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Checking references for intended status: Informational ---------------------------------------------------------------------------- ** Obsolete normative reference: RFC 3979 (ref. 'BCP79') (Obsoleted by RFC 8179) == Outdated reference: draft-polk-ipr-disclosure has been published as RFC 6702 Summary: 1 error (**), 0 flaws (~~), 2 warnings (==), 1 comment (--). Run idnits with the --verbose option for more detailed information about the items above. -------------------------------------------------------------------------------- 1 Network Working Group A. Farrel 2 Internet Draft Juniper Networks 3 Category: Informational P. Resnick 4 Qualcomm 5 Expires: 26 September 2012 26 March 2012 7 Sanctions Available for Application to Violators of IETF IPR Policy 9 draft-farrresnickel-ipr-sanctions-04.txt 11 Abstract 13 The IETF has developed and documented policies that govern the 14 behavior of all IETF participants with respect to Intellectual 15 Property Rights (IPR) about which they might reasonably be aware. 17 The IETF takes conformance to these IPR policies very seriously. 18 However, there has been some ambiguity as to what the appropriate 19 sanctions are for the violation of these policies, and how and by 20 whom those sanctions are to be applied. 22 This document discusses these issues and provides a suite of 23 potential actions that may be taken within the IETF community. 25 Status of this Memo 27 This Internet-Draft is submitted to IETF in full conformance with the 28 provisions of BCP 78 and BCP 79. 30 Internet-Drafts are working documents of the Internet Engineering 31 Task Force (IETF), its areas, and its working groups. Note that other 32 groups may also distribute working documents as Internet-Drafts. 34 Internet-Drafts are draft documents valid for a maximum of six months 35 and may be updated, replaced, or obsoleted by other documents at any 36 time. It is inappropriate to use Internet-Drafts as reference 37 material or to cite them other than as "work in progress." 39 The list of current Internet-Drafts can be accessed at 40 http://www.ietf.org/ietf/1id-abstracts.txt 42 The list of Internet-Draft Shadow Directories can be accessed at 43 http://www.ietf.org/shadow.html 45 Copyright Notice 47 Copyright (c) 2012 IETF Trust and the persons identified as the 48 document authors. All rights reserved. 50 This document is subject to BCP 78 and the IETF Trust's Legal 51 Provisions Relating to IETF Documents 52 (http://trustee.ietf.org/license-info) in effect on the date of 53 publication of this document. Please review these documents 54 carefully, as they describe your rights and restrictions with respect 55 to this document. Code Components extracted from this document must 56 include Simplified BSD License text as described in Section 4.e of 57 the Trust Legal Provisions and are provided without warranty as 58 described in the Simplified BSD License. 60 1. Introduction 62 The IETF has developed and documented policies that govern the 63 behavior of all IETF participants with respect to intellectual 64 property about which they might reasonably be aware. These are 65 documented in [BCP79] and are frequently brought to the attention of 66 IETF participants. In short, the policies state that each individual 67 participant is responsible for disclosing or ensuring the disclosure 68 of Intellectual Property Rights (IPR) of which they are aware, that 69 are relevant to the work with which they participate through the 70 IETF, and where the IPR is owned by a company that employs or 71 sponsors the individual's work. 73 Conformance to these IPR policies is very important, and there is a 74 need to understand both what sanctions may be applied to participants 75 who violate the policies, and who may apply those sanctions. 77 This document discusses these issues and provides a suite of 78 potential actions that may be taken within the IETF community. All 79 of these sanctions are currently available in IETF processes, and two 80 instances of violation of the IPR policy have been handled using some 81 of the sanctions listed. As explicitly called out in Section 4, 82 a posting rights (PR) action described in [RFC2418] as updated by 83 [RFC3934], and in [RFC3683] is an applicable sanction for the case of 84 a breach of the IETF's IPR policy. 86 This document does not consider the parallel, but important issue of 87 ways to actively promote conformance with the IETF's IPR policy. 88 That topic is discussed in [Promote]. 90 2. Description of IETF IPR Policy 92 The IETF's IPR policy is set out in [BCP79]. Nothing in this 93 document defines or redefines the IETF's IPR policy. This section 94 simply highlights some important aspects of those policies. 96 Additional information on the IETF's IPR policy may be found at 97 [URLIPR] and [URLIESGIPR]. 99 2.1. Responsibilities of IETF Participants and Timeliness 101 According to [BCP79], individual IETF participants have a 102 personal responsibility to disclose or ensure the timely disclosure 103 of IPR of which they are aware and which they own or which is owned 104 by a company that employs or sponsors them, and which impinges upon 105 the contribution that they make to the IETF. 107 A "contribution" is also defined in [BCP79] and includes Internet- 108 Drafts, emails to IETF mailing lists, presentations at IETF meetings, 109 and comments made at the microphone during IETF meetings. 