Internet DRAFT - draft-farrresnickel-ipr-sanctions
draft-farrresnickel-ipr-sanctions
Network Working Group A. Farrel
Internet Draft Juniper Networks
Category: Informational P. Resnick
Qualcomm
Expires: 21 December 2012 21 June 2012
Sanctions Available for Application to Violators of IETF IPR Policy
draft-farrresnickel-ipr-sanctions-07.txt
Abstract
The IETF has developed and documented policies that govern the
behavior of all IETF participants with respect to Intellectual
Property Rights (IPR) about which they might reasonably be aware.
The IETF takes conformance to these IPR policies very seriously.
However, there has been some ambiguity as to what the appropriate
sanctions are for the violation of these policies, and how and by
whom those sanctions are to be applied.
This document discusses these issues and provides a suite of
potential actions that can be taken within the IETF community in
cases related to patents.
Status of this Memo
This Internet-Draft is submitted to IETF in full conformance with the
provisions of BCP 78 and BCP 79.
Internet-Drafts are working documents of the Internet Engineering
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groups may also distribute working documents as Internet-Drafts.
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The list of current Internet-Drafts can be accessed at
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Copyright Notice
Copyright (c) 2012 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
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Provisions Relating to IETF Documents
(http://trustee.ietf.org/license-info) in effect on the date of
publication of this document. Please review these documents
carefully, as they describe your rights and restrictions with respect
to this document. Code Components extracted from this document must
include Simplified BSD License text as described in Section 4.e of
the Trust Legal Provisions and are provided without warranty as
described in the Simplified BSD License.
1. Introduction
The IETF has developed and documented policies that govern the
behavior of all IETF participants with respect to intellectual
property about which they might reasonably be aware. These are
documented in [BCP79] and are frequently brought to the attention of
IETF participants. This document summarises and references those
policies, but does not replace or stand in for the full statement of
the policies found in [BCP79]. Readers and IETF participants need to
be aware of the content of [BCP79].
The policies set out in [BCP79] state that each individual
participant is responsible for disclosing or ensuring the disclosure
of Intellectual Property Rights (IPR) where all of the following
apply:
- they are aware of the IPR
- the IPR is relevant to the IETF work they are participating in
- the IPR is owned by the individual or by a company that employs or
sponsors the individual's work.
Conformance to these IPR policies is very important, and there is a
need to understand both what sanctions can be applied to participants
who violate the policies, and who is in a position to apply the
sanctions.
This document discusses these issues and provides a suite of
potential actions that can be taken within the IETF community in
cases related to patents. All of these sanctions are currently
available in IETF processes, and at least two instances of violation
of the IPR policy have been handled using some of the sanctions
listed. As explicitly called out in Section 4, a posting rights (PR)
action described in [RFC2418] as updated by [RFC3934], and in
[RFC3683], is an applicable sanction for the case of a breach of the
IETF's IPR policy.
Note: This document specifies some administrative sanctions that
can be imposed by and through IETF administrative processes. In
particular, this document does not address or limit other legal
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sanctions, rights, or remedies that are available outside of the IETF
or any of the legal rights or remedies that anyone has regarding IPR.
This document does not consider the parallel, but important, issue of
ways to actively promote conformance with the IETF's IPR policy.
That topic is discussed in [Promote].
2. Description of IETF IPR Policy
The IETF's IPR policy is set out in [BCP79]. Nothing in this
document defines or redefines the IETF's IPR policy. This section
simply highlights some important aspects of those policies.
Additional information on the IETF's IPR policy may be found at
[URLIPR] and [URLIESGIPR].
2.1. Responsibilities of IETF Participants and Timeliness
According to [BCP79], individual IETF participants have a
personal responsibility to disclose or ensure the timely disclosure
of IPR of which they are aware and which they own or which is owned
by a company that employs or sponsors them, and which impinges upon
the contribution that they make to the IETF.
A "contribution" is also defined in [BCP79] and includes Internet-
Drafts, emails to IETF mailing lists, presentations at IETF meetings,
and comments made at the microphone during IETF meetings. Remote
participants as well as those participating in person at IETF
meetings are bound by this definition.
The timeliness of disclosure is very important within [BCP79]. No
precise definition of "timeliness" is given in [BCP79] and it is not
the purpose of this document to do so. But it is important to
understand that the impact that an IPR disclosure has on the smooth
working of the IETF is directly related to how late in the process
the disclosure is made. Thus, a disclosure made on a published RFC
is very likely to be more disruptive to the IETF than such a
disclosure on an early revision of an individual submission of an
Internet-Draft.
