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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 'BCP79') (Obsoleted by RFC 8179) == Outdated reference: draft-polk-ipr-disclosure has been published as RFC 6702 Summary: 1 error (**), 0 flaws (~~), 2 warnings (==), 1 comment (--).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: 4 December 2012 4 June 2012 7 Sanctions Available for Application to Violators of IETF IPR Policy 9 draft-farrresnickel-ipr-sanctions-06.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 can be taken within the IETF community in 24 cases related to patents. 26 Status of this Memo 28 This Internet-Draft is submitted to IETF in full conformance with the 29 provisions of BCP 78 and BCP 79. 31 Internet-Drafts are working documents of the Internet Engineering 32 Task Force (IETF), its areas, and its working groups. Note that other 33 groups may also distribute working documents as Internet-Drafts. 35 Internet-Drafts are draft documents valid for a maximum of six months 36 and may be updated, replaced, or obsoleted by other documents at any 37 time. It is inappropriate to use Internet-Drafts as reference 38 material or to cite them other than as "work in progress." 40 The list of current Internet-Drafts can be accessed at 41 http://www.ietf.org/ietf/1id-abstracts.txt 43 The list of Internet-Draft Shadow Directories can be accessed at 44 http://www.ietf.org/shadow.html 46 Copyright Notice 48 Copyright (c) 2012 IETF Trust and the persons identified as the 49 document authors. All rights reserved. 51 This document is subject to BCP 78 and the IETF Trust's Legal 52 Provisions Relating to IETF Documents 53 (http://trustee.ietf.org/license-info) in effect on the date of 54 publication of this document. Please review these documents 55 carefully, as they describe your rights and restrictions with respect 56 to this document. Code Components extracted from this document must 57 include Simplified BSD License text as described in Section 4.e of 58 the Trust Legal Provisions and are provided without warranty as 59 described in the Simplified BSD License. 61 1. Introduction 63 The IETF has developed and documented policies that govern the 64 behavior of all IETF participants with respect to intellectual 65 property about which they might reasonably be aware. These are 66 documented in [BCP79] and are frequently brought to the attention of 67 IETF participants. This document summarises and references those 68 policies, but does not replace or stand in for the full statement of 69 the policies found in [BCP79]. Readers and IETF participants need to 70 be aware of the content of [BCP79]. 72 The policies set out in [BCP79] state that each individual 73 participant is responsible for disclosing or ensuring the disclosure 74 of Intellectual Property Rights (IPR) where: 76 - they are aware of the IPR 77 - the IPR is relevant to the IETF work they are participating in 78 - the IPR is owned by the individual or by a company that employs or 79 sponsors the individual's work. 81 Conformance to these IPR policies is very important, and there is a 82 need to understand both what sanctions can be applied to participants 83 who violate the policies, and who is in a position to apply the 84 sanctions. 86 This document discusses these issues and provides a suite of 87 potential actions that can be taken within the IETF community in 88 cases related to patents. All of these sanctions are currently 89 available in IETF processes, and at least two instances of violation 90 of the IPR policy have been handled using some of the sanctions 91 listed. As explicitly called out in Section 4, a posting rights (PR) 92 action described in [RFC2418] as updated by [RFC3934], and in 93 [RFC3683], is an applicable sanction for the case of a breach of the 94 IETF's IPR policy. 96 Note: This document specifies some administrative sanctions that 97 can be imposed by and through IETF administrative processes. In 98 particular, this document does not address or limit other legal 99 sanctions, rights, or remedies that are available outside of the IETF 100 or any of the legal rights or remedies that anyone has regarding IPR. 102 This document does not consider the parallel, but important, issue of 103 ways to actively promote conformance with the IETF's IPR policy. 104 That topic is discussed in [Promote]. 