Network Working Group B. Carpenter Internet-Draft Univ. of Auckland Intended status: Informational October 28, 2007 Expires: April 30, 2008 Considering availability of free software when evaluating Draft Standards draft-carpenter-ipr-patent-frswds-00 Status of this Memo By submitting this Internet-Draft, each author represents that any applicable patent or other IPR claims of which he or she is aware have been or will be disclosed, and any of which he or she becomes aware will be disclosed, in accordance with Section 6 of BCP 79. Internet-Drafts are working documents of the Internet Engineering Task Force (IETF), its areas, and its working groups. Note that other groups may also distribute working documents as Internet- Drafts. Internet-Drafts are draft documents valid for a maximum of six months and may be updated, replaced, or obsoleted by other documents at any time. It is inappropriate to use Internet-Drafts as reference material or to cite them other than as "work in progress." The list of current Internet-Drafts can be accessed at http://www.ietf.org/ietf/1id-abstracts.txt. The list of Internet-Draft Shadow Directories can be accessed at http://www.ietf.org/shadow.html. This Internet-Draft will expire on April 30, 2008. Copyright Notice Copyright (C) The IETF Trust (2007). Abstract This draft responds to a request for input by the IPR WG Chair. It proposes that the IETF's criteria for evaluating Draft Standard specifications should include the availability of free software. Carpenter Expires April 30, 2008 [Page 1] Internet-Draft Free software at DS October 2007 Table of Contents 1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . 3 2. Changed environment . . . . . . . . . . . . . . . . . . . . . . 3 3. Possible change in IETF criteria . . . . . . . . . . . . . . . 4 4. Charter objective . . . . . . . . . . . . . . . . . . . . . . . 5 5. Security Considerations . . . . . . . . . . . . . . . . . . . . 5 6. IANA Considerations . . . . . . . . . . . . . . . . . . . . . . 5 7. Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . 5 8. References . . . . . . . . . . . . . . . . . . . . . . . . . . 6 8.1. Normative References . . . . . . . . . . . . . . . . . . . 6 8.2. Informative References . . . . . . . . . . . . . . . . . . 6 Author's Address . . . . . . . . . . . . . . . . . . . . . . . . . 6 Intellectual Property and Copyright Statements . . . . . . . . . . 7 Carpenter Expires April 30, 2008 [Page 2] Internet-Draft Free software at DS October 2007 1. Introduction The IPR working chair has requested input addressing: o What contributors think has changed since the last IPR WG evaluation of patent policy. o What changes in overall direction they think the WG should address. o What the charter for this activity should look like. This draft is a response to that request, specifically addressing the criteria for advancement of specifications from Proposed Standard to Draft Standard. 2. Changed environment In recent years, while patent law and the motivations of patent holders have not changed significantly, large sections of the software business have moved towards a free software model based on a variety of open source licenses. Furthermore, there are at least two camps in the IT industry, those who oppose the very existence of such software, and those who have embraced it in their way of developing commercial products and services. Patent holders therefore offer a wide variety of conditions when it comes to licensing patents alleged to be infringed by software implementing open standards. The available patent licenses vary widely, from essentially free of restriction at one end to traditional royalty-based conditions at the other. Even patent licenses intended to be friendly to open-source software often contain reciprocity clauses (to protect the patent-holder against unreasonable licensing conditions from other patent-holders), or a requirement for all implementors to register their use of the patent in some way. At the same time, open source licenses vary widely, from saying little or nothing about patents at one end to requiring open source distributors to warrant the absence of royalties at the other. This range of conditions, both for patent licenses and for open source licenses, makes it essentially impossible for the IETF to devise rules that satisfy all parties: o patent-holders who stick to a traditional, royalty-based approach to patents; o patent-holders who are friendly to open source software but need to defend themselves against others who aren't; Carpenter Expires April 30, 2008 [Page 3] Internet-Draft Free software at DS October 2007 o open source advocates whose basic quarrel is with the existence of patents affecting software in the first place. The importance of free software and of open source licenses was much less when the current IETF IPR regime was instituted by [RFC2026]. Amendments since then [RFC3979] have not changed anything in this respect. As a result, there is now a recurrent difficulty in IETF discussions of specifications where patent disclosures have been made and there is interest in open source implementations. 