Re: TODAY: Stop IETF Enactment of Patented Standard for TLS

[David Farber <dave () farber net>]

Begin forwarded message:

From: "Steven M. Bellovin" <smb () cs columbia edu>
Date: February 11, 2009 12:08:58 PM EST
To: dave () farber net
Subject: Re: [IP] TODAY: Stop IETF Enactment of Patented Standard for  
TLS

There is, in my opinion, a considerable amount of confusion here.  This
paragraph illustrates my point.

> If our voice is strong enough, the IETF will not approve this standard
> on any level unless the patent threat is removed entirely with a
> royalty-free license for all users.

For better or worse, the IETF has never accepted that "royalty-free" is
a precondition for standardizing something.  The full details are in
RFC 3979 (updated by RFC 4879); briefly, though, participants in a
discussion are obligated to disclose any IPR they have that bears on
the discussion; additionally, third parties who are aware of patents
that bear on some topic are encouraged to file third-party
disclosures.  The working group participants -- and the IETF community
-- make individual decisions on the likely validity and applicability
of the patents, and on the tradeoffs between the utility of the
encumbered technology versus the costs and hassles of dealing with
patent licenses.  (Note: I was an IESG member and co-chair of the IETF's
IPR working group during much of the time these RFCs were adopted.  The
basics of that policy antedate my tenure, and continue to this day.)

Given this, the statement "the IETF should not standardize
draft-chthulhu-shogoth-666.txt because the technology is patented" is a
NOP according to IETF policies on patented works.  The proper
formulation is "I feel that standardizing
draft-chthulhu-shogoth-666.txt is a bad idea because in this particular
case, the licensing terms are too onerous for the benefit gained",
perhaps with a suggestion that some other technology be adopted instead.
For the IESG to reject a standard based on statements like this:

> We depend on organizations like the Internet Engineering Task Force
> (IETF) and the Internet Engineering Steering Group (IESG) to evaluate
> new proposals for standards and make sure that they are not encumbered
> by patents or any other sort of restriction that would prevent free
> software users and programmers from participating in the world they
> define.

would be to go against the overwhelming consensus of the IETF when 3979
was adopted.  (I was at the microphone to run the in-meeting "hum" and
personally conducted the "e-hum" of the mailing list.  While a lot of
people in the free software movement were very unhappy with the outcome
-- and yes, with the IETF leadership, including me, for opposing a
royalty-free standard -- I've never heard anyone claim that the hums
were misrepresented or in any way conducted in contravention to
long-standing IETF procedure.

I don't know why this particular document has been singled out by the
FSF.  I suspect it's because of its long, tangled history of IPR
disclosures; see the IESG's statement (included in the FSF message) for
a brief summary of the issues.  But opposing just this document because
you don't like software patents in general is fruitless.  (It may also
be counterproductive, in that the flood of drive-by messages saying
"don't approve this because software patents are evil" has irritated a
lot of people.  I hope, though, that the IESG will not base its
decision on annoyance.)

The obvious thing for me to say next is "if you don't like the IETF's
patent policy, try to change it rather than targeting a relatively
minor draft".  From my perspective as a one-time insider -- I resigned
from the IESG and as IPR co-chair about 4 years ago, and have not
tracked the IETF particularly closely since then -- I doubt it would be
a fruitful course to pursue.  Quite simply, I don't think that the
opinions of the IETF community have changed much on this point in the
years since the current policies were adopted.  I suspect that a better
idea would be a two-fold effort: to get rid of bad patents, and to
propose unencumbered alternative technologies.  To be precise, look at
the goals of a particular encumbered draft and craft a new document
that does substantially the same thing but avoids the patent.  This
latter statement doesn't mean "post a single note to the mailing list
saying "use X instead of Y" -- it means write an Internet Draft, tell
the working group about it, present it (or arrange to have it
presented) at WG meetings, stay engaged on the mailing list -- and base
your arguments on something other than "patents are evil".



                --Steve Bellovin, http://www.cs.columbia.edu/~smb




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