--On Wednesday, 17 December, 2008 15:23 -0800 Randy Presuhn
<randy_presuhn(_at_)mindspring(_dot_)com> wrote:
Hi -
From: "John C Klensin" <john(_at_)jck(_dot_)com>
To: "Randy Presuhn" <randy_presuhn(_at_)mindspring(_dot_)com>; "IETF
discussion list" <ietf(_at_)ietf(_dot_)org> Sent: Wednesday, December
17, 2008 2:40 PM
Subject: Re: IPR Questions Raised by Sam Hartman at the IETF
73 Plenary
...
What gives your WG the ability to function is 5.4, where the
Trust gives back to the IETF participants what the Trust
received under 5.1 and 5.3. But they can't give back what
they don't have, so, if your WG is required to derive its
permission to do work from 5.4 and a previous author takes a
walk rather than making the 5.1 guarantees and 5.3 transfers
_to the Trust_...
...
Ok, so if my understanding was incorrect, at what point must we
stop work until this is corrected?
Here is where you are on your own. In spite of saying that it
sets up binding legal agreements, RFC 5378 says that it isn't
legal advice (about what those agreements mean or anything else)
and that you need to find your own. While some people have
offered the opinion that, since no one is likely to sue, you can
safely just ignore the specifics of that document and proceed as
usual, I assume that no one has promised that is legal advice on
which you can rely either. Since I have already said it on
another list, I can tell you that I've been advised by my
attorney to not post any document for which I'm quite certain
that all prior contributors have made 5378-compliant transfers
to the IETF. But he is far more aware of my circumstances,
circumstances that are almost certainly not the same as yours,
and what he has told me is definitely not legal advice to you or
on which you should rely.
As to dates, opinions about that seem to differ. The WG decided
to not incorporate a date (or description of triggering events)
in the text of 5378, so you can't find a lot of help there.
There is an an analysis of the date issue in
draft-klensin-rfc5378var-02a.txt. Since it lists around a
half-dozen possibilities based on common sense understanding of
the situation (again, not a legal opinion), you should go read
it rather than my trying to paraphrase, but I believe the answer
is "sometime between 10 November and tomorrow". Some attorneys
who have been consulted have mumbled something that sounded like
"depends on when a reasonable person would have known about the
new rules", but mumbling definitely does not constitute legal
advice.
(I can virtually guarantee
that we will not get explicit permission from every individual
named in an acknowledgement section of one of the antecedants
of the documents we're updating. Paraphrase the whole thing?
Ain't gonna happen.)
a) We cannot submit any more I-Ds until this is fixed
b) We can continue to submit I-Ds, but cannot hand off to
the IESG
...
A common-sense reading of 5378 (not legal advice, etc., etc.)
says that it applies to all Contributions and that you aren't
supposed to be making one of those unless it conforms to the
requirements of 5378. The definition of a Contribution [RFC
5378, Section 1(a)] is pretty much the same as it was in 3978
and earlier and very explicitly includes text intended for
posting in I-Ds. I can't give you a legal opinion about what
you can or cannot do, but it is fairly clear that the cutoff
point applies to I-Ds and not some later step in the standards
process.
I'd be willing to wager that, in its current mood, the WG
would simply disband rather than deal with any of these.
That is the case that scares me, that prompted me to put up an
I-D posing an alternative in the hope that we could swiftly come
to consensus about it (or some other alternative), and get it
implemented and deployed before Bad Things Happen. And WGs
shutting down is about the worst thing I can imagine happening
to the IETF (others may, of course, be more imaginative).
z) We stop updating our documents, hand over an existing I-D
without the offensive IPR language, and hope that the
IESG requires no changes, and use RFC errata to deal
with the (minor) problems that we know exist in that I-D.
As I read 5378 (and understand the comments made by one of the
IPR WG document authors, the IETF Chair, and a Trustee or two),
the fact of handing that document over to the IESG would make it
subject to 5378 and would constitute an assertion on someone's
part --perhaps yours as WG Chair-- that all of the 5378 hoops
had been properly jumped through. I would hope that, if the
IESG takes 5378 seriously, they would modify the submission
Checklist to say that explicitly if they have not already done
so. (I don't have a clue where it would leave us if the IESG
decided it didn't want to take 5378 seriously, unless they
translated that into immediately moving it to historic, which I
gather they don't believe they have the authority to do.)
So that escape would probably not work either.
Somehow this seems totally bogus, since the "authors" were all
editors working under the direction of the working group to
produce a work for the working group. If anything, the
transfer should be from the WG (or the IETF) to the trust, not
from the people who were high- stress typists for the WG.
Likewise, the various contributors whose words went into the
collaborative blender were doing so under the long-standing
NOTE WELL provisions, so getting their permission again seems,
well, pointless.
With a "please don't kill the messenger" disclaimer rather than
the "not legal advice one repeated too many times above, 5378
effectively makes the old permissions (from the author to IETF
participants, rather then from the author to the IETF Trust)
irrelevant and consequently requires transfers (of what are a
somewhat different set of rights) to the Trust. You may have
the rights to work on the document (as a residual of the old
rules), but you cannot Contribute it (post as an I-D, send it
out on a mailing list, read it out loud in a WG meeting,...)
unless you get the 5378 rights.
I think that, if I were a WG Chair contemplating either shutdown
or paralysis over this, I'd be having a conversation with my AD
over how to proceed and when. As a long-term observer of IETF
and IESG processes as actually practiced, I believe that there
is ample precedent for the IESG either ignoring the details of
rules or making up new ones when they believe it is sufficiently
important and especially if they have clear consensus that there
is a problem that needs to be solved. So I am not persuaded
that they are helpless to do anything to clear up, or postpone,
this problem. But my opinion on that subject may or may not be
worth much and, absent some other IESG creativity, I think all
of the appeal windows on 5378 or its implementation have closed
(but could be wrong about that).
If you do that, and the discussion sheds any light on how to
work around the problem, I hope you or the relevant AD will
share it with the rest of us -- with one or two notable
exceptions, whom I very much appreciate, the IESG has been
pretty silent since this came up.
john
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