106 2. Description of IETF IPR Policy 108 The IETF's IPR policy is set out in [BCP79]. Nothing in this 109 document defines or redefines the IETF's IPR policy. This section 110 simply highlights some important aspects of those policies. 111 Additional information on the IETF's IPR policy may be found at 112 [URLIPR] and [URLIESGIPR]. 114 2.1. Responsibilities of IETF Participants and Timeliness 116 According to [BCP79], individual IETF participants have a 117 personal responsibility to disclose or ensure the timely disclosure 118 of IPR of which they are aware and which they own or which is owned 119 by a company that employs or sponsors them, and which impinges upon 120 the contribution that they make to the IETF. 122 A "contribution" is also defined in [BCP79] and includes Internet- 123 Drafts, emails to IETF mailing lists, presentations at IETF meetings, 124 and comments made at the microphone during IETF meetings. 126 The timeliness of disclosure is very important within [BCP79]. No 127 precise definition of "timeliness" is given in [BCP79] and it is not 128 the purpose of this document to do so. But it is important to 129 understand that the impact that an IPR disclosure has on the smooth 130 working of the IETF is directly related to how late in the process 131 the disclosure is made. Thus, a disclosure made on a published RFC 132 is very likely to be more disruptive to the IETF than such a 133 disclosure on an early revision of an individual submission of an 134 Internet-Draft. 136 Third-party disclosures can also be made giving the reasoning by 137 anyone who has cause to believe that IPR exists. 139 It is important to note that each individual IETF participant has a 140 choice under the IETF's IPR policy. If the individual is unwilling 141 or unable to disclose the existence of relevant IPR in a timely 142 manner, that individual has the option to refrain from participating 143 in IETF discussions about the technology covered by the IPR. 145 2.2. How Attention is Drawn to These Responsibilities 147 The IETF draws the attention of all participants to the IPR policy 148 [BCP79] through the "Note Well" statement that appears on the IETF 149 web pages [URLNoteWell], in presentations at working group and 150 plenary meetings, as well as in the boilerplate text appearing in 151 each Internet-Draft and RFC. Additionally, the Note Well statement 152 is accepted by any person signing up to join an email list hosted at 153 ietf.org. 155 [Promote] suggests a number of additional ways in which the attention 156 of IETF participants can be drawn to the IPR policy. 158 2.3. How IPR Disclosures are Made 160 The procedure for filing IPR disclosures is shown on the IETF's web 161 site at [URLDisclose]. Third-party disclosures can also be made by 162 email to the IETF Secretariat or via the web page. 164 Note that early disclosures or warnings that there might be IPR on a 165 technology can also be made. 167 2.4. How Working Groups Consider IPR Disclosures 169 In the normal course of events, a working group that is notified of 170 the existence of IPR must make a decision about whether to continue 171 with the work as it is, or whether to revise the work to attempt to 172 avoid the IPR claim. This decision is made on the working group's 173 mailing list using normal rough consensus procedures. However, 174 discussions of the applicability of an IPR claim or of the 175 appropriateness or merit of the IPR licensing terms are outside the 176 scope of the WG. The IPR situation is considered by working group 177 participants as the document advances through the development process 178 [RFC2026], in particular at key times such as adoption of the 179 document by the working group, and during last call. 181 It needs to be clearly understood that the way that the working group 182 handles an IPR disclosure is distinct from the sanctions that can be 183 applied to the individuals who violated the IETF's IPR policy. That 184 is, the decision by a working group to, for example, entirely re-work 185 an Internet-Draft in order to avoid a piece of IPR that has been 186 disclosed should not be seen as a sanction against the authors. 187 Indeed, and especially in the case of a late IPR disclosure, that a 188 working group decides to do this can be considered a harmful side 189 effect on the working group (in that it slows down the publication of 190 an RFC and might derail other work the working group could be doing) 191 and should be considered as one of the reasons to apply sanctions to 192 the individuals concerned as described in the next two sections. 