Including text under former copyright conditions
draft-carpenter-5378-old-text-02

Status of this Memo

This Internet-Draft is submitted to IETF in full conformance with the provisions of BCP 78 and BCP 79.

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This Internet-Draft will expire on November 12, 2009.

Copyright Notice

Copyright (c) 2009 IETF Trust and the persons identified as the document authors. All rights reserved.

This document is subject to BCP 78 and the IETF Trust's Legal Provisions Relating to IETF Documents in effect on the date of publication of this document (http://trustee.ietf.org/license-info). Please review these documents carefully, as they describe your rights and restrictions with respect to this document.

Abstract

This document specifies a procedure for including text in an IETF document for which the current copyright conditions defined in RFC 5378 cannot readily be met.

Table of Contents

1.  Introduction
2.  Mandatory Procedure
3.  Voluntary Procedures
4.  Security Considerations
5.  IANA Considerations
6.  Acknowledgements
7.  References
    7.1.  Normative References
    7.2.  Informative References
Appendix A.  Non-normative initial version of disclaimer
Appendix B.  Non-normative explanation of background
§  Authors' Addresses

1.  Introduction

[[ Note to be removed by the RFC Editor: This version of the draft describes a completely modified procedure compared to the one presented at IETF74, which did not obtain consensus. It contains small and large changes throughout. Discussion is invited on the ipr-wg@ietf.org list. ]]

Terminology: In this document, the phrases "prior to RFC 5378" and "pre-5378" refer to IETF Contributions made before November 10, 2008, when RFC 5378 became effective. The phrase "Original Contributor" refers to an Indirect Contributor in the sense of [RFC5378] (Bradner, S. and J. Contreras, “Rights Contributors Provide to the IETF Trust,” November 2008.), whose Contribution was prior to RFC 5378. Other terminology is defined in RFC 5378.

RFC 5378 failed to describe one case that has practical consequences.

The case is this: a new IETF Contribution contains material derived from one or more pre-5378 Contributions, but the Original Contributors have not agreed to the specific additional rights granted to the IETF under RFC 5378 compared to previous IETF rules. In this case, the Contributor cannot accurately make the warranties required by RFC 5378 with respect to the pre-5378 material included in his or her Contribution.

This can arise when the Original Contributors, or their assigns, are unwilling, unresponsive, unfindable, deceased, no longer in business, or simply too numerous.

This document is intended to specify the simplest possible solution for such cases. Additional background information is given in Appendix B (Non-normative explanation of background) below.

2.  Mandatory Procedure

It should be noted that Section 5.6 of [RFC5378] (Bradner, S. and J. Contreras, “Rights Contributors Provide to the IETF Trust,” November 2008.) already requires that Indirect Contributors must be acknowledged in all IETF documents. This continues a requirement previously specified in section 3.4 (a) of [RFC3978] (Bradner, S., “IETF Rights in Contributions,” March 2005.) and [RFC3667] (Bradner, S., “IETF Rights in Contributions,” February 2004.), and in section 10.3.1 (4) of [RFC2026] (Bradner, S., “The Internet Standards Process -- Revision 3,” October 1996.). The present document extends this requirement in certain cases.

Contributors of Internet-Drafts that contain text originally contributed to the IETF by other persons prior to RFC 5378 have certain responsibilities, to be exercised to the best of their knowledge and ability.

Unless the Contributor(s) know that the Original Contributors have agreed to their text being contributed under the terms of RFC 5378, the Internet-Draft and any resulting RFC must include an appropriate legend of disclaimer. The current text of this legend will be specified by the IETF Trust's "Legend Instructions" as defined in [RFC5378] (Bradner, S. and J. Contreras, “Rights Contributors Provide to the IETF Trust,” November 2008.). The initial version of this text is given for informational purposes in Appendix A (Non-normative initial version of disclaimer) below.

If and only if this legend is included:

• The acknowledgement required by Section 5.6 of [RFC5378] (Bradner, S. and J. Contreras, “Rights Contributors Provide to the IETF Trust,” November 2008.) should identify the source(s) of pre-5378 text, such as RFCs and Internet-Drafts. This requirement does not extend to small fragments of text culled from IETF discussions.
• The acknowledgement should also identify which Original Contributors contributed which sections of pre-5378 text. This requirement does not apply if the text concerned is scattered throughout the document.

The IETF Trust is directed to ensure that its policies and licenses allow for documents including the disclaimer.

3.  Voluntary Procedures

[[ Discussion invited: is it appropriate and useful to include these voluntary procedures? The BOF at IETF74 seemed to accept a "MAY" approach, but there was no clear consensus call on that point. ]]

All Contributors to the IETF prior to RFC 5378 are invited to provide retroactively to the IETF Trust the rights in their Contributions required by RFC 5378.

