From: Scott Brim [mailto:swb(_at_)employees(_dot_)org]
Sent: Thu 01/11/2007 9:35 AM
To: ietf(_at_)ietf(_dot_)org
Subject: Re: Patents can be for good, not only evil
... because as has been stated several times, it is rare that a WG
even knows the dimensions of possible IPR issues before they have got
their ideas sorted out.
I have never been involved in the formation of a working group where there were
no candidate proposals before the first BOF was held. And in every case where
someone has made a proposal there has been a pretty good idea of what IPR
claims might affect it.
The only exception to this was SACRED where the whole point of the Working
Group was to try to develop a technology that was not encumbered. When they
discovered that this was not going to be possible they gave up. So even in
SACRED where the state of IPR was in doubt the participants knew what their
objective was.
IPR should be discussed at *every* stage. Just because you discuss it
in a BOF doesn't mean you can mandate it out of existence later.
All that I am proposing to rule out of scope is discussion of whether the IPR
terms that would be acceptable (or not). The question of whether a proposal was
effectively encumbered (or not) and thus incompatible with the charter would
still be open for discussion.
Also out of scope would be questions of the form 'are the terms offered by Very
Large Corporation compatible with the MeeToo Open Sauce License which I have
just made up to be deliberatively obstructive'.
If a WG was chartered with an open IPR clause, allowing RAND it would not be in
scope to subsequently object to the encumbered technology on those grounds.
The point is not that discussion of IPR is prohibited entirely, the point is
that you can't move the goalposts after the fact. If a group is chartered as
RAND and someone either works out a scheme that is unencumbered or is offered
on W3C-RF terms they are almost certain to win the discussion in the Working
Group.
What I am trying to do here is to set up the rules of the game so that they
minimize repetative condition and create the optimal incentives for Patent
Rights Holders to offer acceptable terms.
Or perhaps one that doesn't require a license at all. RANDZ is not
the best outcome ... and yes, you could make statements like that in
the charter (some have), but that doesn't mean a requirement is
appropriate.
Actually I have long been an advocate of Patent Access as opposed to Patent
Licensing. As I pointed out in the wake of the MARID fiasco, all the parties
want is to avoid being sued. Microsoft's Open Promise effectively avoids the
need for a license.
The point is that we need a standard set of terms such as W3C-RF. Rather than
go through the business of renegotiating those terms yet again I would prefer
to simply adopt them as is. I would then like to see the IETF and W3C jointly
ceed change control over the terms to a body that is specifically equiped to
dicuss such legal issues. This could be a body like Creative Commons or
possibly some other body like the E-Terms group that Michael Baum tried to set
up in the early 90s.
I don't want this to continue as an IETF flamewar amongst people who really
know very little about the legal issues. Except for Laurence Rosen, none of us
are lawyers. I want to see folk like Larry Lessig and Joe Alhadeff and the
Microsoft and IBM folk also hammering these terms out. Neither IETF or W3C is
that forum but we can certainly help to create that forum or repurpose an
existing one.
And yet they do, when people choose a slight encumbrance in order to
gain utility within a certain scope of use. It's all about tradeoffs
that can only be made once you know exactly what you're trading.
I don't think that there is such a thing as a slight encumberance. Unless the
IPR terms are completely specified any implementor can only rely on 'reasonable
and non descriminatory' - whatever that might mean.
Some standards organizations do in fact negotiate detailed IPR terms, the DVD
folk for exmple. The IETF does not and cannot as we don't represent our
employers and don't have a means of voting.
If we have two technologies on offer, A and B from different parties
I want to be able to set up a bidding war between the parties to
offer the most favorable terms.
Good idea ... but afaict most IPR claimants will want to know clearly
how their IPR intersects with the technology being standardized before
they play. That means you can't do this until late in the process.
Absolutely, you cannot get agreement until the end but you can specify the
acceptable terms for the agreement before that point.
At the moment we have a three way intesection with the third unknown being what
IPR terms will be acceptable and from which parties.
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