Re: IPR Questions Raised by Sam Hartman at the IETF 73 Plenary

On Dec 18, 2008, at 7:17 AM, Dave Cridland wrote:

> On Thu Dec 18 11:08:09 2008, John C Klensin wrote:
> > 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.
> It could well be that I'm misunderstanding, but that kind of  
> situation would surely fall into "derogatory treatment", ie, the  
> stuff covered by Article 6bis of the Berne convention, or, for UK  
> people, the Copyright, Designs and Patents Act 1988 sections 80-83.  
> In Berne language:
> 	the author shall have the right to claim authorship of the work and  
> to
> 	object to any distortion, mutilation or other modification of, or  
> other
> 	derogatory action in relation to, the said work, which would be  
> prejudicial
>         to his honor or reputation.
>
> And this sounds like, basically, what happened, at least from the  
> perspective of the contributor. Note that moral rights are often not  
> transferrable in various jurisdictions, and certainly aren't  
> automatically transferred anywhere as far as I know - section 11bis  
> seems to prevent that.
> Since these are moral rights, and not copyrights, and they're not  
> mentioned at all by RFC 5378, surely the situation is entirely  
> unchanged by this?
> To put it another way, if the intent here was to avoid a repeat of  
> this incident, then what's needed here is a waiver of moral rights,  
> rather than a license of copyrights, which is beyond my ability to  
> figure out. (I am, incidentally, not a lawyer, for those living in  
> jurisdictions which like to have that in writing somewhere).
I have been involved a little in the US planning for various  
negotiations of the inclusion of webcaster rights in the
WIPO under the Berne convention (I generally oppose what has been  
proposed). At the risk of violating
my mantra ("Engineers should not try and be lawyers"), I do not think  
we should go there or need to go there.
Note that, while the USA is not a signatory to the Rome Convention  
(even though our WIPO negotiators
sometimes seem to like to act like we are), the USA is a signatory to  
the Berne Convention :
http://www.copyrightaid.co.uk/copyright_information/berne_convention_signatories

However, Article 6bis(3) allows national legislatures to determine the  
treatment of moral rights;
the USA has not done so. In fact, moral rights were a major sticking  
point in the US's signing the Berne convention at all.
Under the "Berne Convention Implementation Act of 1988", 17 USC 101,  
Section 2 (2)
"The obligations of the United States under the Berne Convention may  
be performed only pursuant to appropriate domestic law."
The IETF Trust is governed under the laws of the Commonwealth of  
Virginia, a state in the USA, so it is governed by US Law, not the  
Berne convention directly.
In the Berne Convention Implementation Act of 1988, 17 USC 101,  
Section 3 (b)
"(b) Certain Rights Not Affected.--The provisions of the Berne  
Convention, the adherence of the United States thereto, and  
satisfaction of United States obligations thereunder, do no expand or  
reduce any right of an author of a work, whether claimed under  
Federal, State, or the common law--
(1) to claim authorship of the work; or
(2) to object to any distortion, mutilation, or other modification of,  
or other derogatory action in relation to, the work, that would  
prejudice the author's honor or reputation."
If you want more, I would start here : http://www.rbs2.com/moral.htm

I would urge the IETF Trust to stick to US / Virginia law only.

Regards
Marshall



> As another point, by submitting a document as author, I take it I am  
> making the claim that all rights required under RFC 5378 are granted  
> by all contributors, their employers, or estates, as appropriate -  
> does this open me to litigation should a contributor I didn't know  
> about complains? What if someone else submits the document, am I  
> still liable? Where is the record of who submitted the document if  
> not? (Presumably, once the document passes through AUTH48, I must be  
> liable, having given explicit assent to it).
> To put this another way, is contributing a revised document to the  
> IETF now too risky an action to contemplate?
> Dave.
> --
> Dave Cridland - mailto:dave(_at_)cridland(_dot_)net - 
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