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

From: "Contreras, Jorge" <[email-masked]>
Date: Sun, 8 Feb 2009 17:52:46 -0500

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

----- Original Message -----

From: John C Klensin <[email-masked]>

To: Contreras, Jorge; Thomas Narten <[email-masked]>; Ray Pelletier <[email-masked]>

Cc: Trustees <[email-masked]>; [email-masked] <[email-masked]>; [email-masked] <[email-masked]>; [email-masked] <[email-masked]>; [email-masked] <[email-masked]>; [email-masked] <[email-masked]>

Sent: Sun Feb 08 17:38:10 2009

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

--On Sunday, February 08, 2009 5:24 PM -0500 "Contreras, Jorge"

<[email-masked]> wrote:

> Sorry for jumping into this thread late, but I would recommend

> leaving 6.c and 6.c.iii as proposed in the TLP draft that was

> circulated.

> 6.c.iii

>> OLD:

>> > iii. If a Contribution includes Pre-5378 Material and the

>> >  Contributor does not wish to allow modifications of such

>> >  Pre-5378 Material to be made outside the IETF Standards

>> >  Process:

>> "does not wish" is not right. The issue is that the current

>> author of the document is unable (for whatever reason) to

>> make assertions about the pre-5378 material.

> I think "does not wish" is right, as it gives the new

> Contributor maximum flexibility in withholding the right to

> make non-IETF derivative works if his Contribution includes

> pre-5378 Material.  I don't see any of the proposed changes

> making this clearer or better.

>...

Jorge,

I think people are trying to make two specific points.  If you

tell us that both are irrelevant, then I, for one, will accept

that and move on.  The points are:

(1) This language should not let a submitting author (a term

that is a tad more precise than "Contributor" for this purpose,

but substitute as you like) off the hook for compliance with the

letter and intent of 5378 for his or her one new, post

whenever-November-10-is, contribution.  If the Note Well, or

5378 itself, or something else, takes care of that regardless of

what the workaround text says, it would be helpful to clarify

that somewhere.

(2) As a submitting author, I may be so convinced that 5378 is a

wonderful thing that I would dearly wish, with all of my might,

that I could offer a document in full compliance with its text

and intent.  But I may just not have enough rights to do that

(something wishing is unlikely to cure)  and hence have to opt

for IETF use only.   Some of us would like to avoid an assertion

that we "wish" to not provide the broader rights as it may be

counterfactual.   That distinction may make absolutely no

difference from an IPR standpoint, but some of us have an

allergy to IETF procedural rules that require people to assert

things that aren't true.

john

---

From: [email-masked]
Date: Sun, 8 Feb 2009 22:53:57 +0000

Sorry for this Blackberry response. 

Neither 'wish' nor 'elects' is accaeptable to me because it seems to place a duty on the Contributor to ascertain the desires of the pre-5378 contributor, a tasking on the contributor that I wish to avoid with the language proposed. 

Ray 
Sent via BlackBerry by AT&T

-----Original Message-----
From: "Contreras, Jorge" <[email-masked]>

Date: Sun, 8 Feb 2009 17:52:46 
To: <[email-masked]>; <[email-masked]>; <[email-masked]>
Cc: <[email-masked]>; <[email-masked]>; <[email-masked]>; <[email-masked]>; <[email-masked]>; <[email-masked]>
Subject: Re: [Trustees] Last Call for Comments: Proposed work-around to	thePre-5378 Problem

 ----- Original Message -----
 From: John C Klensin <[email-masked]>
 To: Contreras, Jorge; Thomas Narten <[email-masked]>; Ray Pelletier <[email-masked]>
 Cc: Trustees <[email-masked]>; [email-masked] <[email-masked]>; [email-masked] <[email-masked]>; [email-masked] <[email-masked]>; [email-masked] <[email-masked]>; [email-masked] <[email-masked]>
 Sent: Sun Feb 08 17:38:10 2009
 Subject: RE: [Trustees] Last Call for Comments: Proposed work-around to thePre-5378 Problem

 
 
 Jorge,

 
 
     john

---

From: John C Klensin <[email-masked]>
Date: Sun, 08 Feb 2009 19:47:25 -0500

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

---

From: Pete Resnick <[email-masked]>
Date: Sun, 8 Feb 2009 17:47:58 -0600

On 2/8/09 at 5:52 PM -0500, Jorge Contreras wrote:

>>>>>Pre-5378 Material to be made outside the IETF Standards Process:
>>>>
>>>>author of the document is unable (for whatever reason) to make 
>>>>assertions about the pre-5378 material.
>>>
>>>I think "does not wish" is right, as it gives the new Contributor 
>>>maximum flexibility in withholding the right to make non-IETF 
>>>derivative works if his Contribution includes pre-5378 Material. 
>>>I don't see any of the proposed changes making this clearer or 
>>>better.
>
>Would "elect" be less value-laden than "wish"?

Jorge, it makes no difference. Both "elect" and "wish" are incorrect. 
First of all, "the Contributor" of the current document cannot 
"elect", or for that matter "not elect", to "allow modifications of 
Pre-5378 Material" that appears in the current document "to be made 
outside the IETF Standards Process": In this case, "the Contributor" 
does not hold the copyright on the Pre-5378 Material and has no 
discretion to grant or withhold such permission. And I assume that 
any "Contributor" *does* wish to allow modifications of Pre-5378 
Material, but that doesn't matter, because "the Contributor" has no 
right to make that choice. Ray's language is correct:

>>>iii. If a Contribution includes Pre-5378 Material for which the 
>>>Contributor of the pre-5378 material has not or may not have 
>>>granted the necessary permissions to the IETF Trust to allow 
>>>modifications of such Pre-5378 Material to be made outside the 
>>>IETF Standards Process:
>
>This language seems unnecessarily dense, and since it includes "may 
>not", it has the same effect as "does not wish", doesn't it?

No it does not. This says that "the Contributor of the pre-5378 
material" (*not*, as it says in the original, "the Contributor" of 
the current document) may not have granted the necessary permissions. 
I'm fine with leaving out the "has not" and making it only "may not", 
but this is not at all the same as the original wording.

You really need to read over John and Ray's comments. The original 
text is simply not correct.

pr
-- 
Pete Resnick <http://www.qualcomm.com/~presnick/>
Qualcomm Incorporated - Direct phone: (858)651-4478, Fax: (858)651-1102

---

From: Eric Burger <[email-masked]>
Date: Tue, 10 Feb 2009 09:25:37 -0500

Agreed.  And more to the point, I am quite disappointed that while we  
make it abundantly clear that contributions, if published, clearly  
become the property of the IETF Trust, we still talk about Authors as  
individuals writing original documents, instead of Editors, who work  
at the behest of WG Chairs.  That concept goes way, way, way before  
5378.

On Feb 8, 2009, at 5:53 PM, [email-masked] wrote:

> Neither 'wish' nor 'elects' is accaeptable to me because it seems to  
> place a duty on the Contributor to ascertain the desires of the  
> pre-5378 contributor, a tasking on the contributor that I wish to  
> avoid with the language proposed.
>
> Ray
> From: "Contreras, Jorge"
> Date: Sun, 8 Feb 2009 17:52:46 -0500
> Cc: Trustees <[email-masked]>; [email-masked]  
> <[email-masked]>; [email-masked] <[email-masked]>; [email-masked] <[email-masked] 
> >; [email-masked] <[email-masked]>; [email-masked] <[email-masked] 
> >