Subject: Consensus? IPR rights and all that

From: Harald Tveit Alvestrand <[email-masked]>
Date: Mon, 06 Dec 2004 10:29:11 +0100

Hi folks,

it seems that we are drawing close to a consensus here:

- Access to data that the IETF has created and needs to function is a 
paramount basic principle. Not to be compromised. So it needs to go VERY 
plainly into section 2.2 "principles".

- Access to software is a very-nice-to-have, but it's only critical if not 
having it limits our ability to effectively access the data. And 
open-source is a quite-nice-to-have; we see a number of advantages in doing 
things that way, but there may be cases where other considerations apply. 
So this belongs in the document, but under "advice", not "principles".

So - I'd like to propose a specific text change to address that:

Replace the current section from 2.2 that says:

   6.  The right to use any intellectual property rights created by any
       IASA-related or IETF activity may not be withheld or limited in
       any way by ISOC from the IETF.

with the following:

   6.  The IASA, on behalf of the IETF, shall have an irrevocable,
       permanent right of access and later use to all data created
       in support of the IETF's activities, including
       the right to disclose it to other parties of its choosing.

And in section 3.1 "IAD Responsibilities", add after paragraph 4 ("The IAD 
negotiates service contracts"):

  The IAD is responsible for ensuring that all contracts give the IASA
  and the IETF the rights in data that is needed to satisfy the principle
  of data access.
  This is needed to make sure the IETF
  has access to the data it needs at all times, and that the IASA can
  change contractors when needed without disrupting IETF work.
  If software is developed under an IASA contract, the software should
  remain usable by the IETF beyond the terms of the contract; this may
  be accomplished by IASA ownership or an open source license; an open
  source license is preferable. The IAD will decide how the interest of
  the IETF is best served when making such contracts.

Note: I have tried to write the sentences above without using any of the 
legal terms "copyright", "ownership" or "work for hire" - these are all 
terms of art that I know I don't fully understand, and I believe it's 
possible to state the principles without using those terms.

Reasonable?

                     Harald

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---

From: Brian E Carpenter <[email-masked]>
Date: Mon, 06 Dec 2004 11:35:17 +0100

Harald Tveit Alvestrand wrote:
> - Access to software is a very-nice-to-have, but it's only critical if 
> not having it limits our ability to effectively access the data. And 
> open-source is a quite-nice-to-have; we see a number of advantages in 
> doing things that way, but there may be cases where other considerations 
> apply. So this belongs in the document, but under "advice", not 
> "principles".
> 
> And in section 3.1 "IAD Responsibilities", add after paragraph 4 ("The 
> IAD negotiates service contracts"):
> 

Reasonable, but I want to be sure that the data rights also include
rights to, for example, the domain name ietf.org. Some legal person should
advise on how to state that.

     Brian

---

From: Henrik Levkowetz <[email-masked]>
Date: Mon, 06 Dec 2004 12:11:12 +0100

on 2004-12-06 10:29 am Harald Tveit Alvestrand said the following:
...
>        the right to disclose it to other parties of its choosing.

Works for me, although note that this text covers less material than
the original one.  Does it now cover all it needs to cover? (Brian
mentions domain names; there may be other IPR that should be covered,
too, even if there's nothing that comes to mind right now ...)

>   the IETF is best served when making such contracts.

This works for me.

	Henrik

---

From: Margaret Wasserman <[email-masked]>
Date: Mon, 6 Dec 2004 07:00:32 -0500

>  and the IETF the rights in data that is needed to satisfy the principle

Maybe:

The IAD is responsible for ensuring that all contracts give the IASA 
and the IETF the data access rights that are needed...?

Margaret

---

From: Carl Malamud <[email-masked]>
Date: Mon, 6 Dec 2004 04:12:36 -0800 (PST)

... 
> advise on how to state that.

How about "all data and other intellectual property"?

Carl

---

From: Harald Tveit Alvestrand <[email-masked]>
Date: Mon, 06 Dec 2004 13:20:29 +0100

--On mandag, desember 06, 2004 04:12:36 -0800 Carl Malamud <[email-masked]> 
wrote:

>> rights to, for example, the domain name ietf.org. Some legal person
>> should advise on how to state that.
>>
>>      Brian
>

that works. If we want to make sure we include the domainname thing, 
"created" should be "created or required for work".