111 The timeliness of disclosure is very important within [BCP79]. No 112 precise definition of "timeliness" is given in [BCP79] and it is not 113 the purpose of this document to do so. But it is important to 114 understand that the impact that an IPR disclosure has on the smooth 115 working of the IETF is an inverse function of its timeliness. Thus, 116 a disclosure made on a published RFC will be more disruptive to the 117 IETF than such a disclosure on an early revision of an individual 118 submission of an Internet-Draft. 120 Third-party disclosures may also be made by anyone who believes that 121 IPR may exist. 123 It is important to note that each individual IETF participant has a 124 choice under the IETF's IPR policy. If the individual is unwilling 125 or unable to disclose the existence of relevant IPR in a timely 126 manner, that individual has the option to refrain from participating 127 in IETF discussions about the technology covered by the IPR 129 2.2. How Attention is Drawn to These Responsibilities 131 The IETF draws the attention of all participants to the IPR policy 132 [BCP79] through the "Note Well" statement on the IETF web pages 133 [URLNoteWell], presentations at working group and plenary meetings, 134 and in printed materials handed out at IETF meetings, as well as in 135 the boilerplate text appearing in each Internet-Draft and RFC. 137 2.3. How IPR Disclosures are Made 139 The procedure for filing IPR disclosures is shown on the IETF's web 140 site at [URLDisclose]. Third-party disclosures may also be made by 141 email to the IETF Secretariat or via the web page. 143 Note that early disclosures or warnings that there might be IPR on a 144 technology may also be made. 146 2.4. How Working Groups Consider IPR Disclosures 148 In the normal course of events, a working group that is notified of 149 the existence of IPR must make a decision about whether to continue 150 with the work as it is, or whether to revise the work to attempt to 151 avoid the IPR claim. This decision is made on the working group's 152 mailing list using normal rough consensus procedures. However, the 153 working group does not discuss the applicability of an IPR claim nor 154 the appropriateness or merit of the IPR licensing terms as these are 155 outside the scope of the technical work of the WG. The IPR situation 156 is considered by working group participants as the document advances 157 through the development process [RFC2026], in particular at key 158 times such as adoption of the document by the working group, and 159 during last call. 161 It needs to be clearly understood that the way that the working group 162 handles an IPR disclosure is distinct from the sanctions that may be 163 applied to the individuals who violated the IETF's IPR policy. That 164 is, the decision by a working group to, for example, entirely re-work 165 an Internet-Draft in order to avoid a piece of IPR that has been 166 disclosed should not be seen as a sanction against the authors. 167 Indeed, and especially in the case of a late IPR disclosure, that a 168 working group decides to do this may be considered a harmful side 169 effect on the working group (in that it slows down the publication of 170 an RFC and may derail other work the working group could be doing) 171 and should be considered as one of the reasons to apply sanctions to 172 the individuals concerned as described in the next two sections 174 2.5. The Desire for Sanctions 176 Not conforming to the IETF's IPR policy undermines the work of the 177 IETF, and sanctions should be applied against offenders. 179 2.6 Severity of Violations 181 Clearly there are different sorts of violations of IPR policy. 182 Sometimes, a working group participant simply does not realize that 183 the IPR that they invented applies to a particular working group 184 draft. Sanctions (if any) need not be at all severe. However, a 185 working group document editor who waits until near the publication 186 of a document to reveal IPR of which they themselves are the author 187 should be subject to more serious sanctions. These are judgments 188 that can be made by the working group chairs and area director. 190 This topic forms the bulk of the material in Sections 5 and 6. 192 3. Who May Call For and Apply Sanctions 194 Any IETF participant can call for sanctions to be applied to anyone 195 they believe has violated the IETF's IPR policy. Normally, however, 196 the working group chairs and area directors assume the responsibility 197 for ensuring the smooth-running of the IETF and for the enforcement 198 of IETF policies including the IPR policy. Thus, when sanctions are 199 called for, working group chairs will be the first actors when there 200 is an active working group involved in the technical work, and area 201 directors will be the first actors in other cases. 203 Working group chairs are already empowered to take action against 204 working group participants who flout the IPR rules and so disrupt 205 the smooth running of the IETF or a specific working group, just as 206 they can take such action in the face of other disruptions. 