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RE: RFC 5378 "contributions"

2009-01-15 10:08:43
All -- It's been pointed out to me that I may have been answering the
wrong question, or at least only a subset of the full question, in my
posting of last night, so I'll clarify below in some detail.

But first, for those whom I haven't met before, you should know that I'm
a lawyer -- the lawyer who has been advising the Trust on these issues.
I did help produce the work-around proposal that Ed circulated last
week, and am also one of the co-authors of RFC 5378, so I take some of
the blame for starting this whole mess in the first place.  This being
said, I'm not putting forward an "official" position of the Trust, nor
has the below message been vetted by the Trust.  It's simply my attempt
to clarify my earlier response, which someone (not a Trustee) suggested
that I send.

1.  It's correct that "Contribution", as defined in RFC 5378, includes
e-mail exchanges, oral discussions and any other contribution to the
IETF process.  This definition has existed since RFC 3978 and the Note
Well that has been published for the past several years.  5378 did not
make a change here.

2.  Therefor, the same rules that apply to I-D submission also apply to
the other, less formal, types of contributions.  John and others are
correct in drawing this conclusion.

3.  The IETF (meaning the collective activity of participants who
interact on standards-development activities under the aegis of the
IETF) has a perpetual, irrevocable right to use all Contributions in the
IETF Standards Process.  This right applies to all IETF Contributions,
whether made under the rules in existence under 5378, 3978, 2026 or
earlier.  That was my response to Randy Presuhn last evening.

4.  However, various people have identified a bug in 5378 that relates
to "hybrid" Contributions -- those that contain both pre-5378 and
post-5378 material.  In short, contributors can't assure the Trust that
pre-5378 contributions meet all the requirements of 5378.

5.  The Trust's proposed work-around deals with this issue by allowing
Contributors to flag hybrid contributions.  If the flag is in place,
then licenses outside the IETF Standards Process are not allowed, and
the set of rights being granted for the pre-5378 and post-5378 material
becomes equivalent (i.e., full use within the IETF Standards Process,
plus a couple of other rights for code, etc.)  As a result, if the flag
is in place for a Contribution, the Contributor can make the warranties
required by 5378 without worrying about any violation with respect to
the included pre-5378 material.

6.  While this flagging approach seems to be workable (from what I've
heard) for I-Ds and other "formal" contributions, it would not be easy
to manage for less formal contributions, such as e-mails and especially
oral statements.  That's the issue that John, Theodore and others have
been elaborating recently, and I do agree.

7.  Unfortunately, the Trust's ability to affect 5378 is limited to the
inclusion (and tweaking) of the legends that are included in I-Ds and
other written documents.  5378 does not give the Trust a broader power
to alter the rights granted under 5378 or the warranties required by
5378.  Thus, the proposed workaround, with the flag applied to submitted
I-Ds, is probably as far as the Trust can go at this point (though I'm
open to suggestions).

8.  Ultimately, a fix is needed to 5378.  But, in the interim, I was
hoping that the proposed work-around would enable *most* IETF work to
continue, and also hope that, while technically correct, the possibility
of someone being sued for breaching a warranty with respect to an oral
statement made at an IETF meeting is a very remote risk that would not
inhibit IETF work.

9.  This being said, I do agree that a permanent solution to fix 5378 is
needed soon.  This solution should address both formal and less formal
types of Contributions, and, as Fred Baker and others have urged,
require a minimum of effort on the part of IETF contributors. 

Thanks,
Jorge Contreras
 

-----Original Message-----
From: ietf-bounces(_at_)ietf(_dot_)org 
[mailto:ietf-bounces(_at_)ietf(_dot_)org] On 
Behalf Of John C Klensin
Sent: Thursday, January 15, 2009 7:10 AM
To: Andrew Sullivan; ietf(_at_)ietf(_dot_)org
Subject: Re: RFC 5378 "contributions"

I have to agree with Andrew and Tom.

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
reading of 5378's definition of "Contributor" means that I have
to go back, find that person, and get permission to post that
draft today (without a disclaimer), just because, in making the
posting, I'm asserting that rights are in place that were not
granted when the Contribution was made. 


    john

* I've said this several times before, but neither common sense
nor fairness permits the IETF to say "RFC 5378 became effective
when it was published the first week in November, therefore any
comments, contributions or drafts that appeared after that date
constitute grants of permission under 5378's rules" ...
especially in the absence of any specific notice to that effect
on relevant mailing lists, the presence of a Note Well in the
IETF registration packet that referred to the old rules, etc.
Those of us who trust that common sense interpretation (or who
have been given legal advice that the odds of a judge accepting
an early-November date contrary to that interpretation are
fairly small) need to behave as if we cannot assume that
Contributions made before late November or early December do not
imply permission to use the Contributions under 5378 rules.

--On Wednesday, January 14, 2009 22:52 -0500 Andrew Sullivan
<ajs(_at_)shinkuro(_dot_)com> wrote:

On Wed, Jan 14, 2009 at 08:33:35PM -0500, Contreras, Jorge
wrote:
No, absolutely not.&nbsp; Use of pre-5378 materials in the
IETF standards process has never been an issue, only use
outside the IETF is problematic (ie, allowed under 5378 but
not the earlier rules).

Why is the actual situation of the use relevant?
"Contribution" is defined in section 1a of RFC 5378, and it
plainly says that mailing list posting and anything one says
at the microphone in any meeting is included in the
definition.  In section 5.1, RFC 5378 says that, by submitting
the Contribution, the Contributor is "deemed to have agreed
that he/she has obtained the necessary permissions" to enter
into the agreement allowing the IETF to use the Contribution
according to the new rules.

So, just because the Contribution doesn't _happen_ to end up
in use outside the IETF by virtue of the IETF's actions does
not mean that a Contributor doesn't have to obtain the rights
to allow such re-use.  I believe that the _intent_ of 5378 is
...

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