Re: [Trustees] ANNOUNCEMENT: The IETF Trustees invite your review and comments on a proposed Work-Around to the Pre-5378 Problem

[TSG <[e-mail]>]

Russ Housley wrote:

Russ the phrase COUNSEL reviewed the text is meaningless from a legal 
standpoint without specifically asking particular questions. So what is 
it exactly that the Counsel reviewed and is willing to issue a formal 
opinion on?

Todd Glassey
> John:
>
>> > I think that the cover note from the Chair of the IETF Trust,
>> > Ed Juskevicius, included the vast bulk of the information that
>> > you are requesting.
>>
>> Russ,  I think your note addresses several more of the issues I
>> was concerned about than Ed's note did.  Assuming that your note
>> represents the consensus of the Trustees where that is relevant,
>> I don't see any reason to quibble about that point.
>>
>> More to the point, while I think I disagree with parts of your
>> analysis, the disagreements, if any, are in areas that should
>> not block progress at this point, i.e., I can live with your
>> interpretation without any need to dispute those differences.
>>
>> I do have a comment on (3) in context...
>>
>> > (3)  "with the advice of Counsel, we believe that this fix
>> > represents
>> > a competent, best-efforts, legal-text representation of that
>> > principle
>> > and nothing else".
>> >
>> > The cover note does not address all of these points.  The
>> > Trustees did seek legal advice, and Counsel fully support this
>> > work-around.  As you might imagine, Counsel was heavily
>> > involved in the discussions as well as the words themselves.
>> > The Trustees are trying to provide a near-term work-around
>> > within the current BCPs and nothing else.
>>
>> Good. However, what I was looking for was assurance from Counsel
>> that he had done an in-depth analysis of the language and
>> concluded that it was both necessary and sufficient to address
>> and solve (or work around) the problem.  That is different from
>> "supporting the work-around", "involved in the discussions", etc.
>>
>> Ekr's recent note points out part of the problem that I believe
>> that Counsel should have caught (and would have caught if asked
>> the right question).   The intent, as ekr and I understand it
>> and as I think your and Ed's note indicated, was to eliminate
>> the requirement that authors make any assertions at all about
>> work other than their own, much less requiring that they
>> guarantee those assertions.  Perhaps, for a document some of
>> whose text predates 5378, I am certain about the origins of all
>> of the text and can make assertions about it and about whether
>> or not everyone has signed off.  But, if I am not, I should not
>> be required to make assertions, one way or the other, that
>> require that I claim and take responsibility for, complete
>> knowledge.  Even if I am willing to take responsibility for
>> identify all of the relevant Contributors, unless there is a
>> compelling reason that I haven't heard yet, we should not be
>> requiring authors to search the Trust's archives to determine
>> who has signed off, who has not, and whether the statements they
>> made in signing off are sufficient to meet the conditions of
>> 5378 as modified by the workaround.
>>
>> So I strongly support the general thrust of ekr's proposed
>> modified text rather than the text as posted.  If a change is
>> made that is consistent with the general principle that authors
>> who know that they are working on documents that contain
>> pre-5378 text, text about which others might make claims, do not
>> need to make any affirmative assertions at all about the IPR
>> status of that other work.
>
> Counsel certainly reviewed the text, but like many groups, there was 
> input from several individuals coming in at roughly the same time.  
> One of the portions the text that EKR is concerned about resulted from 
> edits that I suggested.  I do not agree with some aspects of his 
> interpretation, but that is not important because I think his 
> suggested words are even better.  This is the point of the community 
> review.  I'm pleased to support them.
>
> Russ
>
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