We're not creating the domainname...... I hope...

---

From: Brian E Carpenter <[email-masked]>
Date: Mon, 06 Dec 2004 13:25:31 +0100

Margaret Wasserman wrote:
> The IAD is responsible for ensuring that all contracts give the IASA and 
> the IETF the data access rights that are needed...?

"rights in data" seems to me to cover more than just access;
we want the IETF to *own* the data, surely?

Ask our lawyer...

     Brian

---

From: Harald Tveit Alvestrand <[email-masked]>
Date: Mon, 06 Dec 2004 13:29:01 +0100

> we want the IETF to *own* the data, surely?

"ownership" is too slippery a term for me.

> Ask our lawyer...

I will.

                Harald

---

From: Scott W Brim <[email-masked]>
Date: Mon, 6 Dec 2004 13:41:57 +0100

> and the IETF the data access rights that are needed...?

I believe you want the data itself?

---

From: Harald Tveit Alvestrand <[email-masked]>
Date: Mon, 06 Dec 2004 13:47:00 +0100

> I believe you want the data itself?

Not quite... I want all the data, all the time, as they are being changed; 
a dump once a year or at end-of-contract is not what I think we want.
I think "access" is a better term for that than "data" alone.

                 Harald

---

From: Leslie Daigle <[email-masked]>
Date: Mon, 06 Dec 2004 14:26:35 -0500

I think this mostly works, though a couple of comments, in-line:

>  the IETF is best served when making such contracts.

This reads to me like the IAD can choose to have that software owned by
the IETF or open sourced, but nothing else.

And I think that flies if, and only if, such things as providing sums
of money to ensure that a service provider updates their own software
to meet our specified needs (e.g., something mundane like a sort
order on attendance records) is not ever considered "software developed
under an IASA contract".

Is it still English, and does it still scratch the itch for others,
if the 2nd to last sentence is broken up and changed (borrowing from
Carl's suggestions):

Whenever reasonable, if software is developed under an IASA contract
it should should remain usable by the IETF beyond the terms of the
contract.  This may be accomplished by IASA ownership or an open source
license; an open source license is preferrable. The IAD will decide how
the interest of the IETF is best served when making such contracts.

Leslie.

-- 

-------------------------------------------------------------------
"Reality:
      Yours to discover."
                                 -- ThinkingCat
Leslie Daigle
[email-masked]
-------------------------------------------------------------------

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From: Bob Kahn <[email-masked]>
Date: Mon, 06 Dec 2004 21:41:00 -0500

Harald,

I am enroute back to Washington at the moment, but did want to comment on 
IP matters.

I think it fair to state in the document what the IETF thinks appropriate 
for it to manage its own affairs going forward, but one of the matters we 
will have to work out is the fact that there is considerable IP generated 
over the past almost twenty years. At present, CNRI owns most of this IP, 
but the US Government may have certain continuing rights in the data as well.

As you know, I have committed publicly to working with the IETF on the 
administrative restructuring issues. Over the coming year, I hope we can 
work out how best to handle matters such these, but at best the document 
ought to recognize this fact of life and that it will be necessary to 
address these matters in due course going forward.

bob

At 04:29 AM 12/6/2004, Harald Tveit Alvestrand wrote:
>apply. So this belongs in the document, but under "advice", not "principles".
>

---

From: "JFC (Jefsey) Morfin" <[email-masked]>
Date: Tue, 07 Dec 2004 05:19:02 +0100

>but the US Government may have certain continuing rights in the data as well.

If there a break down of who is supposed to owe what? I thought all the 
IETF IP rights were consolidated under ISOC? What does belong to the USG? 
Who is owning IP rights on the IANA data?
jfc

---

From: [email-masked]
Date: Tue, 7 Dec 2004 07:56:54 +0100

I understand that there may be conflicting claims on the current IPR, 
but isn't the document about the future and about the conditions under 
which new sw, tools and data would be contracted.  I don't understand 
why a discussion of past IPR, or the claims on its ownership, would be 
a subject for this BCP.