194 2.5. The Desire for Sanctions 196 Not conforming to the IETF's IPR policy undermines the work of the 197 IETF, and sanctions ought to be applied against offenders. 199 2.6 Severity of Violations 201 Clearly there are different sorts of violations of IPR policy. 202 Sometimes, a working group participant simply does not realize that 203 the IPR that they invented applies to a particular working group 204 draft. Sanctions (if any) need not be at all severe. However, a 205 working group document editor who waits until near the publication 206 of a document to reveal IPR of which they themselves are the author 207 should be subject to more serious sanctions. These are judgments 208 that can be made by the working group chairs and area director. 210 This topic forms the bulk of the material in Sections 5 and 6. 212 3. Who Initiates Sanctions 214 Any IETF participant can draw attention to an apparent violation 215 of the IETF's IPR policy. This can be done by sending email to 216 the appropriate IETF mailing list including a short summary of 217 the relevant facts and events. Normally the working group chairs and 218 area directors assume the responsibility for ensuring the smooth 219 running of the IETF and for the enforcement of IETF policies 220 including the IPR policy. Thus, when sanctions are appropriate, 221 working group chairs will be the first actors when there is an active 222 working group involved in the technical work, and area directors will 223 be the first actors in other cases. The first step will usually be 224 the working group chairs or area director to gather the facts and 225 discuss the matter with the IETF participants involved. 227 Working group chairs are already empowered to take action against 228 working group participants who flout the IPR rules and so disrupt 229 the smooth running of the IETF or a specific working group, just as 230 they can take such action in the face of other disruptions. 232 The working group chairs have the responsibility to select the 233 appropriate actions since they are closest to the details of the 234 issue. Where there is no working group involved or where making the 235 decision or applying the sanctions is uncomfortable or difficult for 236 the working group chairs, the responsible AD is available to guide or 237 direct the action if necessary. 239 4. Available Sanctions 241 This section lists some of the sanctions available to handle the 242 case of an individual who violates the IETF's IPR policies. It is 243 not intended to be an exhaustive list, nor is it suggested that only 244 one sanction be applied in any case. Furthermore, it is not suggested 245 here that every case of IPR policy infringement is the same or that 246 the severest sanctions may be applied in each case. 248 In many cases, it may be appropriate to notify a wider IETF community 249 of the violation and sanctions so that patterns of behavior can be 250 spotted and handled. 252 The sanctions are listed in approximate order of severity, but the 253 ordering should not be taken as definitive or as driving different 254 decisions in different cases. Section 5 provides some notes on 255 fairness, while Section 6 gives some guidance on selecting an 256 appropriate sanction in any specific case. 258 a. A private discussion between the working group chair or area 259 director and the individual to understand what went wrong and 260 how it can be prevented in the future. 262 b. A formal, but private, warning that the individuals must improve 263 their behavior or risk one of the other sanctions. 265 c. A formal warning on an IETF mailing list that the individuals 266 must improve their behavior or risk one of the other sanctions. 268 d. Announcement to the working group of failure by the individuals 269 ("name and shame"). 271 e. On-going refusal to accept the individuals as editors of any new 272 working group documents. The appointment of editors of working 273 group documents is entirely at the discretion of the working 274 group chairs acting for the working group as explained in 275 [RFC2418]. 277 f. Removal of the individuals as working group document editors on 278 specific documents or across the whole working group. 