF has somehow a  better
>> arrangement.  
> Maybe you could provide more substantial feedback on that beyond your
> gut-feeling? I recall I specifically looked up quantitative studies that
> are referenced in the draft to make my original assertion.
>
> best,
>