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Re: recourse if our rules are violated?

Frank,  (and the rest of the IPR WG) PLEASE DONT TAKE ANY OF MY RESPONSES
BELOW AS PERSONAL - they are not.

That said... In answer to your question, you passed with %100, especially
the Moving
Target response - yee ha!

Lets look at some more...

t.

----- Original Message ----- From: "Frank Ellermann" <nobody at xyzzy.claranet.de>
To: <ipr-wg at ietf.org>
Sent: Wednesday, April 11, 2007 2:09 PM
Subject: Re: recourse if our rules are violated?


todd glassey wrote:

What happens to a filing (after its publication) that is found to
have external IP constraints which were undisclosed???

Nothing, only the status line on the front page can be changed. 

And this is why the IETF becomes liable for each and everything it
publishes, because it has no Take Down Policy or method of enforcing one,
and it and only it is responsible for the publishing of the content it
publishes... since it and only it owns that content by the terms of the
submission license's conveyance...




is there a way to pull the publication and prevent its use by those
the IETF has given 'any and all uses' rights to?

No. 

Which substantiates the above commentary about liability.

Lets look at another analogy here - Its the Sale of the Gun argument... I
sell you a gun I (stole, built or bought for resale) and you go out and
shoot someone with it... Who is responsible for the Guns Use? Me or you?

Lets take that a step farther. Instead of using the Gun yourself you (and I
am speaking of the IETF in this case) give that gun away to millions of
people who all go and use it, some for evil purposes, some for profit... Now
we are talking about tens of thousands of 'shootings'... so now who is
liable for those damages (me for submitting the stolen gun to you or you for
replicating the gun and making it freely available as a 'gift from you -
again the IETF in this case???).

Likewise there is the issue of the profits against the unauthorized use of
the IP to deal with as well which also there is tons of precursory law for
as well... this is not complex.


who is liable for the IETF's actions in publishing documents it
doesn't have ownership of, or rights to publish since the IETF's
copyright statement seems to prevent any recall or control of
those IP's.


If you give me a cookie, and I give it to somebody who eats it,
and it later turns out that you've stolen it, then you're liable,


the Cookie is a bad example, but maybe... unless I 'gave you the cookie for
something of value' in which case its an exchange... The value of the IP
given to the IETF and the promise of  vetting is the key thing here I think.

unless the owner can prove that I knew this (here for values of
cookie = RFC, and I = IETF).  IANAL, you are, aren't you ?


Yes but ass I noted - the cookie is not a good analogy... lets try a car or
something of the  value of the IP in a submission. Like the Gun model, if I
had a 'stolen car' and sold it to you
and you had knowledge that there was anything amiss about the title of the
vehicle or any other Intellectual Properties it contained or was derived
from, and you didn't verify it but rather you continued to use it or better
yet you built some other IP or system from it, then there are a number of
issues to address including the ownership of the derivatives and damages
against the IETF (who continues to facilitate the fraud) through its not
having reasonable recourse in its boiler plate IMHO.

Think of it this way - what happens if company A has an IP which some third
party documents and then submits to the IETF. What is it that the IETF owns?
is it the core IP which was owned by Company A or is it the words about that
IP which were submitted by the third party? I think its just the third
parties words
about IP "A".

The distinction is critical since the words about the IP do not allow the
IETF to develop any derivative efforts in any sense of the word, since the
IETF neither owns the IP of Company A nor did the party submitting the
work-product for publication.

So in this instance, the IETF has published a document which the rightful
owner  (Company A) is entitled to have removed from publication... and since
the IETF cannot do that, it becomes liable for the damages that this failure
in its processes causes.

Further I think the IETF is also liable for the profits against the use
of that same information and any derivatives thereof, and ISOC is where that
damage claim
money is coming from.


[...skipping a hard question, where I've no clear idea at all...]

What happens to a Standard that is found to have external IP
constraints controlling it, that are found after the Standard's
publication?

We're just discussing a proposed option to update its status line. 

I dont think that is enough. I think that the owner of that IP is entitled
to significant damages from the IETF since the IETF intentionally made that
IP un-recallable in direct defiance of any reasonable "Take Down" policy and
the Copyright License Provisions to enable it... The IETF doesn't get to
both
claim that "we are only a publication house"  since it becomes the Owner of
the IP in question (through the conveyance to the Trust) and publishes IP it
cannot document its true control over in an unlimited manner.

Simply put , if the individual assigns any and all rights to the submission
to the IETF then the IETF is publishing 'its own property' and not the
property of the person that submitted it. As such the IETF itself is in fact
liable and a first year law or accounting student would know this, the IETF
also has a legal responsibility to exercise due care in republishing that IP
so it can respond to nefarious or policy violations in the IETF process
flow.

Remember the IETF accepts ownership of the IP prior to its republishing it
for
any and all uses and as such the IETF itself is liable here... This is
really simple Risk-Analysis and what it says is that the current Standard of
Care is insufficient.


How does the IETF and its management protect itself from IP
issues when it cannot recall any documents which were published
wrongly


I've heard that the management of the Trust etc. have some legal
insurance.


For what in particular???  I heard it was D&O coverage if anything, and they
do really need it since none of them have any experience managing
Intellectual Properties per their CV's I could find, but that's another
issue.

What I think you were alluding to would be an Errors and Omissions (E&O)
Policy and I bet there isn't an insurance company on this planet dumb enough
to underwrite that with the current IETF policies and Head-in-the-sand type
of operating policies. All any Insurance Carrier would have to do is to look
at the sheer number of documents or that they were all constrained by a
consensus vote by a bunch of techies and that would be it...

Anyone who wants to put money on this contact me offlist, I'll gladly take
your money to demonstrate how broken the current process/policy is.


is it the intention of the IETF to misrepresent its intent and
actually to build processes to make it impossible from a
real-world perspective to control IP submitted to it?


The "intentions of the IETF" are a moving target, but sometimes
RFCs are published claiming to represent a (past) IETF consensus
binding until it's obsolete or updated by another RFC.


Cool - yes I agree and that is the problem. The rules and hurdles are
inconsistent. What we need are rules and processes that are both transparent
and open and fair.

BTW - These intentions form the Goals and Operating Framework under which
the management team is constrained (OR not constrained as I allege the
current framework is built)...


Was that a quiz ? What's my result ? 

100%  :-) - You da man bro!

Todd


Frank



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