The IETF Trust may provide a public register of pre-5378 documents for which the rights required by RFC 5378 have been provided retroactively, and a public register of rights holders who have retroactively provided such rights for all their pre-5378 Contributions.

Contributors of Internet-Drafts including pre-5378 material who wish to avoid also including the disclaimer may take any steps they wish, or ask helpers to take such steps, to contact the Original Contributors and obtain their agreement to their text being contributed under the terms of RFC 5378.

4.  Security Considerations

This document does not affect the security of the Internet.

5.  IANA Considerations

This document requires no action by the IANA.

6.  Acknowledgements

Much mailing list discussion by the IETF community, and private email discussions with Scott Bradner, Jorge Contreras, Russ Housley, John Klensin, and others, have led to this document. The discussions at IETF74 in San Francisco led a significant rewrite.

This document was produced using the xml2rfc tool [RFC2629] (Rose, M., “Writing I-Ds and RFCs using XML,” June 1999.).

7.  References

7.1. Normative References

7.2. Informative References

Appendix A.  Non-normative initial version of disclaimer

The current valid version should be taken from the IETF Trust's "Legal Provisions Relating to IETF Documents", originally located at http://trustee.ietf.org/policyandprocedures.html. The initial version was:

[[ Note to RFC Editor: please make sure this is the Trust's current disclaimer text at the time of publication. ]]

"This document may contain material from IETF Documents or IETF Contributions published or made publicly available before November 10, 2008. The person(s) controlling the copyright in some of this material may not have granted the IETF Trust the right to allow modifications of such material outside the IETF Standards Process. Without obtaining an adequate license from the person(s) controlling the copyright in such materials, this document may not be modified outside the IETF Standards Process, and derivative works of it may not be created outside the IETF Standards Process, except to format it for publication as an RFC or to translate it into languages other than English."

Appendix B.  Non-normative explanation of background

This Appendix is not part of the formal rules of the IETF and does not purport to offer legal advice. Contributors to the IETF who are in any doubt as to how to proceed are advised to take appropriate legal advice.

Copyright provisions for IETF documents were first defined in [RFC2026] (Bradner, S., “The Internet Standards Process -- Revision 3,” October 1996.) and were subsequently refined in [RFC3667] (Bradner, S., “IETF Rights in Contributions,” February 2004.) and [RFC3978] (Bradner, S., “IETF Rights in Contributions,” March 2005.). Their effect has always been to allow free use of contributions to the IETF process in IETF discussions, IETF drafts and IETF publications. Even prior to RFC 2026, such free use was considered the norm by all participants. RFC 5378 makes no difference to the IETF's right to use contributions freely within the IETF process. However, use of contributions outside the IETF process has always been subject to some limitations. The IETF does not require copyright transfers, and as a result contributors retain control except to the extent that the IETF rules applicable at the time of submission indicate otherwise.

IETF and RFC Editor rules and practices have always allowed RFCs to be reproduced as complete documents, in English or in translation. This has not changed.

The particular point at issue is the use of IETF contributions in works derived from IETF documents by third parties outside the IETF process. The rules in RFC 2026, RFC 3667 and RFC 3978 do not allow this without the contributors' permission, except for limited exceptions.

The exception defined in RFC 2026 is that "derivative works that comment on or otherwise explain it [the IETF document] or assist in its implmentation [sic] may be prepared, copied, published and distributed, in whole or in part, without restriction of any kind..." This has been generally interpreted to allow extracts to be used in software implementations, user manuals, text books, and the like.

RFC 3667 and RFC 3978 added explicit wording to further clarify that code extracts may be freely used by anybody: "(E) to extract, copy, publish, display, distribute, modify and incorporate into other works, for any purpose (and not limited to use within the IETF Standards Process) any executable code or code fragments that are included in any IETF Document...". However, RFC 3667 and RFC 3978 do not mention the category of "derivative works that comment on or otherwise explain..." For contributions made when they were in force, use of non-code extracts for commentary and explanation outside the IETF process appears formally to require explicit permission from the original contributors. In many jurisdictions, this might fall under the "fair use" provisions of copyright law or their local equivalent, and in any case most RFC authors would be glad of such use.

[RFC5378] (Bradner, S. and J. Contreras, “Rights Contributors Provide to the IETF Trust,” November 2008.) extends the rights granted by contributors to the IETF (in practice, the IETF Trust) such that the IETF itself (via the Trust) can grant the right to make derivative works to third parties. Short of a full copyright transfer to the IETF, this cleans up the situation for new documents. It allows the IETF to grant rights to third parties to make use of new IETF documents in any way the IETF is happy with, and it leaves the original contributors free to do what they want with their own work (even in ways the IETF is unhappy with).

