RE: draft-ietf-ipr-rules-update-00.txt

["Lawrence Rosen" <lrosen at rosenlaw.com>]

I support Simon's efforts. That said, I also find parts of the current IETF
policy unenforceable as a matter of copyright law:

   "In no case does copyright protection for an original work of authorship
   extend to any idea, procedure, process, system, method of operation,
   concept, principle, or discovery, regardless of the form in which it
   is described, explained, illustrated, or embodied in such work."
   17 U.S.C. 102(b).

I can think of no better example of such a situation than a specification
for a software standard.

To the extent that an IETF specification contains code or specific
procedures that must be followed to be compatible, I fail to see how that is
copyrightable expression. This principle of copyright law has been around
since Baker v. Selden was decided by the U.S. Supreme Court more than a
century ago, and it has been affirmed in the era of computer software many
times since. 

It would probably be infringement for someone to copy an entire IETF
specification, or perhaps even to copy the words that surround the normative
rules, but nobody can claim copyright protection to prevent the normative
rules from being implemented (and that implementation described) by copying
them.

It would be a gross perversion of the constitutional and statutory copyright
and patent scheme if IETF -- or any other standards organization -- could
prevent the implementation or improvement of a published specification by
necessarily copying them and/or creating derivative works, in the absence of
a patent.

Here's some of what the Court said in Baker v. Selden:

   "Charles Selden, by his books, explained and described a peculiar
   system of book-keeping, and illustrated his method by means of 
   ruled lines and blank columns, with proper headings on a page, 
   or on successive pages. Now, whilst no one has a right to print 
   or publish his book, or any material part thereof, as a book 
   intended to convey instruction in the art, any person may 
   practise and use the art itself which he has described and 
   illustrated therein. The use of the art is a totally different
   thing from a publication of the book explaining it. The copyright 
   of a book on book-keeping cannot secure the exclusive right to
   make, sell, and use account-books prepared upon the plan set 
   forth in such book. Whether the art might or might not have 
   been patented, is a question which is not before us. It was not 
   patented, and is open and free to the use of the public. And, 
   of course, in using the art, the ruled lines and headings of 
   accounts must necessarily be used as incident to it.
   101 U.S. 99, 104 (1879).

While there are many reasons not to apply Baker v. Selden as if it were a
bright-line rule, the IETF policy does not properly acknowledge the effects
of the long line of cases that followed Baker in which the courts enunciated
the doctrine of merger ["copyright protection is denied to expression that
is inseparable from the ideas, processes or facts underlying the
expression"] and the doctrine of scenes a faire ["copyright protection is
denied to elements of a program that are dictated by external factors, such
as compatibility requirements and industry-wide programming practices"].

/Larry 

Lawrence Rosen
Rosenlaw & Einschlag, technology law offices (www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242  *  fax: 707-485-1243
Author of "Open Source Licensing: Software Freedom and 
   Intellectual Property Law" (Prentice Hall 2004) 
   [Available also at www.rosenlaw.com/oslbook.htm]


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