280 g. Re-positioning of the individuals' attribution in a document to 281 the "Acknowledgements" section with or without a note explaining 282 why they are listed there and not in the "Authors' Addresses" 283 section (viz. the IPR policy violation). This action can also be 284 recorded by the area director in the datatracker entries for the 285 documents concerned. 287 h. Deprecation or rejection of the individual document (whether it 288 be an RFC or Internet-Draft) or cessation of work on the affected 289 technology. 291 i. Application of a temporary suspension of indiviuals' posting 292 rights to a specific mailing list according to the guidelines 293 expressed in [RFC2418] and updated by [RFC3934]. Such bans are 294 applied to specific individuals and to individual working group 295 mailing lists at the discretion of the working group chairs for a 296 period of no more than 30 days. 298 j. The removal of individuals' posting privileges using a Posting 299 Rights Action (PR Action) as per [RFC3683]. This is a more 300 drastic measure that can be applied when other sanctions are 301 considered insufficient or to have been ineffective. When a PR 302 action is in place, the subjects have their posting rights to a 303 particular IETF mailing list removed for a period of a year 304 (unless the action is revoked or extended), and maintainers of any 305 IETF mailing list may, at their discretion and without further 306 recourse to explanation or discussion, also remove posting rights. 308 PR actions are introduced by an area director and are considered 309 by the IETF community and the IESG in order to determine IETF 310 consensus. 312 Note that individuals who have supplied text that is included in an 313 IETF document (RFC or Internet-Draft) have a right to be recognized 314 for their contribution. This means that authors names cannot be 315 entirely removed from a document in the event that they violate the 316 IETF's IPR policy unless the text they contributed is also completely 317 removed. But the individual's name can be removed from the front 318 page and even moved from the "Authors' Addresses" section so long as 319 proper acknowledgement of the contribution is given in the 320 "Acknowledgements" section. 322 4.1. An Additional Note on the Applicability of PR Actions 324 The applicability of PR actions in the event of IPR policy possibly 325 needs some explanation. According to [RFC3683], a PR action may be 326 considered as a practice for use by the IETF in the case that "a 327 participant has engaged in a denial-of-service attack to disrupt the 328 consensus-driven process." 330 [RFC3683] further cites [RFC2418] and [RFC3005] for guidelines for 331 dealing with abusive behavior. [RFC2418] is updated by [RFC3934] in 332 this matter. 334 In some cases, ignoring or flouting the IETF's IPR policy may be 335 considered as disruptive to the smooth operation of a working group 336 or of the whole IETF such that the offender might be deemed to be a 337 disruptive individual under the terms of [RFC2418], [RFC3934] and 338 [RFC3683], and so is liable to be the subject of a sanction that 339 restricts their rights to post to IETF mailing lists as described in 340 bullets h and i of Section 4 of this document. 342 5. A Note on Fairness and Appealing Decisions 344 As with all decisions made within the IETF, any person who feels that 345 they have been subject to unfair treatment or who considers that a 346 decision has been made incorrectly may appeal the decision. The 347 IETF's appeals procedures are described in Section 6.5 of [RFC2026] 348 and reinforced in the IESG statement at [URLIESG2026]. Any sanctions 349 described above may be appealed using these procedures. 351 6. Guidance on Selecting and Applying Sanctions 353 Whoever is applying sanctions for breaching the IETF's IPR policy 354 will want to be sure that the chosen sanction matches the severity of 355 the offence and considers all circumstances. The judgment needs to be 356 applied equitably should similar situations arise in the future. 358 If in any doubt, the person selecting and applying the sanctions 359 should seek the opinion of the relevant part of the IETF community 360 or the community as a whole. Furthermore, the person should not 361 hesitate to seek the advice of their colleagues (co-chairs, area 362 directors, or the whole IESG). 