As noted in the Introduction, there is an issue if a current IETF contribution, submitted under the new rules of RFC 5378, includes material originally submitted by a different contributor under one of the previous rules (including prior to RFC 2026 when there was no rule). Suppose Alice plans to submit a draft under RFC 5378 containing a modified version of a section of an RFC originally submitted by Bob under one of the older rules. This is a very common situation, for example when a protocol needs clarification or correction, or a new version is most conveniently documented by revising the old text. There are several possible approaches, all of which appear to fully respect Bob's rights without significantly delaying publication:

1. Alice realises that the old material was written by a large number of "Bobs", or by people no longer active in the IETF and possibly even deceased, or by people who no longer work for the employer to whom their copyright was assigned by their conditions of employment, or any other situation where obtaining their agreement is a substantial effort or a practical impossibility. In this case, Alice includes acknowledgments and the disclaimer, and we are done. The acknowledgment will look something like "Significant amounts of text in sections X, Y and Z have been adapted from RFCxxxx written by Bob."
2. Alice looks at the IETF Trust web site, and finds that the previous RFC is listed as already being OK for use under RFC 5378 conditions, or that Bob and his employer are listed as allowing any of their contributions to be so used. Alice submits a draft using the normal RFC 5378 boilerplate, and includes an acknowledgement of Bob's contribution, such as: "Significant amounts of text have been adapted from RFCxxxx written by Bob, who has agreed to the text being submitted under the IETF's current copyright provisions".
3. Alice can easily find Bob's email address and he rapidly agrees that his old contribution may be used under current IETF rules. Alice submits a draft with the same acknowledgment as Option 2.
4. Similar, except that Bob prefers to be listed as a co-author. Again, the normal RFC 5378 boilerplate will be used.
5. Similar, except that this would increase the number of listed authors above the limit preferred by the RFC Editor. In this case, a list of fully identified Contributors would be used, as defined in the RFC Editor's Editorial Guidelines.
6. Bob doesn't reply in a reasonable period of time, or says he doesn't agree, or says that his previous employer actually owns the rights, and it would take months of discussion with their lawyers to get agreement. In such cases, Alice has wasted her time, and she reverts to Option 1 above.

The same possibilities would apply to text from an Internet-Draft submitted prior to RFC 5378, or to text posted as email as part of an IETF discussion prior to RFC 5378.

There is scope for judgment and common sense when using small fragments of text, whether taken from speech, email, a draft, or an RFC. This Appendix doesn't define rules or offer legal advice about the copyright status of odd phrases and sentences culled from normal ongoing IETF discussion prior to RFC 5378. However, the originators of such fragments have the chance to complain about their use during Working Group or IETF Last Call. Of course, when in doubt, it is always safe to include the disclaimer.

Note that for jointly written drafts, all direct and indirect contributors take responsibility for identifying pre-5378 text from other contributors. If Alice submits a draft written by herself, Alicia and Alize, all three are responsible for verifying that any old text from other contributions that they have re-used is handled according to this document.

What amounts to a reasonable amount of time to wait for Bob to reply, when trying Options 3 through 6 above? There is normally no reason to wait more than a few days. If the issue is considered unusually important for some reason, it will be a matter of judgment how hard to work on getting agreement from Bob and possibly his previous employer. The WG Chair, the Area Director, or the IETF Trust might be asked to assist. However, it seems likely that in most cases, that much effort will seem excessive, and it will be fine to include the disclaimer. It should be remembered that the IETF's ability to do its own work is absolutely unaffected by this result.

What amounts to sufficient agreement from Bob? The IETF process takes place mainly on-line, so a clear email agreeing to RFC 5378 conditions should be enough. However, it would be better if Bob also provides the hard-copy general non-exclusive license suggested by the IETF Trust. If Bob writes that he is replying on behalf of his co-contributors, that should also be enough. But if Bob states that he cannot speak for his previous employers, that is not enough on its own. In many cases, employment laws or contracts do not leave Bob with copyright in his own writings, so the previous employer's agreement is needed. The best way for that to happen is for the employer concerned to sign the Trust's general license. In most cases, it probably isn't reasonable for Alice to pursue this option herself.

It should be noted that when the disclaimer is included, the situation for a third party wishing to re-use the old text is exactly as it always has been: the third party has to identify the legitimate copyright holder(s) ("Bob") and get their permission. The IETF, the IETF Trust, and the recent contributors ("Alice") are not concerned.

The procedure defined in the main body of this document is intended to ensure that in the case of affected documents, the contributors do not waste their time. They, or people acting on their behalf, may choose to make a modest and reasonable effort to gain agreement from earlier contributors that RFC 5378 rules may be applied (basically, checking the IETF Trust web site, and if necessary, sending "Bob" an email). But they have a simple and straightforward default choice - the disclaimer - which leaves all parties no worse off than under the old rules. And in all cases, normal good practice is followed by including an acknowledgment.

Authors' Addresses