Re: RFC3979bis section 7 -- hierarchy of preference for licensing

[Stephan Wenger <[e-mail]>]

Hi Ted,
I see your points, and I concur.  If we were extending the hierarchy by adding non-assert, that sentence I quoted below has to be adjusted and most likely expanded on.  I have no problems in adding word count here as this is IMO one of the most important features of the IETF IPR policy and certainly one that is uncommon in major SDOs.   I should have mentioned this in my original mail.
Stephan


From: Ted Hardie <[e-mail]<mailto:[e-mail]>>
Date: Thursday, 15 August, 2013 16:31
To: Stephan Wenger <[e-mail]<mailto:[e-mail]>>
Cc: "[e-mail]<mailto:[e-mail]>" <[e-mail]<mailto:[e-mail]>>
Subject: Re: RFC3979bis section 7 -- hierarchy of preference for licensing

On Thu, Aug 15, 2013 at 7:13 AM, Stephan Wenger <[e-mail]<mailto:[e-mail]>> wrote:
 In particular, right after the sentence I try to improve on, follows:
"
But IETF working groups have the discretion
to adopt technology with a commitment of fair and non-discriminatory
terms, or even with no licensing commitment, if they feel that this
technology is superior enough to alternatives with fewer IPR claims
or free licensing to outweigh the potential cost of the licenses.
"
Isn't that already addressing your concern?

I don't think it is adequate any more.  The old stuff basically said "We want to get fair and non-discriminatory, and when we don't get it for a superior technology, the working group could still choose the superior technology".   Not quite a binary view of "yes,we got what we want" vs. "no we didn't", but certainly not a full hierarchy either.

A working group choosing between technology A. (non-assert) and technology B. (RAND-Z)  isn't really in the same place as one chosing between C (non-assert) and F (rand-with-royalties).  It's making a very different trade-off, and I think that should be made clear.  We should say that the working group (not this hierarchical list) makes the trade-off; it may be informed by this general list, but if it has even a moderate reason to prefer B over A, that may be justifiable.

Put a very different way "superior enough" is pretty variable, and the judge is the working group--let's make that clear.


Should we change the order of the parts of the section, such that the above citation (or something similar) appears prominently at the begin of section 7?


I don't think the ordering is salient, here, personally, as by the time we get to referring to this document, people better be reading the whole thing.

Ted

Stephan



From: Ted Hardie <[e-mail]<mailto:[e-mail]>>
Date: Wednesday, 14 August, 2013 08:48
To: Stephan Wenger <[e-mail]<mailto:[e-mail]>>
Cc: "[e-mail]<mailto:[e-mail]>" <[e-mail]<mailto:[e-mail]>>
Subject: Re: RFC3979bis section 7 -- hierarchy of preference for licensing

So, I've read the thread to this point, and as I watched I got more and more niggled with the feeling that it was heading in the wrong direction.

As I thought about why, I realized that the whole of hierarchy of preference discussion is disconnected from what a WG does:  make tradeoffs.   A working group faced with technology A with license FOO and technology B with license BAR is almost never going to pick solely on license; it's a balance of the benefits of the technology and the consequences of the license.  Creating a hierarchy of preference for license terms has a sort of theoretical advantage in that it tells people who are considering what licenses the IETF likes.  Those people probably have lawyers with other things to think about it, so I suspect it of being pretty theoretical, but harmless.

This section, though, does not seem to me good enoughfi  we are going to state a preference hierarchy.:


   In general, IETF working groups prefer technologies with no known IPR
   claims or, for technologies with claims against them, an offer of
   royalty-free licensing.  But IETF working groups have the discretion
   to adopt technology with a commitment of fair and non-discriminatory
   terms, or even with no licensing commitment, if they feel that this
   technology is superior enough to alternatives with fewer IPR claims
   or free licensing to outweigh the potential cost of the licenses.


I think we need language that says explicitly that the working group makes the trade-off between the technology's advantages and the license's conditions.  Otherwise, I foresee WGs with people arguing that technology B must be chosen because its license is higher in the hierarchy and acceptable (for some value of acceptable).