Or, is the suggestion, to put a statement in somewhere that the IASA is 
responsible for negotiating to obtain the same rights on all relevant 
IPR created in the past that it requires for all future IPR.

a.

On 7 dec 2004, at 03.41, Bob Kahn wrote:

> Harald,
>
> I am enroute back to Washington at the moment, but did want to comment 
> on IP matters.
>
> I think it fair to state in the document what the IETF thinks 
> appropriate for it to manage its own affairs going forward, but one of 
> the matters we will have to work out is the fact that there is 
> considerable IP generated over the past almost twenty years. At 
> present, CNRI owns most of this IP, but the US Government may have 
> certain continuing rights in the data as well.
>
> administrative restructuring issues. Over the coming year, I hope we 
> can work out how best to handle matters such these, but at best the 
> document ought to recognize this fact of life and that it will be 
> necessary to address these matters in due course going forward.
>
> bob
>
>> paramount basic principle. Not to be compromised. So it needs to go 
>> VERY plainly into section 2.2 "principles".
>>
>> - Access to software is a very-nice-to-have, but it's only critical 
>> if not having it limits our ability to effectively access the data. 
>> And open-source is a quite-nice-to-have; we see a number of 
>> advantages in doing things that way, but there may be cases where 
>> other considerations apply. So this belongs in the document, but 
>> under "advice", not "principles".
>>
>> And in section 3.1 "IAD Responsibilities", add after paragraph 4 
>> ("The IAD negotiates service contracts"):
>>
>> Note: I have tried to write the sentences above without using any of 
>> the legal terms "copyright", "ownership" or "work for hire" - these 
>> are all terms of art that I know I don't fully understand, and I 
>> believe it's possible to state the principles without using those 
>> terms.
>>
>> Reasonable?
>>
>>                     Harald
>>
>>
>>

---

From: Harald Tveit Alvestrand <[email-masked]>
Date: Tue, 07 Dec 2004 08:30:24 +0100

Dr. Kahn,

I am sure that if we so desire, we can keep laywers entertained for several 
years sorting out the ownership of reserves, data and systems created using 
funds from IETF meeting fees. But we should not allow this potential for 
trouble prevent us from making a clear picture of what we want to achieve 
going forward.

Our experience with Foretec, where (for instance) our request for a 
database dump of the I-D tracker has been stonewalled for more than a year, 
was indeed a reason for trying to establish the principle of data access 
firmly going forward.

My reluctance to mention the word "ownership" in our principles is, among 
other things, based on a desire to be able to negotiate mutually acceptable 
solutions to problems like the one you mention - a desire I am sure you 
share.

The IETF's ability to use the data it needs to function, now and going 
forward, is a principle that I am not willing to compromise on.

What the formalities are that allow this to happen is something I think you 
and I should allow people with more experience in legal and financial 
matters to sort out, without placing more restrictions on them than are 
absolutely necessary.

                      Harald

---

From: Carl Malamud <[email-masked]>
Date: Tue, 7 Dec 2004 06:04:36 -0800 (PST)

> but the US Government may have certain continuing rights in the data as well.

Dear Bob -

I think I'd like to address this issue since you've brought it up.  In case
you haven't had a chance to read my interim report, you will find some more 
details on this subject:

http://public.resource.org/adminrest/interim_report/

I was very careful in that report to give a variety of options that the
community might wish to pursue.  However, there was one very concrete
recommendation:

    "In my opinion, Foretec should make a copy of the source code and 
     regular dumps or phpmyadmin access to the IETF's datatracker available 
     to the IETF community  as soon as possible."

Note the word "should" which has very precise meaning in the IETF.

As you know, I've spent a great deal of time looking into how the IETF
operates.  As part of my due diligence, I read very carefully the
agreements that CNRI had with the US government, pulled the CNRI tax
returns, and looked at the financials you've furnished to the
IETF leadership.  I went through a similar process with other
organizations involved, so I think I've got a pretty good feel for 
how the IETF has been financed and operated over the past 18+
years.

