Subject: RFP Question for you Jorge... did anyone put a notice of "Responsibility for Copyright Violations" to the Publisher RFP Candidates?

From: "todd glassey" <[email-masked]>
Date: Mon, 14 Aug 2006 14:31:10 -0700

Jorge - Let me ask, who eats a copyright violation claim against the IETF???

Is it the IETF?, the IESG? or is it the Document Publisher - who for a while
longer is ISI? - my bet is that in this case that's ISI because the
publisher has a fiduciary responsibility to address the DMCA Take Down
provisions as an Internet Publisher, or face the music for screwing up when
it happens.

Since I am betting there was nothing about the "assumption of liability for
violations of Copyright Act incidents" in the RFP is the intent to make the
Editor/Publisher of the IETF's Document's the fall-guy for operating the ISP
resource for the IETF without a Take Down Process or  methodology for the IP
Published. My reasons for asking are simple, because if not it seems to me
that the ethical thing to do is that EVERY candidate needs to be notified
"that the IETF takes no responsibility for any laws they break in publishing
the IETF's documents".

I propose the following addition as a disclaimer to the Publisher RFP
responders:
---------------------------------------
WARNING - The IETF is an ISOC sponsored on-line consortia, an international
organization who's publishing policies are determined by consensus. The IETF
carries no internal or executive bonding as a result.The IETF informs you of
this so there is no possible claim of breach or fraud in the inducement by
the IETF's willful hiding of this key fact.

Be advised that neither ISOC nor the IETF have any official policy on DMCA,
the global WIPO treaties or any other IP legislation and you are responsible
for any and all acts which violate those laws.

o-    As the IETF's Publisher, you act as an Internet Service based
Electronic Publisher and as such you bear total responsibility for the
wrongful release of controlled  or trade-secret protected IP, and also for
the Copyright or Patent Disclosure Violations that may occur from time to
time while you edit and publish documents under contract to the IETF.

o- IETF's mail gateway is a 'repeater' and no local copies of submissions
are kept - You acknowledge and agree that the IETF's Email Gateway
automatically is configured to forward submissions (documents for
publishing) to you as a front-end, and that as such the IETF's Email
Clearing Feature is essentially just another Mail Exchanger Node in the path
to get a document to you for review and cleanup prior to your publishing it.
As a clearing house you agree that the IETF does not actually take
possession of the document until you publish it and return the final copy to
the IETF; meaning any and all liabilities are your  Company's alone.

o-    "This isn't Kansas anymore Toto" - This notice is based in that the
IETF cannot absolve you or your Company of legal responsibility for breaking
the US Copyright Act or any of the WIPO Treaty Terms in place globally that
the US and other Nation's have signed to stop the unauthorized publishing of
controlled Intellectual Property"; likewise nor can it protect you from
litigation based in any violations therein.

o-     "Your left holding the bag" - As such, since the IETF bears no
responsibility for any acts where IP is published through you please consult
your own Counsel to properly understand and determine if these risks
eliminate your participation in the program.

Thanks for your interest in the IETF's Publishing Operations RFP
----------------------------------------

By the way - IMH "lay" O the only ones that could possibly survive screwing
up are ISI because of their University Sponsorship.

Todd Glassey

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---

From: Todd Glassey <[email-masked]>
Date: Wed, 16 Aug 2006 07:32:30 -0700 (GMT-07:00)

Dean, (cross posted for you and my response)
I hear what you are saying, however as the Chief Scientist for one of the Larger Sun Reseller's here in the Silicon Valley I also have created oh maybe half a dozen ISP's in the Western US and I have had to deal with this issue personally since I and some of my customer's have been a victim of both Patent and Copyright Abuse. 

Its no where near as simple as it looks and not understanding or dealing with the issues could be fatal to the IETF in the longer run I think. 

The issue the IETF and its mirror's face is that RFC's are published with and "Any and All Uses Forever" license and with that printed on the front of each published document - there is NO WAY to recall or prevent that document from being used based on that. In fact the IETF's recalling ANYTHING would breach the use license that it so liberally produced I would think.

And from coronate.com - I grabbed the following two paragraphs...

In the EU:
------------
"Under the European E-Commerce directive internet hosting providers risk liability for apparently illegal content from their customers. Once they are notified, they should take immediate action to block or remove the content."

In the US:
------------
As a Common Carrier (which ISPs are) given proper information, the ISP has to follow DMCA regulations, which basically outline the procedure as this:

- Request in proper form recieved (includes "Digital Signature", which is basically someone saying "I am the licensed copyright holder of this work")
- Person hosting/posting copyrighted work given 3 day notice to remove or issue counter-claim 
- If counter claim is not issued, copyrighted work must be removed from service.
- If counter-claim is issued, both parties are given appropriate information about the oppisite parties, and allowed to file in court.

This is obviously only US, but ISPs need to follow pretty strict rules on this kind of thing, and breaking them gets them into a completley different status class that they really can't afford to be in (where they are required to police their content).

Both of these rules apply to ALL IETF Mirrors and all parties recieving or using these works.  The net of this is that the IETF and its mirrors all bear direct responsibility for participating in a process that cannot possibly control IP once published. There is no effective difference between publishing wiht the IETF and walking into a crowd of beggars with a bag of pennies.