208 The working group chairs have the responsibility to select the 209 appropriate actions since they are closest to the details of the 210 issue. Where there is no working group involved or where making the 211 decision or applying the sanctions is uncomfortable or difficult for 212 the working group chairs, the responsible AD is available to guide or 213 direct the action if necessary. 215 4. Available Sanctions 217 This section lists some of the sanctions available to handle the 218 case of an individual who violates the IETF's IPR policies. It is 219 not intended to be an exhaustive list, nor is it suggested that only 220 one sanction be applied in any case. Furthermore, it is not suggested 221 here that every case of IPR policy infringement is the same or that 222 the severest sanctions should be applied in each case. 224 The sanctions are listed in approximate order of severity, but the 225 ordering should not be taken as definitive or as driving different 226 decisions in different cases. Section 6 gives some guidance on 227 selecting an appropriate sanction in any specific case, while Section 228 5 provides some notes on fairness. 230 a. A private discussion between the working group chair or area 231 director and the individual to understand what went wrong and 232 how it can be prevented in the future. 234 b. A formal, but private warning that the individuals must improve 235 their behavior or risk one of the other sanctions. 237 c. A formal warning on an IETF mailing list that the individuals 238 must improve their behavior or risk one of the other sanctions. 240 d. Announcement to the working group of failure by the individuals 241 ("name and shame"). 243 e. On-going refusal to accept the individuals as editors of any new 244 working group documents. The appointment of editors of working 245 group documents is entirely at the discretion of the working 246 group chairs acting for the working group as explained in 247 [RFC2418]. 249 f. Removal of the individuals as working group document editors on 250 specific documents or across the whole working group. 252 g. Re-positioning of the individual's attribution in a document to 253 the "Acknowledgements" section with or without a note explaining 254 why they are listed there and not in the "Authors' Addresses" 255 section (viz. the IPR policy violation). This action can also be 256 recorded by the area director in the datatracker entries for the 257 documents concerned. 259 h. Deprecation or rejection of the individual document (whether it 260 be an RFC or Internet-Draft) or cesation of work on the affected 261 technology. 263 i. Application of a temporary suspension of posting rights to a 264 specific mailing list according to the guidelines expressed in 265 [RFC2418] and updated by [RFC3934]. Such bans are applied to 266 specific to individual working group mailing lists at the 267 discretion of the working group chairs for a period of no more 268 than 30 days. 270 j. The removal of posting privileges using a Posting Rights Action 271 (PR Action) as per [RFC3683]. This is a more drastic measure 272 that can be applied when other sanctions are considered 273 insufficient or to have been ineffective. When a PR action is in 274 place, the subjects have their posting rights to particular IETF 275 mailing list removed for a period of a year (unless the action is 276 revoked or extended), and maintainers of any IETF mailing list 277 may, at their discretion and without further recourse to 278 explanation or discussion, also remove posting rights 280 PR actions are introduced by an area director and are considered 281 by the IETF community and the IESG in order to determine IETF 282 consensus. 284 In many cases, it may be appropriate to notify a wider IETF community 285 of the violation and sanctions so that patterns of behavior can be 286 spotted and handled. 288 Note that individuals who have supplied text that is included in an 289 IETF document (RFC or Internet-Draft) have a right to be recognized 290 for their contribution. This means that authors names cannot be 291 entirely removed from a document in the event that they violate the 292 IETF's IPR policy unless the text they contributed is also completely 293 removed. But the individual's name can be removed from the front 294 page and even moved from the "Authors' Addresses" section so long as 295 proper acknowledgement of the contribution is given in the 296 "Acknowledgements" section. 298 4.1. An Additional Note on the Applicability of PR Actions 300 The applicability of PR actions in the event of IPR policy possibly 301 needs some explanation. According to [RFC3683], a PR action may be 302 considered as a practice for use by the IETF in the case that "a 303 participant has engaged in a denial-of-service attack to disrupt the 304 consensus-driven process." 306 [RFC3683] further cites [RFC2418] and [RFC3005] for guidelines for 307 dealing with abusive behavior. [RFC2418] is updated by [RFC3934] in 308 this matter. 310 In some cases, ignoring or flouting the IETF's IPR policy may be 311 considered as disruptive to the smooth operation of a working group 312 or of the whole IETF such that the offender might be deemed to be a 313 disruptive individual under the terms of [RFC2418], [RFC3934] and 314 [RFC3683], and so is liable to be the subject of a sanction that 315 restricts their rights to post to IETF mailing lists as described in 316 bullets h and i of Section 4 of this document. 