My conclusion is pretty simple: CNRI and Foretec do *NOT* have any
ownership interest in "the IETF". You own your physical assets
such as computers, but you do not own any intellectual property
related to the IETF.  None. 

In the particular case of the datatracker, that has been developed 
during a period where IETF meeting attendees have been paying in 
around $2 million per year to CNRI.  Those meeting fees paid for the 
meeting and the operation of the IETF secretariat.  We paid for that 
datatracker and Al Vezza's repeated refusal to provide a dump of the 
database to the IETF because of proprietary concerns is just plain wrong.

When I hear "ownership interests" get tangled up in the discussion of
how an international public community like the IETF will move
forward, I've got a problem.  CNRI has operated the secretariat for
18 years, and everybody has repeatedly said how grateful the community
is for that service.  But, it is just that: a service.  Any
assets created were public assets and are held in trust for the
community.

For example, CNRI was kind enough to register ietf.org for the
community.  But, you don't "own" that domain name.  You registered
it on behalf of the community.  Had you asserted ownership on that
name, I'm *sure* there would have been extended discussion of the
topic on the IETF list.  The same goes for the trademark registration
you made for the term "IETF Secretariat": that is simply a prudent
defensive measure you did on behalf of the community to make
sure that "bad guys" didn't do things with the term.

> address these matters in due course going forward.

The "fact of life" is that the community has, after extended
discussion in an open process, decided to restructure administrative
activities so that the Internet Society will house the IASA
and work with contractors such as Foretec.  As you've pointed out,
we will have to work carefully to make sure that a transition is smooth and
and careful.

But, ownership should not be an issue.  Any IETF assets that
may have been created by CNRI are simply work for hire: we paid
for those assets out of our pockets.  I appreciate your statements
that CNRI has helped subsidize the IETF at times and that this
isn't a big money maker, but I'd also point to the US$16,920,928
we paid in meeting fees from 1997 to 2004.  Property concerns
should be *off the table* as we "address these matters in due course
going forward." 

Best regards,

Carl

---

From: Robert Kahn <[email-masked]>
Date: Tue, 07 Dec 2004 17:45:48 -0500

The most helpful aspect of this exercise is that is is helping to define 
with the IETF what it wants to happen going forward. With good will and a 
certain amount of professionalism on all sides, I don't think it should be 
too hard to get from here to there.

I agree that this is about the future, but there are various aspect of any 
transition that must deal with current practicalities. Omitting discussion 
of past IPR in the document is probably desirable, as you indicate, 
provided that the realities of a transition from what has been to what will 
be are recognized, hopefully understood, and dealt with accordingly in the 
process.

bob

At 01:55 AM 12/7/2004, [email-masked] wrote:

>I understand that there may be conflicting claims on the current IPR, but 
>isn't the document about the future and about the conditions under which 
>new sw, tools and data would be contracted.  I don't understand why a 
>discussion of past IPR, or the claims on its ownership, would be a subject 
>for this BCP.
>
>responsible for negotiating to obtain the same rights on all relevant IPR 
>created in the past that it requires for all future IPR.
>
>a.
>

---

From: Dean Anderson <[email-masked]>
Date: Wed, 8 Dec 2004 00:38:22 -0500 (EST)

Not to interject specifics into a near consensus, but wouldn't it be 
reasonable to require that either:

1) Software to access and alter data be open-source and provided, 

or 

2) data be in a well-defined and documented format for which software to
manipulate the data can be promptly produced (e.g., ASN.1, CSV, XML, Fixed
Length Field etc). Examples: Distribution of genome data is in ASN.1,
distribution of the LERG (Local Exchange Routing Guide -- distributed to
all LECs, CLECs) which is in both MS and fixed length field.  

As long as there is clear, specific, and accurate documentation for the 
file format, access usually isn't a problem.  Indeed, one might think of 
source code as concise documentation. 

		--Dean

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From: Harald Tveit Alvestrand <[email-masked]>
Date: Wed, 08 Dec 2004 07:51:28 +0100

I think both are reasonable tools for implementation of the principle.