Licensing [Re: DNSEXT Minutes @ IETF-63 [Software Patent issues denieddiscussion]]

[Brian E Carpenter <[e-mail]>]

I suggest that if people want to pursue this subthread, they should do
so in the ipr WG, where there is at least some relevance to the charter
and the issue has been raised before.

I don't see the justification for cross posting here.

    Brian

Hallam-Baker, Phillip wrote:
>>I didn't see the original note -- if it was from whom I think it was, 
>>my killfile took care of that -- but for a more authoritative 
>>description of the situation, see the first two paragraphs of 
>>Section 2 of RFC 3669.
> 
> 
> Without wanting to engage the dispute ove minutes I think that it would
> be useful if the IETF had a definition of an 'open patent license' even
> if WGs were not required to insist on it.
> 
> My concern here is that in the MARID group it was clear that the
> negotiating situation was not conducive to obtaining the desired result,
> a different negotiating situation might have achieved that result.
> 
> The problem is that at present each WG negotiates independently.
> Although a concession made by an IPR holder does not set a precedent in
> theory the practice is quite the opposite. If GloboCorp aggrees to terms
> X in WG A then that is going to be the starting point for negotiations
> in WG B. GloboCorp can never hope to receive terms that are any more
> favorable.
> 
> The problem here is that GloboCorp cannot expect other IPR holders to be
> held to the same conditions. Any concession made by GloboCorp will be a
> precedent that GloboCorp can be held to in any future negotiation but
> GloboCorp cannot require the precedent to be enforced against any other
> party.
> 
> 
> This negotiation mechanism essentially requires unilateral, binding
> concessions on the part of IPR holders without the hope of future
> reciprocity. That is not the best way for an organization to negotiate
> the most favorable terms from the IPR holders.
> 
> Negotiating a standard set of 'open terms' at the organization level has
> the advantage that the lawyers for GloboCorp have a direct stake in the
> negotiation and they must consider both sides of the equation. Rather
> than being asked to unilaterally surrender a particular set of IPR
> claims the lawyers are looking at an exchange, they are much more likely
> to negotiate favorable terms if they are hoping to benefit from them in
> turn.
> 
> 
> Finaly there is a complex issue of copyright law which was largely
> dismissed in the MARID case but is actually a concern for other major
> IPR holders. The theory of reciprocal sublicensing has not been tested
> in court except in the SCO case and there close to $100 million has been
> spent on legal fees without any real clarification of the question of
> whether a reciprocal sublicense in the GNU style is actually binding. 
> 
> The core issue here for the IPR holders is reciprocity. If they give
> away IPR claims can the rely on a reciprocal rights clause? The IPR
> holders are not convinced this is the case and they are the people who
> are being asked to rely on it. The FOSS community has nothing at stake
> here, if the theory does not hold up in court they have lost nothing.
> The IPR holders might find themselves in a situation where they are
> being sued by a rights holder but have lost the ability to enforce
> reciprocal rights.
> 
> There are three possible solutions to this problem. The first is to do
> nothing and hope the problem goes away. 
> 
> The second approach is to attempt to insist on an open sublicense
> clause. This is likely to mean that specifications with significant IPR
> claims will be directed to other venues such as OASIS and W3C where the
> definition of open license is favorable. The problem here is that the
> people promoting the
> 
> The third approach would be to look for some other form of legal
> arrangement such as a rulebook structure that is tried and tested and
> does not represent an unquantifiable legal risk.
> 
> 
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