FW: FW: IETF IP Contribution Policy

Lawrence Rosen lrosen at rosenlaw.com
Tue Jan 23 01:45:08 UTC 2007

CROSS-POSTED to OSI and Apache discussion lists (with bcc):

Brian Behlendorf wrote:
> It was pointed out to me that the following is not true:
<snip> <copy of Brian's email below>

Brian's analysis had more truth to it than he realizes. 

The very best of IP counsel at large companies share our confusion about
IETF and its patent policies. One of those attorneys helped me understand
the following facts. While this is not the time or venue to address
specifics about the way IETF handles its patent matters: 

1. The IETF website contains "Generic IPR Disclosures," which Brian
accurately summarized. On the other hand, RFC 3979 nowhere mentions such a
term. Those disclosures are nowhere linked to specific RFCs. There is
something in RFC 3979 called a "blanket statement" (§ 6.4.3) but it only
applies when the IPR is free, not RAND. Many of those Generic IPR
Disclosures aren't royalty-free, and some contain terms that are clearly not
compatible with open source licenses.

2. As for the ability to link from an RFC to an IPR statement, that is
generally impossible because most IETF IPR statements only refer to an
Internet draft. Some disclosures seem to be updated as new drafts are
assigned a number, but there are dangling references throughout this IPR
disclosure list. There is no IETF requirement to update these references
when an RFC number is assigned. 

Therefore, for companies seeking IPR reassurances to implement an IETF
specification, a reasonable conclusion given the IETF IPR Disclosures
website is that you're largely swimming unprotected in an ocean of patents.

For now what we need to do is convince the IETF directors merely that the
subject of patents must be in-charter for the IETF IPR WG. That way,
reasonable people will be expected to discuss--on that list and in
accordance with IETF's rules of openness and careful listening--the patent
policies of IETF in the context of the requirements of open source. I
encourage you to speak up in support of that next step.

I'll offer to copy emails to IETF that you're not subscribed to send
yourself. But see http://www.ietf.org/maillist.html to subscribe. Once the
IETF IPR WG is properly chartered, that list will become the proper place to
discuss these issues. If you already participate in an IETF working group,
now would be a particularly good time to speak up about this patent policy
problem and request that the charter of the IETF IPR WG include proposals to
revise IETF's patent policies to make them compatible with open source. 

/Larry Rosen

> -----Original Message-----
> From: Brian Behlendorf [mailto:brian at collab.net]
> Sent: Sunday, January 21, 2007 9:59 PM
> To: license-discuss at opensource.org; 'Legal Discuss'; john-ietf at jck.com
> Subject: Re: FW: IETF IP Contribution Policy
> It was pointed out to me that the following is not true:
> On Fri, 19 Jan 2007, Brian Behlendorf wrote:
> > I see that there was only one IPR filing in 2006, compared to 11 in
> 2005. Is
> > that a sign that standards efforts at the IETF are trending towards 
> > encumbrance-free?  Is this a problem that will solve itself?
> ...nor the conclusions that followed.  The list of disclosures is at
> https://datatracker.ietf.org/public/ipr_list.cgi
> and I failed to notice that there are not one list but three lists, 
> one of "generic" disclosures that is short, and another of "specific" 
> disclosures that is much longer, followed by a list of "third-party 
> specific disclosures".  There is a handy search engine to be able to 
> look for disclosures based on RFC number, but as the few searches I 
> initiall performed did not turn up any hits, I made the mistaken 
> assumption that it was a sparse dataset.
> Specific disclosures per year:
> 2007	13
> 2006	86
> 2005	143
> 2004	103
> 2003	76
> 2002	51
> (and others going back to 1993)
> My quick-and-dirty analysis in my original email that most of the 
> grants were RAND and many were RF might still be true, but I don't 
> have the personal time right now to repeat that with such a large 
> dataset.  The dip to 86 in 2006 is not a clear trend that disclosures 
> are declining; the indication that it might have been the case with 
> the generic disclosures might simply mean that the most common 
> corporate filers had made their blanket disclosures by a few years ago and
they did not need updating.
> Doing an "ROI" study to see whether on balance this policy has 
> resulted in better standards and avoided onerous encumbrances would be 
> fertile ground for a business school research report, perhaps.
> I still stand behind the following:
> > It also appears that you now have nearly 8 years of a disclosure 
> > policy
> under
> > the organization's belt, and a reasonable cost/benefit analysis 
> > could be done. Have you gone to those who've disclosed IPR and asked 
> > them whether
> the
> > revenue they received from such activities was worth it?  If it 
> > can't be substantiated that revenues from patent licensing were 
> > necessary to
> incent
> > participation in the IETF, then an RF policy is hard to argue against.
> >
> > One of the advantages of a clear policy like the ASF has is the
> simplicity it
> > creates for all participants, and the corresponding trust.  Seeing 
> > an industry leader participating in a particular effort reassures 
> > everyone
> that
> > the leader won't pull a Rambus and swamp everyone's investment of 
> > time
> and
> > thus money into a royalty scheme no matter how "fair and reasonable"
> that
> > company might decide that it is being.
> >
> > You might be able to treat Larry like an outsider to the IETF 
> > process,
> but
> > many of the people who made the IETF relevant as an organization did 
> > so
> by
> > writing Open Source software, sometimes just as reference
> implementations but
> > often by being the category-leading implementations.  Legal jeopardy 
> > for writing software that implements common standards and giving it 
> > away for
> free
> > is increasing, which is the opposite of what it should be.
> Brian

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