Re: Rights in early RFCs

[Michael StJohns <[e-mail]>]

On 6/16/2019 11:19 AM, Joe Touch wrote:
>
>> On Jun 15, 2019, at 10:53 PM, Michael StJohns <[e-mail]> wrote:
>>
>>
>> On 6/14/2019 10:22 PM, Brian E Carpenter wrote:
>>> On 15-Jun-19 12:38, Joe Touch wrote:
>>>> FWIW, IANAL but the agreements below affect only the editing and publication functions of ISI during the period indicated, which (AFAICT) was after Jon died.
>>> No, pre-October 1998 is specifically included in the first one. The two are slightly different for reasons that various lawyers no doubt explained at the time.
>>>   
>>>> I.e, this refers to the RFC Editor contributions. It does not appear (again, IANAL) to affect either previous works or even RFC work done by others during that period (granted that the ISOC started adding copyright statements to RFCs somewhere in that time too).
>>> It applies to all rights that ISI *might have had*, which is all they could offer. It doesn't apply to any rights that third parties might have had, obviously. So it is the maximum that ISI could offer, which is all we could ask for. (IANAL, but I was in the discussion loop with the Trust's lawyer.)
>> FWIW, RFC768 would have been considered a work-for-hire by Jon on behalf of ISI, and ISI could then grant the rights wherever they wanted that wasn't inconsistent with the contract between ISI and the US Government that covered Jon's work.
> That may - or may not - be true for Jon, but he was staff at the time.
>
> It’s useful to note that this would not affect *faculty* at USC (other faculty elsewhere might have the same privileges); at USC, they have always been given rights to their research, except only when it is specifically identified as a product of a contract, in specific exception to “work for hire” copyright.

Not exactly.  If Jon had published RFC768 instead in a public journal or 
as part of a symposium submission etc, AND asserted copyright AND 
acknowledged the funding, he (or ISI depending on Jon's contract with 
ISI) would have owned the copyright - and that's the general way Faculty 
would get things out.   For example compare and contrast the TCP and IP 
RFCs vs the papers written by Dave Clark, Vint Cert et al on exactly the 
same topic .   It's not so much where you work as how you publish and 
what's in the contract.

So, yes it would affect faculty if the deliverable was specifications 
for the network.  USC can't unilaterally waive the FARs for the performers.

Technical documents published to an (at the time) internal archival 
system for the use of other members of the community and where no 
copyright was asserted by ISI or approved by the Contracting officer 
wouldn't be in that category.

Here's the paragraph in the FARS that would have been incorporated in 
the contract (or something very similar to this). Even if no approval 
was required, the FARS require explicit assertion of copyright in the 
body of the work, and acknowledgement of the funding support by the 
government - both of which are absent in most of the RFCs.

> (i) Unless provided otherwise in paragraph (d) of this clause, the 
> Contractor may establish, without prior approval of the Contracting 
> Officer,_claim to copyright in scientific and technical articles based 
> on or containing data first produced in the performance of this 
> contract and published in academic, technical or professional 
> journals, symposia proceedings or similar works_. The prior, express 
> written permission of the Contracting Officer is required to assert 
> copyright in all other data first produced in the performance of this 
> contract.


> There are also other workarounds - e.g., hiring someone to write a book is work for hire; hiring them to investigate a topic and submit periodic progress reports - and having them write the book based on that research but on their own time - is not.

The progress reports are work for hire - the papers are probably not.  
If the contract requires the book, then all bets are off on whether the 
book is a work for hire.

> And those two cases aren’t hypothetical; IANAL but they are based on direct experience at USC with the appropriate experts, FWIW.
>
> Joe

Yup - but there's this real confusion about the difference between IPR 
and copyright with respect to work funded by the US Gov't.  In the 
ARPA/DARPA contracts I funded (and before that the NIC and BBN contracts 
I managed at the DDNPMO), the underlying IPR was generally the property 
of the contractor, but the US Gov't got unlimited paid up rights.  The 
documents produced under the contract and delivered to me or provided to 
the community were for the most part free of originator copyright 
restrictions.  They weren't public domain per se, but absent an explicit 
claim of copyright (which I think is still the case today even with 
changes in the copyright rules), they could be treated as public 
domain/government owned.  During the term of a number of contracts, 
various investigators published "scholarly works" in public journals and 
asserted copyright over them - those copyrights belong to the originator 
or to their employer and not the US Gov't.

Later, Mike