--On Wednesday, 17 December, 2008 20:29 -0800 Lawrence Rosen
<lrosen(_at_)rosenlaw(_dot_)com> wrote:
Reply below. /Larry
...
[LR:] I am asking as an attorney and IETF participant (we're
all individuals here, I've been told, with individual
opinions) who is anxious to understand why so many people on
here are worried about copyright infringement and are seeking
to protect copyrights they don't even have the honesty to claim
outright. I care about IETF specifications in this email
thread, not about any specific clients. As to whether I might
represent one or more clients on this issue, my lips are
sealed.
To answer a slightly different question, but one that may be
more useful, the IETF was propelled along the path of specific
policies, with the original ones clearly recognizing the
"installed base", because of credible threats to block work
unless everything were rewritten from scratch to (at least)
remove all of the author's sentences. The situation I remember
best involved work built on the author's text, but the WG
consensus differed from the author's concepts in some ways he
considered fundamental. I don't recall the details, but I
believe that the threats extended at least into cease and desist
letters, not just the usual profile of posturing, noise, and
idle threats.
I think it would be fair to summarize the thinking of the
powers-that-be at the time as just not wanting to be the target
of that kind of interaction and process, much less any legal
action that might follow, regardless of estimates about who
would prevail in such an action. You are, of course, entitled
to any opinions you may have about whether that was the right
decision and whether it was properly implemented. However,
because it appeared nearly certain that any specific and
well-funded legal effort would result in significant delays to
the IETF's work, a large fraction of the community who were
close to the issues --probably large enough to constitute rough
consensus-- because extremely risk-adverse, where the perceived
risk involved the "opportunity" for lost time, service of
various documents and responses, preparation of other documents,
interaction with courts, etc., rather than more specific
questions about who would ultimately prevail.
My apologies for not supplying specific names, dates, and
descriptions of the incident, but there have also been threats
of libel actions if the positions of the actors were not
represented accurately (see risk-adversity and definition above)
and, independent of that, I have no wish to resurrect the ghosts
of that incident in the magical time of year (or ever). But we
have certainly had people in the community who have tried to use
copyright in document text to impede the IETF process and to
strike out against people and actions of which they disapproved.
Finally, for better or worse, your belief that "Both are
absolutely essential for implementation of open standards" does
not represent the consensus in the IETF community, or at least
has not represented it so far, unless you use the term "open
standards" in a way that makes it tautologically true.
Certainly the FOSS community has managed to implement standards
from, e.g., ITU, JTC1, and several ISO member bodies whose text
is as or more restricted than anything the IETF has proposed.
Perhaps that has been done on the basis of advice from you or
others that no one is likely to actually try to enforce the
intrinsic or claimed rights, but the organizations that hold
those rights have not been persuaded to change their policies or
claims as a result.
I see a problem here, not necessarily because of claims someone
might assert but because of claims that 5378 requires authors to
assert. The latter turns this into a series of decisions by
individuals and, in some situations, their employers. If even a
few of them are sufficient adverse to the risk of getting tied
up in legal proceedings, we end up in exactly the situation that
we started down the path of IETF IPR policies to avoid --
significant delays to, or disruption of, the orderly progress of
the standards process. Unless you are willing to give us legal
advice on which we can rely (and presumably, with it, assurances
that doing so would not put you in a potential conflict of
interest with anyone [else] who might have retained you), your
trying to make estimates of the likelihood of someone asserting
claims (and/or prevailing if they did) don't help me or the IETF
very much.
But the core of the issue I'm having with your note is that I
believe we have gotten ourselves into a situation that requires
a solution in the near term. I see reintroducing an argument
that everything should just be free (presumably as in "free
beer") -- an argument that IETF WGs have rejected several
times-- and the rehashed discussion that would follow as a
distraction and impediment to getting to such a solution, not a
help on the critical path to making progress. YMMD, of course,
but let's be explicit about what we are looking for.
john
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