Third-party disclosures can also be made giving the reasoning by
anyone who has cause to believe that IPR exists.
It is important to note that each individual IETF participant has a
choice under the IETF's IPR policy. If the individual is unwilling
or unable to disclose the existence of relevant IPR in a timely
manner, that individual has the option to refrain from contributing
to and participating in IETF activities about the technology covered
by the IPR.
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2.2. How Attention is Drawn to These Responsibilities
The IETF draws the attention of all participants to the IPR policy
[BCP79] through the "Note Well" statement that appears on the IETF
web pages [URLNoteWell], in presentations at working group and
plenary meetings, as well as in the boilerplate text appearing in
each Internet-Draft and RFC. Additionally, the Note Well statement
is accepted by any person signing up to join an email list hosted at
ietf.org.
[Promote] suggests a number of additional ways in which the attention
of IETF participants can be drawn to the IPR policy.
2.3. How IPR Disclosures are Made
The procedure for filing IPR disclosures is shown on the IETF's web
site at [URLDisclose]. Third-party disclosures can also be made by
email to the IETF Secretariat or via the web page.
Note that early disclosures or warnings that there might be IPR on a
technology can also be made.
2.4. How Working Groups Consider IPR Disclosures
In the normal course of events, a working group that is notified of
the existence of IPR must make a decision about whether to continue
with the work as it is, or whether to revise the work to attempt to
avoid the IPR claim. This decision is made on the working group's
mailing list using normal rough consensus procedures. However,
discussions of the applicability of an IPR claim or of the
appropriateness or merit of the IPR licensing terms are outside the
scope of the WG. The IPR situation is considered by working group
participants as the document advances through the development process
[RFC2026], in particular at key times such as adoption of the
document by the working group, and during last call.
It needs to be clearly understood that the way that the working group
handles an IPR disclosure is distinct from the sanctions that can be
applied to the individuals who violated the IETF's IPR policy. That
is, the decision by a working group to, for example, entirely re-work
an Internet-Draft in order to avoid a piece of IPR that has been
disclosed should not be seen as a sanction against the authors.
Indeed, and especially in the case of a late IPR disclosure, that a
working group decides to do this can be considered a harmful side
effect on the working group (in that it slows down the publication of
an RFC and might derail other work the working group could be doing)
and should be considered as one of the reasons to apply sanctions to
the individuals concerned as described in the next two sections.
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2.5. The Desire for Sanctions
Not conforming to the IETF's IPR policy undermines the work of the
IETF, and sanctions ought to be applied against offenders.
2.6 Severity of Violations
Clearly there are different sorts of violations of IPR policy.
Sometimes, a working group participant simply does not realize that
the IPR that they invented applies to a particular working group
draft. Sanctions (if any) need not be at all severe. However, a
working group document editor who waits until near the publication
of a document to reveal IPR of which they themselves are the author
should be subject to more serious sanctions. These are judgments
that can be made by the working group chairs and area director.
This topic forms the bulk of the material in Sections 5 and 6.
3. Who Initiates Sanctions
Any IETF participant can draw attention to an apparent violation
of the IETF's IPR policy. This can be done by sending email to
the appropriate IETF mailing list including a short summary of
the relevant facts and events. Normally the working group chairs and
area directors assume the responsibility for ensuring the smooth
running of the IETF and for the enforcement of IETF policies
including the IPR policy. Thus, when sanctions are appropriate,
working group chairs will be the first actors when there is an active
working group involved in the technical work, and area directors will
be the first actors in other cases. The first step will usually be
the working group chairs or area director to gather the facts and
discuss the matter with the IETF participants involved.
Working group chairs are already empowered to take action against
working group participants who flout the IPR rules and so disrupt
the smooth running of the IETF or a specific working group, just as
they can take such action in the face of other disruptions.
The working group chairs have the responsibility to select the
appropriate actions since they are closest to the details of the
issue. Where there is no working group involved or where making the
decision or applying the sanctions is uncomfortable or difficult for
the working group chairs, the responsible AD is available to guide or
direct the action if necessary.
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4. Available Sanctions
This section lists some of the sanctions available to handle the
case of an individual who violates the IETF's IPR policies. It is
not intended to be an exhaustive list, nor is it suggested that only
one sanction be applied in any case. Furthermore, it is not suggested
here that every case of IPR policy infringement is the same or that
the severest sanctions may be applied in each case.
