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 23:15 UTC

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Date: Wed, 13 Apr 2016 19:15:22 -0400
From: John C Klensin <john-ietf@jck.com>
To: "Joel M. Halpern" <jmh@joelhalpern.com>, 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 Wednesday, April 13, 2016 16:04 -0400 "Joel M. Halpern"
<jmh@joelhalpern.com> wrote:

> John, your memory / perception of the discussion around
> participation differs markedly from mine.
> Your interpretation that even sitting quietly is still
> attempting to influence the outcome is specifically at
> variance with the discussion that gave rise to that wording,
> as I heard it.

ok.  I certainly agree that sitting quietly would be pushing it
and defer to your memory and that of Stephen and the Orlando
minutes.  Again, what I think is more important is avoiding
getting into a discussion of "did he or did he not actually
hum?"   Or do you think humming is not "attempting to influence
a decision" and, if so, how loudly is needed?   See below.

> I would also note htat any chair who tries to use the number
> of people who don't say anything as aqn indication of any
> aspect of a WG decision is simply asking for trouble.  Which
> is why most chairs, when trying to get a sense of the room on
> something, always ask the obverse question, and sometimes even
> ask "how many people don't care."

I absolutely agree with that.  But the last time I heard a chair
try to take only a "for" hum, only to be asked by the group to
ask the negative question was, hmm, in a WG last week.  It may
be a bad practice, but it isn't an uncommon behavior.   Note
that these distinctions will get increasingly important as
remote participation (as distinct from remote watching or
observing or lurking increases).  For example, last week,
Meetecho required that I check a box to distinguish between
being "a participant" and "an observer".  If I check the
"participant" box, but don't get myself in queue, say anything
substantive on Jabber, or click on "hum" does "solely to the
extent of such participation" [3979bis section 1(f)] protect me
from IPR obligations regardless of what 3979bis section 1(k)
might say?    If the answer is "yes, I am protected", how
substantive do my Jabber comments have to be to to constitute
participation?  Can I say "the audio isn't working" without that
being a comment to the WG?    

Just to be clear about how muddled this is, I note that 39796bis
Section 3.3 is titled "Obligations on Participants" and starts
"By Participating in IETF, each Participant..." but then the
specific statements that follow talk only about Contributors.
Given the level of hair-splitting we seem to be getting into,
could that be taken to mean that non-Contributor Participants
are really not Participants?

At the other extreme, Section 6 says "Since disclosure is
required for anyone making a Contribution or _participating in
IETF activities_..." (emphasis mine) [1].  Note that doesn't
say, e.g., "entangled with a particular document or even WG or
trying to influence its outcome", it refers to IETF activities
generally.  Now, showing up at the Social, or coming to a
meeting break and eating the cookies is fairly clearly
"participating in an IETF activity".  Or, if you take the 3979
wording as better reflecting the intent, involvement in a
discussion of meeting locations (with not participation in the
IETF's technical work at all) is "participating in IETF
discussions).  Now a sentence further on adds "about a
technology", but that doesn't seem to modify the earlier
sentences or to actually add much to "disclosure is required".

Now I don't know if Section 13 of 3979bis is considered
normative, but, if it is, we have yet another definition, i.e.,
"Participation...At a high level, suggested that anyone who says
something on a list or in a WG meeting is required to make IPR
disclosures".   Now, given that or just the text earlier in
3979bis or, for that matter, in 3979, please answer the
following questions:

(i) If an AD sends a note to a WG list that reads "We are
debating whether the WG needs to meet at IETF 97", does that
constitute participating in all of the work of the WG?  Any of
the work?   The current text of 3979bis fairly clearly says
"yes" because of the sweeping obligations it puts on ADs but we
have been debating that.

(ii) If someone stands up in a WG meeting and says "would people
please be more careful to announce their names clearly before
speaking", is that different from "saying something... in a WG
meeting"?  How about if a remote participant says exactly the
same thing on Jabber?   Good sense says that it clearly is
different from participation that would incur disclosure
obligations (especially if the sections of IETF 86 minutes
quoted by Steve count), but one can't derive that from the text
of 3979bis (or, AFAICT, 3979).

(iii) If an AD, via the tracking machinery, posts a note that
says, roughly, "Joe Blow has no objection to
draft-ietf-foo-barbaz-99" and that note, as is contemporary
practice, is posted to the foo WG mailing list, isn't that
"saying something on a list"?  Note that saying exactly the same
thing, in the same way, in 2006, would not have, by itself,
incurred any obligation (or any posting) because the tracker
didn't routinely copy things to WG mailing lists.  On the other
other hand, if an AD chose to explicitly tell a WG about her
decision on a particular document, that would fairly clearly be
a Contribution even under 3979.

(iv) If a remote participant enters something into Jabber
preceded by "MIC" and someone in the room stands up and reads
it, has the latter person thereby said something in a WG meeting
and therefore incurred participation and disclosure obligations?

To the extent to which I agree with Michael that people should
have clear expectations about when they are, or are not,
expected to disclose, the above suggests that things have gotten
rather muddled.  I'm suggesting that is exactly the case, that
we need to return to principles, and that those principles need
to not depend on "well, I didn't hum and therefore don't have to
disclose" or, much worse, "you can't prove I hummed audibly and
therefore I don't have to disclose".   

best,
   john


     john



[1] That comes almost directly from the slight different
statement in RFC 3979 Section 7, which reads "Since disclosure
is required for anyone submitting documents or participating in
IETF discussions...".  It is not clear to me which of the two is
narrower or if the rephrasing is a change in intent.