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

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

> But seriously, we all know that the IETF rules regarding 
> copyright relate to *documents* and *text* and *computer 
> code*, all of which are clearly covered by copyright 
> protection in the U.S.  "Specifications for software 
> standards" as you refer to them are *written* documents.
> The authors have copyrights in them.  In order to reproduce, 
> display and publish them, one needs a license under those 
> copyrights.  It's all pretty banal, but that's the law and I 
> don't think there's any disagreement there.

Jorge,

There is quite definitely a disagreement here. The courts obviously
recognize that such works are *written*. They are just not always
*copyrightable*.

Any attempt by IETF to *prevent* anyone from copying and improving normative
code in IETF specifications will be met by this Baker v. Selden argument. To
be perfectly clear, there can be no IETF policy that prohibits the copying
of written words in IETF specifications if doing so is necessary to
implement those specifications or improvements thereof. You cannot presume
the copyrightability of functional code necessary to implement or improve
IETF specifications.

IETF's policy in this respect is overreaching, as are the policies of many
standards organizations. 

If we can't get agreement for IETF to *explicitly* allow copying and
derivative works, then we'll just pass the word around that we can
comfortably ignore any IETF restriction on doing exactly what we need --
that is, to create open source implementations and derivative works using
the normative code in IETF specifications -- subject *only* to patents. (In
any event, will IETF ever sue for copyright infringement?)

Baker ain't a chestnut. It's a real case with real implications for industry
standard software, especially if you consider more recent software-related
cases expounding on the doctrines of merger and scenes a faire in the world
of software.

There's no reason why we should acquiesce to some in IETF who are willing to
make life more difficult for open source implementations or to constrain
people's freedom to create improvements of IETF specifications even outside
of IETF.

As I said in the first sentence of my email, "I support Simon's efforts." If
he and the others in the IPR-WG can work out compromise wording that gives
free and open source implementers what they need, I'll be fine with that.

As for the IETF patent policy to which you refer, I'll hold my words for now
and in this thread. Many on here have heard them already anyway.

I appreciated reading your history of the justice who wrote the Baker
decision. The relevance to current events is obvious. :-)

/Larry 

> -----Original Message-----
> From: Contreras, Jorge [mailto:Jorge.Contreras at wilmerhale.com] 
> Sent: Thursday, October 06, 2005 7:22 PM
> To: lrosen at rosenlaw.com; ipr-wg at ietf.org
> Subject: RE: draft-ietf-ipr-rules-update-00.txt
> 
> Larry,
> 
> Thanks for the note regarding "Baker v. Selden".  It's one of 
> my favorite old chestnuts.  If you're interested in legal 
> trivia, you'll be pleased to know that the author of the 
> opinion, Justice Joseph P.
> Bradley, was a Republican activist.  When President Grant 
> nominated him to the Supreme Court in 1870, he had absolutely 
> no prior judicial experience.  The Senate confirmed him 46-9; 
> he served for 21 years.
> 
> But seriously, we all know that the IETF rules regarding 
> copyright relate to *documents* and *text* and *computer 
> code*, all of which are clearly covered by copyright 
> protection in the U.S.  "Specifications for software 
> standards" as you refer to them are *written* documents.
> The authors have copyrights in them.  In order to reproduce, 
> display and publish them, one needs a license under those 
> copyrights.  It's all pretty banal, but that's the law and I 
> don't think there's any disagreement there.
> 
> The more interesting question, and the one that you may 
> really be getting at, is whether there is protection in the 
> ideas that these written documents embody.  And we all know 
> that protection for ideas is really provided by patents, not 
> copyrights.  So if your real point is that patents shouldn't 
> cover the implementation of standards, then I can understand 
> the position.  Nobody, however, is saying that the document 
> copyright would prevent somebody from implementing a 
> standard, unless actual code from the RFC (as is the case 
> with MIBs, PIBs, etc.) had to be copied from the text.
> 
> Though interesting, these issues really have little to do 
> with the copyright policy that we've been discussing.  If 
> anything, you have a dispute with the PTO, who grants patents 
> that cover such things, or with the IETF IP Policy (BCP 79), 
> which recognizes that its participants may hold such patents, 
> or with the concept of patents themselves.  Those are all 
> legitimate views to espouse and I'd welcome the debate in 
> some context other than this fairly technical exercise, which 
> is just intended to correct some omissions from the IETF 
> copyright policy.
> 
> Best regards,
> Jorge
> 
> 
> -----Original Message-----
> From: ipr-wg-bounces at ietf.org 
> [mailto:ipr-wg-bounces at ietf.org]On Behalf Of Lawrence Rosen
> Sent: Thursday, October 06, 2005 2:54 PM
> To: ipr-wg at ietf.org
> Subject: RE: draft-ietf-ipr-rules-update-00.txt
> 
> 
> 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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