318 5. A Note on Fairness and Appealing Decisions 320 As with all decisions made within the IETF, any person who feels that 321 they have been subject to unfair treatment or who considers that a 322 decision has been made incorrectly may appeal the decision. The 323 IETF's appeals procedures are described in Section 6.5 of [RFC2026] 324 and reinforced in the IESG statement at [URLIESG2026]. Any sanctions 325 described above may be appealed using these procedures. 327 6. Guidance on Selecting and Applying Sanctions 329 Whoever is applying sanctions for breaching the IETF's IPR policy 330 will want to be sure that the chosen sanction matches the severity of 331 the offence and considers all circumstances. The judgment needs to be 332 applied equitably should similar situations arise in the future. 334 If in any doubt, the person selecting and applying the sanctions 335 should seek the opinion of the relevant part of the IETF community 336 or the community as a whole. Furthermore, the person should not 337 hesitate to seek the advice of their colleagues (co-chairs, area 338 directors, or the whole IESG). 340 This is a judgment call based on all circumstances of each specific 341 case. Some notes on guidance are supplied in Appendix A. 343 7. Security Considerations 345 While nothing in this document directly affects the operational 346 security of the Internet, failing to follow the IETF's IPR policies 347 can be disruptive to the IETF's standards development processes and 348 so may be regarded as an attack on the correct operation of the IETF. 349 Furthermore, a late IPR disclosure (or a complete failure to 350 disclose), could represent an attack on the use of deployed and 351 operational equipment in the Internet. 353 8. IANA Considerations 355 This document makes no requests for IANA action. 357 9. Acknowledgments 359 Thanks to Lou Berger, Ross Callon, Stewart Bryant, Jari Arkko, and 360 Peter Saint-Andre for comments on an early version of this document. 362 Thanks to Subramanian Moonesamy and Tom Petch for their comments on 363 the work. Thanks to Dan Wing, Tony Li, and Steve Bellovin for 364 discussions. 366 10. Authors' Addresses 368 Adrian Farrel 369 Juniper Networks 370 adrian@olddog.co.uk 372 Pete Resnick 373 Qualcomm 374 presnick@qualcomm.com 376 11. References 378 11.1. Normative References 380 [BCP79] S. Bradner, "Intellectual Property Rights in IETF 381 Technology", BCP 79, RFC 3979, March 2005. 383 [RFC2026] S. Bradner, "The Internet Standards Process - Revision 3", 384 BCP 9, RFC 2026, October 1996. 386 [RFC2418] S. Bradner, "IETF Working Group Guidelines and 387 Procedures", BCP 25, RFC 2418, September 1998. 389 [RFC3683] M. Rose, "A Practice for Revoking Posting Rights to IETF 390 Mailing Lists", BCP 83, RFC 3683, March 2004. 392 [RFC3934] M. Wasserman, "Updates to RFC 2418 Regarding the 393 Management of IETF Mailing Lists", BCP 94, RFC 3934, 394 October 2004. 396 11.2. Informative References 398 [RFC3005] S. Harris, "IETF Discussion List Charter", BCP 45, 399 RFC 3005, November 2000. 401 [Promote] Polk, T. and Saint-Andre, P., "Promoting Compliance with 402 Intellectual Property Rights (IPR) Disclosure Rules", 403 draft-polk-ipr-disclosure, work in progress. 405 [URLDisclose] http://www.ietf.org/ipr/file-disclosure 407 [URLIESG2026] http://www.ietf.org/iesg/statement/appeal.html 409 [URLIESGIPR] 410 http://trac.tools.ietf.org/group/iesg/trac/wiki/IntellectualProperty 412 [URLIPR] http://www.ietf.org/ipr/policy.html 414 [URLNoteWell] http://www.ietf.org/about/note-well.html 416 Appendix A. Guidance on Selecting and Applying Sanctions 418 As discussed in Section 6, the selection of sanctions needs to be a 419 carefully made judgment call considering all circumstances and 420 events. This Appendix provides a list of things that might form part 421 of that judgment. 423 This list of considerations is for guidance and is not prescriptive 424 or exhaustive, nor does it imply any weighting of the considerations. 426 - How long has the participant been active in the IETF? 428 - Was there some exceptional circumstance? 429 - Are there special circumstances that imply that the individual 430 would not have seen or understood the pointers to and content of 431 [BCP79]? 433 - How late was the disclosure? Is the document already a working 434 group document? How many revisions have been published? How much 435 time has elapsed? Have last calls be held? Has the work been 436 published as an RFC? 438 - Was the individual a minor contributor to the IETF work, or are 439 they clearly a major contributor? 441 - Is there a reason for the individual forgetting the existence of 442 the IPR (for example, it was filed many years previous to the work 443 in the IETF)? 445 - Was the individual told by their company that disclosure was 446 imminent, but then something different happened? 448 - How speedy and humble was the individual's apology? 450 - How disruptive to the IETF work are the disclosure and the 451 associated license terms? A factor in this will be whether the 452 IETF community sees the need to re-work the document or not. 454 - Does the large number of patents that the individual has invented 455 provide any level of excuse for failing to notice that one of 456 their patents covered the IETF work?