In many cases, it may be appropriate to notify a wider IETF community
of the violation and sanctions so that patterns of behavior can be
spotted and handled.
The sanctions are listed in approximate order of severity, but the
ordering should not be taken as definitive or as driving different
decisions in different cases. Section 5 provides some notes on
fairness, while Section 6 gives some guidance on selecting an
appropriate sanction in any specific case.
a. A private discussion between the working group chair or area
director and the individual to understand what went wrong and
how it can be prevented in the future.
b. A formal, but private, warning that the individuals must improve
their behavior or risk one of the other sanctions.
c. A formal warning on an IETF mailing list that the individuals
must improve their behavior or risk one of the other sanctions.
d. Announcement to the working group of failure by the individuals
("name and shame").
e. On-going refusal to accept the individuals as editors of any new
working group documents. The appointment of editors of working
group documents is entirely at the discretion of the working
group chairs acting for the working group as explained in
[RFC2418].
f. Removal of the individuals as working group document editors on
specific documents or across the whole working group.
g. Re-positioning of the individuals' attribution in a document to
the "Acknowledgements" section with or without a note explaining
why they are listed there and not in the "Authors' Addresses"
section (viz. the IPR policy violation). This action can also be
recorded by the area director in the datatracker entries for the
documents concerned.
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h. Deprecation or rejection of the individual document (whether it
be an RFC or Internet-Draft) or cessation of work on the affected
technology.
i. Application of a temporary suspension of indiviuals' posting
rights to a specific mailing list according to the guidelines
expressed in [RFC2418] and updated by [RFC3934]. Such bans are
applied to specific individuals and to individual working group
mailing lists at the discretion of the working group chairs for a
period of no more than 30 days.
j. The removal of individuals' posting privileges using a Posting
Rights Action (PR Action) as per [RFC3683]. This is a more
drastic measure that can be applied when other sanctions are
considered insufficient or to have been ineffective. When a PR
action is in place, the subjects have their posting rights to a
particular IETF mailing list removed for a period of a year
(unless the action is revoked or extended), and maintainers of any
IETF mailing list may, at their discretion and without further
recourse to explanation or discussion, also remove posting rights.
PR actions are introduced by an area director and are considered
by the IETF community and the IESG in order to determine IETF
consensus.
Note that individuals who have supplied text that is included in an
IETF document (RFC or Internet-Draft) have a right to be recognized
for their contribution. This means that authors names cannot be
entirely removed from a document in the event that they violate the
IETF's IPR policy unless the text they contributed is also completely
removed. But the individual's name can be removed from the front
page and even moved from the "Authors' Addresses" section so long as
proper acknowledgement of the contribution is given in the
"Acknowledgements" section.
4.1. An Additional Note on the Applicability of PR Actions
The applicability of PR actions in the event of IPR policy possibly
needs some explanation. According to [RFC3683], a PR action may be
considered as a practice for use by the IETF in the case that "a
participant has engaged in a denial-of-service attack to disrupt the
consensus-driven process."
[RFC3683] further cites [RFC2418] and [RFC3005] for guidelines for
dealing with abusive behavior. [RFC2418] is updated by [RFC3934] in
this matter.
In some cases, ignoring or flouting the IETF's IPR policy may be
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considered as disruptive to the smooth operation of a working group
or of the whole IETF such that the offender might be deemed to be a
disruptive individual under the terms of [RFC2418], [RFC3934] and
[RFC3683], and so is liable to be the subject of a sanction that
restricts their rights to post to IETF mailing lists as described in
bullets h and i of Section 4 of this document.
5. A Note on Fairness and Appealing Decisions
As with all decisions made within the IETF, any person who feels that
they have been subject to unfair treatment or who considers that a
decision has been made incorrectly may appeal the decision. The
IETF's appeals procedures are described in Section 6.5 of [RFC2026]
and reinforced in the IESG statement at [URLIESG2026]. Any sanctions
described above may be appealed using these procedures.
6. Guidance on Selecting and Applying Sanctions
Whoever is applying sanctions for breaching the IETF's IPR policy
will want to be sure that the chosen sanction matches the severity of
the offence and considers all circumstances. The judgment needs to be
applied equitably should similar situations arise in the future.
