On Thu, Jan 15, 2009 at 08:24:08AM -0500, Marshall Eubanks wrote:
On Jan 15, 2009, at 7:09 AM, John C Klensin wrote:
If someone stood up in a WG prior to whenever 5378 was
effective* and made a suggestion of some length, or made a
lengthy textual suggestion on a mailing list, and I copied that
suggestion into a draft without any paraphrasing, a plain-sense
John, I am not a lawyer, you are (AFAIK) not a lawyer, and if the
IETF counsel says otherwise, I would just let this one lie.
The reason why I do not agree with this reasoning is that these
rights are claimed through authorship. If I do not claim authorship
in your draft because you use my text, when I have ample opportunity
to do so, then I have (in my opinion) effectively lost them,
especially in this context (where there is a note well, an
assumption of joint contributions, etc.).
So it's a problem if every single I-D and RFC author is going to have
to consult their own counsel before deciding that won't get into legal
trouble when guaranteeing that all of their text is appropriately
licensed.
So whether or not I am I lawyer, and whether or not the Berne
Convention very clearly states that copyright rights are automatically
enforced, and do not need to be explicitly claimed, and whether or not
the Note Well is enough to override the Berne Convention, John's
position that he wants to be conservative enough not to make
guarantees that might expose him to legal liability is a reasonable one.
I don't think it's fair to say, "I'm not a lawyer, and you're not a
lawyer" so you should do something which you fear exposes you to legal
risk --- especially when all of the IP training many of us have gotten
have basically told us that the Berne Convention explicitly states
that you don't have to claim copyright to get copyright protections....
Yes, I am sure that there are corner cases here, but one thing
I have found about legal affairs is that there are always corner cases.
No legal matter is ever sewn up 100%, and judges actually do take into
consideration when things are done "on advise of counsel." We have it,
we should use it.
Has the IETF Counsel actually given explicit legal advice to all IETF
contributors (which would have legal liability implications for the
IETF Trust if said advice was wrong, as I understand things) that the
Note Well to guarantee the transfer of RFC 5378 rights for text taken
from IETF mailing list discussions or at an IETF meeting?
Better yet would be if the IETF Trust was willing to ***indemnify***
I-D and RFC authors that they are on firm legal ground for asserting
that they have all RFC 5378 rights when they take text from an IETF
mailing list discussion or IETF face-to-face meeting, on the basis of
the Note Well. After all, it is the IETF Trust which is requiring I-D
and RFC authors to make this legal guarantee, so one might assert that
in a fair world they should take the legal risks associated with that
guarantee.
- Ted
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