3. Possible change in IETF criteria When [RFC2026] was developed, a key insight was that the IETF should never put itself in the position of making judgements about the applicability of patents or about the reasonable and non- discriminatory nature of patent licenses. Any such judgements are left to the courts; if the IETF made such judgements it would expose itself (and its participants) to court action. Therefore, the IETF process only requires contributors to disclose relevant patents (and applications) reasonably and personally known to them, and requires the IETF to publish those disclosures. The IETF makes use of such disclosures in deciding whether to adopt a particular technology, but without passing judgement on them. However, there is one point where the IETF indirectly considers whether IPR conditions have had a practical or empirical effect. [RFC2026] says: 4.1.2 Draft Standard A specification from which at least two independent and interoperable implementations from different code bases have been developed, and for which sufficient successful operational experience has been obtained, may be elevated to the "Draft Standard" level. For the purposes of this section, "interoperable" means to be functionally equivalent or interchangeable components of the system or process in which they are used. If patented or otherwise controlled technology is required for implementation, the separate implementations must also have resulted from separate exercise of the licensing process. Elevation to Draft Standard is a major advance in status, indicating a strong belief that the specification is mature and will be useful. Thus, the IETF makes no judgement about patent claims or licenses; it judges by results. Carpenter Expires April 30, 2008 [Page 4] Internet-Draft Free software at DS October 2007 A straightforward and robust way to favor free (and presumably open source) implementations of IETF protocols is simply to rewrite the first sentence above as: A specification from which at least two independent and interoperable implementations from different code bases have been developed, of which at least one is available as free software, and for which sufficient successful operational experience has been obtained, may be elevated to the "Draft Standard" level. This leaves open the question of what exactly is "free" software, which merits further discussion [I-D.josefsson-free-standards-howto]. But apart from that, it is an extremely simple change to the IETF's empirical approach to advancement along the standards track, which will encourage the provision of interoperable free software, without damaging the IETF's proven methodology and without involving the IETF in legal interpretations of either patent licenses or open source licenses. 4. Charter objective A possible IPR WG charter objective to deal with this is: - A short document (BCP) updating RFC 2026 to add the requirement that the implementations evaluated for advancement of a specification to Draft Standard must include at least one free software implementation. An alternative objective would be a process experiment [RFC3933] to try this change for a while. 5. Security Considerations This document has no direct impact on the security of the Internet. 6. IANA Considerations This document requests no action by the IANA. 7. Acknowledgements The basic idea of this draft comes from an email sent by Sam Hartman. Carpenter Expires April 30, 2008 [Page 5] Internet-Draft Free software at DS October 2007 This document was produced using the xml2rfc tool [RFC2629]. 8. References 8.1. Normative References [RFC2026] Bradner, S., "The Internet Standards Process -- Revision 3", BCP 9, RFC 2026, October 1996. 8.2. Informative References [I-D.josefsson-free-standards-howto] Josefsson, S., "Guidelines for Free Standards in the IETF", draft-josefsson-free-standards-howto-01 (work in progress), October 2007. [RFC2629] Rose, M., "Writing I-Ds and RFCs using XML", RFC 2629, June 1999. [RFC3933] Klensin, J. and S. Dawkins, "A Model for IETF Process Experiments", BCP 93, RFC 3933, November 2004. [RFC3979] Bradner, S., "Intellectual Property Rights in IETF Technology", BCP 79, RFC 3979, March 2005. Author's Address Brian Carpenter Department of Computer Science University of Auckland PB 92019 Auckland, 1142 New Zealand Email: brian.e.carpenter@gmail.com Carpenter Expires April 30, 2008 [Page 6] Internet-Draft Free software at DS October 2007 Full Copyright Statement Copyright (C) The IETF Trust (2007). This document is subject to the rights, licenses and restrictions contained in BCP 78, and except as set forth therein, the authors retain all their rights. This document and the information contained herein are provided on an "AS IS" basis and THE CONTRIBUTOR, THE ORGANIZATION HE/SHE REPRESENTS OR IS SPONSORED BY (IF ANY), THE INTERNET SOCIETY, THE IETF TRUST AND THE INTERNET ENGINEERING TASK FORCE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY THAT THE USE OF THE INFORMATION HEREIN WILL NOT INFRINGE ANY RIGHTS OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Intellectual Property The IETF takes no position regarding the validity or scope of any Intellectual Property Rights or other rights that might be claimed to pertain to the implementation or use of the technology described in this document or the extent to which any license under such rights might or might not be available; nor does it represent that it has made any independent effort to identify any such rights. Information on the procedures with respect to rights in RFC documents can be found in BCP 78 and BCP 79. Copies of IPR disclosures made to the IETF Secretariat and any assurances of licenses to be made available, or the result of an attempt made to obtain a general license or permission for the use of such proprietary rights by implementers or users of this specification can be obtained from the IETF on-line IPR repository at http://www.ietf.org/ipr. The IETF invites any interested party to bring to its attention any copyrights, patents or patent applications, or other proprietary rights that may cover technology that may be required to implement this standard. Please address the information to the IETF at ietf-ipr@ietf.org. Acknowledgment Funding for the RFC Editor function is provided by the IETF Administrative Support Activity (IASA). Carpenter Expires April 30, 2008 [Page 7]