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

[Michael Cameron <[e-mail]>]

Ted is correct--the WG should be focused on adopting the best technology for the problem at hand, with the IPR profiles of alternatives initially, at least, in the background.  If, during the discussion of technology alternatives, a holder of essential IPR declares they will not make the IPR related to one of them available under any circumstances, then the WG can switch to plan B.  But it is the WG that makes the trade-off between the technology's advantages and the license's conditions.  Otherwise, I also foresee WGs with people arguing that technology B must be chosen because its license is higher in the hierarchy.  Perhaps we can state that notwithstanding a IPR hierarchy, the technical advantages of a solution should be predominant in the WG.

________________________________
From: [e-mail] [mailto:[e-mail]] On Behalf Of Ted Hardie
Sent: Wednesday, August 14, 2013 10:48 AM
To: Stephan Wenger
Cc: [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).