364 This is a judgment call based on all circumstances of each specific 365 case. Some notes on guidance are supplied in Appendix A. 367 7. Security Considerations 369 While nothing in this document directly affects the operational 370 security of the Internet, failing to follow the IETF's IPR policies 371 can be disruptive to the IETF's standards development processes and 372 so may be regarded as an attack on the correct operation of the IETF. 373 Furthermore, a late IPR disclosure (or a complete failure to 374 disclose), could represent an attack on the use of deployed and 375 operational equipment in the Internet. 377 8. IANA Considerations 379 This document makes no requests for IANA action. 380 [RFC Editor : You may remove this section before publication.] 382 9. Acknowledgments 384 Thanks to Lou Berger, Ross Callon, Stewart Bryant, Jari Arkko, and 385 Peter Saint-Andre for comments on an early version of this document. 387 Thanks to Subramanian Moonesamy and Tom Petch for their comments on 388 the work. Thanks to Dan Wing, Tony Li, and Steve Bellovin for 389 discussions. Thanks to Stephen Farrell for providing a thorough 390 review as document shepherd. 392 Additional thanks for textual improvements around IETF last call go 393 to Randy Bush, Brian Carpenter, Jorge Contreras, Russ Housley, 394 Barry Liebe, and Murray S. Kucherawy. 396 10. Authors' Addresses 398 Adrian Farrel 399 Juniper Networks 400 adrian@olddog.co.uk 402 Pete Resnick 403 Qualcomm 404 presnick@qualcomm.com 406 11. References 408 11.1. Normative References 410 [BCP79] S. Bradner, "Intellectual Property Rights in IETF 411 Technology", BCP 79, RFC 3979, March 2005. 413 [RFC2026] S. Bradner, "The Internet Standards Process - Revision 3", 414 BCP 9, RFC 2026, October 1996. 416 [RFC2418] S. Bradner, "IETF Working Group Guidelines and 417 Procedures", BCP 25, RFC 2418, September 1998. 419 [RFC3683] M. Rose, "A Practice for Revoking Posting Rights to IETF 420 Mailing Lists", BCP 83, RFC 3683, March 2004. 422 [RFC3934] M. Wasserman, "Updates to RFC 2418 Regarding the 423 Management of IETF Mailing Lists", BCP 94, RFC 3934, 424 October 2004. 426 11.2. Informative References 428 [RFC3005] S. Harris, "IETF Discussion List Charter", BCP 45, 429 RFC 3005, November 2000. 431 [Promote] Polk, T. and Saint-Andre, P., "Promoting Compliance with 432 Intellectual Property Rights (IPR) Disclosure Rules", 433 draft-polk-ipr-disclosure, work in progress. 435 [URLDisclose] http://www.ietf.org/ipr/file-disclosure 437 [URLIESG2026] http://www.ietf.org/iesg/statement/appeal.html 439 [URLIESGIPR] 440 http://trac.tools.ietf.org/group/iesg/trac/wiki/IntellectualProperty 442 [URLIPR] http://www.ietf.org/ipr/policy.html 444 [URLNoteWell] http://www.ietf.org/about/note-well.html 446 Appendix A. Guidance on Selecting and Applying Sanctions 448 As discussed in Section 6, the selection of sanctions needs to be a 449 carefully made judgment call considering all relevant circumstances 450 and events. This Appendix provides a list of things that might form 451 part of that judgment. 453 This list of considerations is for guidance and is not prescriptive 454 or exhaustive, nor does it imply any weighting of the considerations. 456 - How long has the participant been active in the IETF? 458 - Was there some exceptional circumstance? 460 - Are there special circumstances that imply that the individual 461 would not have seen or understood the pointers to and content of 462 [BCP79]? 464 - How late was the disclosure? Is the document already a working 465 group document? How many revisions have been published? How much 466 time has elapsed? Have last calls been held? Has the work been 467 published as an RFC? 469 - Was the individual a minor contributor to the IETF work, or are 470 they clearly a major contributor? 472 - Is there a reason for the individual forgetting the existence of 473 the IPR (for example, it was filed many years previous to the work 474 in the IETF)? 476 - Was the individual told by their company that disclosure was 477 imminent, but then something different happened? 479 - How speedy and humble was the individual's apology? 481 - How disruptive to the IETF work are the disclosure and the 482 associated license terms? A factor in this will be whether the 483 IETF community sees the need to re-work the document or not. 485 - Does the large number of patents that the individual has invented 486 provide any level of excuse for failing to notice that one of 487 their patents covered the IETF work?