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Re: [Trustees] Last Call for Comments: Proposed work-around to thePre-5378 Problem

2009-02-08 19:48:12


--On Sunday, February 08, 2009 5:52 PM -0500 "Contreras, Jorge" <Jorge(_dot_)Contreras(_at_)wilmerhale(_dot_)com> wrote:

John - thanks for that clarification.  Would "elect" be less
value-laden than "wish"?

Jorge,

Makes no difference at all. Let me try this again, uncluttered by the distinctions I was trying to make the last time (distinctions that are relevant, but not to this text)...

* The submitting author has no choice other than compliance with 5378 for any new text he or she generates. That is regardless of what he or she wishes, would elect if there were a choice, or fantasizes about late at night.

* The contributor (note lower-case) of text that came into existence prior to 5378 also had no choice at that time. He or she could not decide to confirm to 5378 because there was no 5378. Such a Contributor may now elect to come forward and transfer additional rights to the text (or may wish to do so and get around to it some day), but neither of those activities has anything to do with the workaround in question.

* For any document containing text that the submitting author knows (or even believes) existed prior to 5378, that author has exactly two choices about the composite document. He can assert that, of his own personal knowledge, all of the necessary rights have been obtained so that the document can be published fully under 5378 and that the Trust can trust (sic) him sufficiently to issue licenses under 5377 that do not contain significant disclaimers about rights the IETF Trust may not have to grant. Or she, being smarter about these things (or at least more conservative) may choose to post the document with the workaround text. There is, again, really no wishing or election about this.

One could, I suppose, say that the submitting author choosing the workaround "wishes" to avoid making assertions about the actions of others that she cannot verify and assuming levels of liability that could be quite significant in practice and hence will not assert that there is no guarantee that the document can be used for anything other than IETF purposes. In such a statement, "elects" would, indeed, be better than "wishes". But note that it is a different statement than the one in the draft, at least as I read the latter. Here no assertion is made at all about what the submitting author would prefer (about which we don't care) but only about what the submitting author cannot or will not assert to be true about the rights to the work of others.

If the submitting author cannot or will not make those assertions, then the consequence is that the document cannot be guaranteed to be available for other than IETF purposes. But that is an inevitable consequence, not the result of a submitting author choice about licensing or use of the document. Moreover, submitting authors cannot impose that limitation on their own new work if it is intended for IETF processing or as an IETF Contribution, no matter how much they might "wish" to do so -- their own new work is bound by 5378 (if they don't want to be bound by 5378, the now-updated Note Well effectively tells them to drop out of the IETF and certainly to stop making anything that could be counted as a Contribution). The only decision they can make in practice is a determination of whether it is reasonable to believe that the IETF Trust has rights equivalent to 5378 to _all_ _other_ contributions to the document (and reasonable to whatever level of confidence they consider appropriate). If they conclude that it is not reasonable, then they have to invoke the workaround.

No choice, no wishes, no election, no discretion at all about anything other than the reasonableness of the "Trust already has all of the needed 5378 (or 5738-like) rights at the time the document is submitted" assumption.

   john




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