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

John C Klensin <john-ietf@jck.com> Mon, 04 April 2016 16:00 UTC

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Date: Mon, 04 Apr 2016 11:59:46 -0400
From: John C Klensin <john-ietf@jck.com>
To: Barry Leiba <barryleiba@computer.org>, Stephan Wenger <stewe@stewe.org>
Subject: Re: Last Call on draft-bradner-rfc3979bis-08.txt ("Intellectual Property Rights in IETF Technology")
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--On Monday, April 04, 2016 10:39 -0400 Barry Leiba
<barryleiba@computer.org> wrote:

> A follow-up here:
> 
> I'd be more comfortably with something more waffly, something
> more like this:
> 
> Without limiting the generality of the foregoing, acting as a
> working group chair or Area Director can often be considered
> "Participating" in all activities of the relevant working
> group or area; as such, working group chairs and Area
> Directors are expected to make a best, good-faith effort to
> carry out the responsibilities of Participants.
> 
> Or perhaps we want to separate WGCs from ADs here, and the
> text needs more work in any case, but I hope people see the
> general point.

FWIW, I agree with Barry about the general point, but let me go
a step further.  I think we have two main goals in all of this:
preventing someone from sneaking encumbered technology into a
standard (or other IETF specification) without the community
being aware of the encumbrance and avoiding the waste of time
associated with someone letting the specification development
process continue almost to the end before someone says "hey, we
have a patent on that, do you really want to go back and start
over?".   The other thing that is important to remember is that,
at least for a patent-holding organization, there is one
sanction far more serious than anything the IETF can impose, and
that is to try to enforce the patent and have a judge say "you
acted in a deceitful fashion, inconsistent with the intent of
patent laws, in getting people to use your technology, so the
patent is unenforceable".  That has actually occurred, multiple
times, in situations where IPR claims have met standards bodies.
I've been told that, in some cases, it has even resulted in
nasty sanctions against the patent-holder, sanctions that go
beyond invalidation or non-enforceability of the patent.

At least from the point of view of that kind of sanction --one
which many patent-holding organizations and their legal
departments are likely to take more seriously than the risk of
having to throw an IETF participant to the wolves-- it is very
important that our intent be as clear as possible.  If that
means saying something I think should be obvious, which is that
WG Chairs and ADs have extra decision-making authority and hence
bear responsibility for being extra-careful, I think that is
fine.

If someone really wants to Participate, Contribute, and
influence decisions while hiding IPR, or just to be
systematically careless about disclosures, they will find
loopholes to use as a basis for saying "I didn't _really_
violate the rules".  Ironically, if we really try to specify
every case and situation, we may create more such loopholes by
creating a basis for someone to say "they were really specific
about the cases that apply, this isn't an exact match for any of
those, so I didn't have to disclose". 

So let's try to step back a bit, be sure that the draft reflects
our intent as well as possible, and maybe even try to treat the
specific cases we do define as illustrative examples rather than
as rules that can be interpreted as more important than the
intent.

best,
    john