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

[Ted Hardie <[e-mail]>]

On Thu, Aug 15, 2013 at 7:13 AM, Stephan Wenger <[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]>
> Date: Wednesday, 14 August, 2013 08:48
> To: Stephan Wenger <[e-mail]>
> Cc: "[e-mail]" <[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).
>