RE: Last Call on draft-bradner-rfc3979bis-08.txt ("Intellectual Property Rights in IETF Technology")

John C Klensin <john-ietf@jck.com> Wed, 13 April 2016 17:41 UTC

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Date: Wed, 13 Apr 2016 13:41:09 -0400
From: John C Klensin <john-ietf@jck.com>
To: Michael Cameron <michael.cameron@ericsson.com>, Alissa Cooper <alissa@cooperw.in>, Jari Arkko <jari.arkko@piuha.net>
Subject: RE: Last Call on draft-bradner-rfc3979bis-08.txt ("Intellectual Property Rights in IETF Technology")
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--On Tuesday, April 12, 2016 17:33 +0000 Michael Cameron
<michael.cameron@ericsson.com> wrote:

> John said:
> 
> As a random member of the community, whether I'm participating
> in a WG, or even actively monitoring it, is fairly clear.  If,
> for example, I'm attending its meetings (f2f or remotely) or
> signed up for its mailing list, the community should be able
> to assume that I'm watching the work in that WG and should be
> required to make relevant IPR disclosures even if I don't
> actually say anything or otherwise generate Contributions.    
> 
> My response:
> 
> I appreciate that some are advocating for what they want the
> rules to be, but let's level set as to what they are.
> Attending meetings, being signed up for mailing lists or
> watching work in a WG does not obligate one to make any IPR
> disclosures.  That was discussed in detail at the last IETF
> meeting when the IPR Group met (Orlando, IIRC). The IPR
> disclosure obligation arises only with respect to known IPR
> reading on Contributions (for Contributors) and for
> non-Contributors, the disclosure obligation only applies to
> known IPR reading on a draft on which such non-Contributor
> actively seeks to influence the outcome of the disposition of
> a draft (active participation).

Again, you are splitting hairs in a very lawyer-like fashion
(you may take that as a complement if you like).   But I suggest
that, e.g., responding to a request for a hum, or even not
humming when a WG Chair asks a question and does not ask for
hums on the opposite or on any other alternatives, constitutes
"actively seeking to influence the outcome...".  If I'm sitting
in the WG session at a time a WG Chair asks
consensus-determining questions and I don't want to be counted
as for, against, or indifferent (itself a potentially
influencing position), I'd best head for the door rather than
sitting there.

My recollection of that last meeting of the IPR WG (and several
before it, both immediately before and over the years) is
apparently a bit different from yours.   My understanding of the
discussion there was that the community's intent is that, if one
knew of IPR that might reasonably be expected to bear on the
work of a WG or a particular document, the expectation was that
one would disclose (with the level of that expectation
deliberately lower if one was not directly connected to the IPR
than if one was directly connected.  If, for some reason,
disclosure was impossible and/or would violate other
commitments, then one was expected to be clearly isolated from
the work generally and from any reasonable doubts about whether
one had influenced a decision or attempted to do so.    IMO, the
alternatives lead to madness, e.g., can you imagine wanting to
know who was sitting next to someone so as to be able to ask is
he or she hummed, made silly faces, or otherwise tried to
influence the outcome of a discussion about a draft?

Now, I think there is a separate issue, which is when the cases
arise from which the IETF threatens to apply sanctions for
violating the rules.  I think we need to deal with the gray
areas in which someone made a reasonable judgment call
(including cases in which there is question about whether
first-party or third-party rules apply) in a reasoned, flexible,
and generous way, reserving the punishments and nasty behavior
for clear cases or patterns of abuse.     I think our actual
practice has been consistent with that approach.

> John said:
> 
> If you are the AD responsible for a WG, then I think the
> community gets to assume that you know what its work items
> are, have approved document editors, and have at least read
> the abstracts of the various drafts, i.e., that you are
> participating.  If you are some other AD in the same area,
> well, areas differ a lot and over time.  In some cases, ADs
> shadow each other as a mutual backup arrangements and I'd
> expect to be able to treat all ADs in the same area as
> "participating" in all WGs.  In others, WGs get divided up
> among ADs, after which the area might as well be as many
> separate ones as there are ADs.  At IETF evaluation time, any
> ADs who record a position other that "abstain" on a spec, or
> to engage in any IESG discussion about it, has presumably
> studied that spec closely enough to incur disclosure
> obligations if IPR is known to them because making a decision
> to adopt (or not) is clearly "participation".  The same issue
> might exist with Co-chairs of a WG with many tasks.  I'd
> normally assume that each one is familiar with and
> participating in every work item, but it isn't hard to imagine
> situations in which work might be split up along clear
> boundaries with one co-chair getting involved in the work of
> the other only at around the time of Last Call if then.
> 
> My response:
> 
> We need to be careful not to place on Area Directors
> unreasonable burdens and obligations.  Further, there needs to
> be certainty as to what the obligations are.   The obligations
> imposed on Area Directors to declare known IPR should be
> limited to those activities in which they actively
> participate.  I'll defer to the ADs, but I would think that an
> AD acting on a recommendation or advice from a WG as to how to
> proceed on a Specification, without more, does not necessarily
> rise to the level of active participation.

That would be great, but it is just not consistent with how the
IESG functions.   ADs are just not expected to passively accept
WG recommendations, at least unless they have been very actively
involved in the WG and is management.  Instead, they are called
upon to evaluate those recommendations and make recommendations
to the community about them.  That is just not a passive,
"without more" sort of relationship.  

However, I think this is showing up a more fundamental problem.
If the community still has the same understanding of the general
intent of the IPR and disclosure rules as it did when the WG
concluded, then treating a document update that clarifies and/or
better aligned with that general intent as an individual
submission from Scott and Jorge.  If, however, we have
significant disagreements about what the intent was, and maybe
even about whether things have changed enough that the intent
needs to be re-evaluated, then, at least IMO, it is unreasonable
to expect that we can gets things right on the IETF list as part
of a Last Call on an individual submission.  Instead, if we have
reacted the point where a debate about principles is needed, it
is almost certainly time to reconvene/ recharter the WG.

    john