Todd Glassey

-----Original Message-----
>From: Dean Anderson <[email-masked]>
>Sent: Aug 16, 2006 1:14 AM
>To: todd glassey <[email-masked]>
>Subject: Re: RFP Question for you Jorge... did anyone put a notice of "Responsibility for Copyright Violations" to the Publisher RFP Candidates?
>
>Feel free to forward this to the IETF list. I cannot post at present, 
>though this will be appealed to the ISOC shortly.
>
>I'm not a lawyer, but I do run an ISP, and have been through this DMCA
>stuff.  The DMCA covers the ISP that puts the page online and the
>customer of the ISP. The customer, in this case the IETF/ISOC, doesn't
>need a policy. Neither does the ISP. The customer just has to do what is
>required by law if it is given notice of a violation, as does the ISP
>providing the service.  After that, its a good old-fashioned copyright
>complaint. But there are penalties for false accusations under the DMCA.
>
>But I think the correct question to ask Jorge is who does he represent?  
>Who is his client?  As a defacto or paying member of the non-profit
>organization employing him as counsel, I think you have a right to that
>information. I think the answer is the ISOC is the client.
>
>People are remarkably cagey about the legal structure of the IETF. I'm
>not sure why.  It can be sorted out. I think it probably goes something 
>like this:
>
>
>From 19 C.J.S. Corporations
>
>19 C.J.S. § 472 --- Agents
>A general agents authority is determined by the nature of the business 
>of the corporation, and prima facie is coextensive with his employment.
>Mo.---Kelso v. Lincoln Nat. Life Ins. Co. 51 S.W.2d 203, 227 Mo. App. 
>184
>His power and authority depend on the same principles applied to the 
>cases of agents for individuals
>Md.---Fuller v. Horvath, 402 A.2d 134, 42 Md.App. 671
>
>Those principles of agency for individuals are described, among other 
>books on the subject, the Restatement of Agency.
>
>From  Restatement of the Law, Second, Agency 2d, American Law 
>Institute(1957):
>==================
>§ 1 (b)  Agency a legal concept
>Agency is a legal concept which depends on the existence of required 
>factual elements: the manifestation by the principal that the agent 
>shall act for him, the agent.s acceptance of the undertaking, and the 
>understanding of the parties that the principal is to be in control of 
>the undertaking.  The relation which the law calls agency does not 
>depend upon the intent of the parties to create it, nor their belief 
>that they have done so.  To constitute the relation, there must be an 
>agreement, but not necessarily a contract, between the parties; if the 
>agreement results in the factual relation between them to which are 
>attached the legal consequences of agency, an agency exists although the 
>parties did not call it agency and did not intend the legal consequences 
>of the relation to follow.
>==================
>
>This applies to the IETF and ISOC as follows:
>
>Notice that the copyright on RFC is to the Internet Society.
>eg:
>
>Copyright Notice
>
>   Copyright (C) The Internet Society (2004). All Rights Reserved.
>
>
>The IETF is not itself a corporation, nor a defective or defacto
>corporation.  The IETF is subject to control by the ISOC (RFC 2026
>6.5.3) and the output property of the IETF (RFCs) is owned by the ISOC.  
>The secretariat services are paid for by the ISOC. The ISOC is a 501(c)3
>non-profit, and can't lawfully _donate_ non-profit funds to for-profit
>companies or for-profit unincorporated organizations or individuals.  
>However, it would be lawful to pay for services rendered.  So the IETF
>must be either a servant or independent contractor performing services
>to the ISOC. Servants are always agents, and independent contractors can
>be agents or not agents.
>
>The ISOC manifests authority to the IETF to create property (RFCs) owned
>by the ISOC, binding the ISOC (as you point out). The IETF manifests
>acceptance of the authority by creating RFCs. The power to bind a
>principal is unique to an agent. These facts should establish a
>principal/agent legal relation.
>
>Because of the control over the physical conduct implied by RFC2026
>6.5.3, and the ownership of RFC 2026 itself by the ISOC, one should also
>be also able to infer a master/servant (legal terms for
>employer/employee) relation. Likewise, the RFCs give control over the
>physical conduct of work in working groups, so one should be able to
>infer a master/servant relation.
>
>RFC 2026 Section 1 states:
>   The
>   Internet Standards process is an activity of the Internet Society
>   that is organized and managed on behalf of the Internet community by
>   the Internet Architecture Board (IAB) and the Internet Engineering
>   Steering Group (IESG).
>
>
>So the IETF is just a artificial management structure to organize work
>within the ISOC. The Area Directors, IAB Board Members, and WG Chairs
>are either gratuitously serving employees, or performing non-gratuitous
>service not paid for in money, e.g. for education and insurance
>coverage.
>
>It seems reasonable to conclude that all such persons are subject to the
>same duties, liabilities, and torts to which agents and servants
>(employees) are subject to, depending on certain limitations regarding
>gratuitous or non-gratuitous service, as the case may be.
>
>
>
>
>		--Dean
>
>On Mon, 14 Aug 2006, todd glassey wrote:
>
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