If in any doubt, the person selecting and applying the sanctions
should seek the opinion of the relevant part of the IETF community
or the community as a whole. Furthermore, the person should not
hesitate to seek the advice of their colleagues (co-chairs, area
directors, or the whole IESG).
This is a judgment call based on all circumstances of each specific
case. Some notes on guidance are supplied in Appendix A.
7. Security Considerations
While nothing in this document directly affects the operational
security of the Internet, failing to follow the IETF's IPR policies
can be disruptive to the IETF's standards development processes and
so may be regarded as an attack on the correct operation of the IETF.
Furthermore, a late IPR disclosure (or a complete failure to
disclose), could represent an attack on the use of deployed and
operational equipment in the Internet.
8. IANA Considerations
This document makes no requests for IANA action.
[RFC Editor : You may remove this section before publication.]
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9. Acknowledgments
Thanks to Lou Berger, Ross Callon, Stewart Bryant, Jari Arkko, and
Peter Saint-Andre for comments on an early version of this document.
Thanks to Subramanian Moonesamy and Tom Petch for their comments on
the work. Thanks to Dan Wing, Tony Li, and Steve Bellovin for
discussions. Thanks to Stephen Farrell for providing a thorough
review as document shepherd.
Additional thanks for textual improvements around IETF last call go
to Randy Bush, Brian Carpenter, Jorge Contreras, Russ Housley,
Barry Leiba, Murray S. Kucherawy, Benoit Claise, Sean Turner, and
Stewart Bryant.
10. Authors' Addresses
Adrian Farrel
Juniper Networks
adrian@olddog.co.uk
Pete Resnick
Qualcomm
presnick@qualcomm.com
11. References
11.1. Normative References
[BCP79] S. Bradner, "Intellectual Property Rights in IETF
Technology", BCP 79, RFC 3979, March 2005.
[RFC2026] S. Bradner, "The Internet Standards Process - Revision 3",
BCP 9, RFC 2026, October 1996.
[RFC2418] S. Bradner, "IETF Working Group Guidelines and
Procedures", BCP 25, RFC 2418, September 1998.
[RFC3683] M. Rose, "A Practice for Revoking Posting Rights to IETF
Mailing Lists", BCP 83, RFC 3683, March 2004.
[RFC3934] M. Wasserman, "Updates to RFC 2418 Regarding the
Management of IETF Mailing Lists", BCP 94, RFC 3934,
October 2004.
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11.2. Informative References
[RFC3005] S. Harris, "IETF Discussion List Charter", BCP 45,
RFC 3005, November 2000.
[Promote] Polk, T. and Saint-Andre, P., "Promoting Compliance with
Intellectual Property Rights (IPR) Disclosure Rules",
draft-polk-ipr-disclosure, work in progress.
[URLDisclose] http://www.ietf.org/ipr/file-disclosure
[URLIESG2026] http://www.ietf.org/iesg/statement/appeal.html
[URLIESGIPR]
http://trac.tools.ietf.org/group/iesg/trac/wiki/IntellectualProperty
[URLIPR] http://www.ietf.org/ipr/policy.html
[URLNoteWell] http://www.ietf.org/about/note-well.html
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Appendix A. Guidance on Selecting and Applying Sanctions
As discussed in Section 6, the selection of sanctions needs to be a
carefully made judgment call considering all relevant circumstances
and events. This Appendix provides a list of things that might form
part of that judgment.
This list of considerations is for guidance and is not prescriptive
or exhaustive, nor does it imply any weighting of the considerations.
- How long has the participant been active in the IETF?
- Was there some exceptional circumstance?
- Are there special circumstances that imply that the individual
would not have seen or understood the pointers to and content of
[BCP79]?
- How late was the disclosure? Is the document already a working
group document? How many revisions have been published? How much
time has elapsed? Have last calls been held? Has the work been
published as an RFC?
- Was the individual a minor contributor to the IETF work, or are
they clearly a major contributor?
- Is there a reason for the individual forgetting the existence of
the IPR (for example, it was filed many years previous to the work
in the IETF)?
- Was the individual told by their company that disclosure was
imminent, but then something different happened?
- How speedy and humble was the individual's apology?
- How disruptive to the IETF work are the disclosure and the
associated license terms? A factor in this will be whether the
IETF community sees the need to re-work the document or not.
- Does the large number of patents that the individual has invented
provide any level of excuse for failing to notice that one of
their patents covered the IETF work?
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