IETF IPR Sanctions: Sanctions Available for Application to Violators of IETF IPR Policy

Internet Engineering Task Force (IETF)                         A. Farrel
Request for Comments: 6701                              Juniper Networks
Category: Informational                                       P. Resnick
ISSN: 2070-1721                                                 Qualcomm
                                                             August 2012


  Sanctions Available for Application to Violators of IETF IPR Policy

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 document is not an Internet Standards Track specification; it is
   published for informational purposes.

   This document is a product of the Internet Engineering Task Force
   (IETF).  It represents the consensus of the IETF community.  It has
   received public review and has been approved for publication by the
   Internet Engineering Steering Group (IESG).  Not all documents
   approved by the IESG are a candidate for any level of Internet
   Standard; see Section 2 of RFC 5741.

   Information about the current status of this document, any
   errata, and how to provide feedback on it may be obtained at
   http://www.rfc-editor.org/info/rfc6701.

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
   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 RFC 3979 [BCP79] and are frequently brought to the
   attention of IETF participants.  This document summarizes 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 RFC 3979 [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 [BCP25] and [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
   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 [RFC6702].

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 RFC 3979 [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 RFC 3979 [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 RFC 3979
   [BCP79].  No precise definition of "timeliness" is given in RFC 3979
   [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 by anyone who has cause to
   believe that IPR exists.  Such disclosures must be accompanied by the
   reasons for the disclosures.

   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.

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.

   [RFC6702] 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.

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 with a
   short summary of the relevant facts and events to the appropriate
   IETF mailing list.  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.

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 the 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 RFC 2418
      [BCP25].

   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.

   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 [BCP25].  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 an 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 RFC 2418 [BCP25] and [RFC3005] for guidelines
   for dealing with abusive behavior.  RFC 2418 is updated by RFC 3934
   in this matter (see [BCP25]).

   In some cases, ignoring or flouting the IETF's IPR policy may be
   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 [BCP25] 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 offense 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.  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.

9.  References

9.1.  Normative References

   [BCP25]       Bradner, S., "IETF Working Group Guidelines and
                 Procedures", BCP 25, RFC 2418, September 1998.

                 Wasserman, M., "Updates to RFC 2418 Regarding the
                 Management of IETF Mailing Lists", BCP 25, RFC 3934,
                 October 2004.

   [BCP79]       Bradner, S., Ed., "Intellectual Property Rights in IETF
                 Technology", BCP 79, RFC 3979, March 2005.

                 Narten, T., "Clarification of the Third Party
                 Disclosure Procedure in RFC 3979", BCP 79, RFC 4879,
                 April 2007.

   [RFC2026]     Bradner, S., "The Internet Standards Process --
                 Revision 3", BCP 9, RFC 2026, October 1996.

   [RFC3683]     Rose, M., "A Practice for Revoking Posting Rights to
                 IETF Mailing Lists", BCP 83, RFC 3683, March 2004.

9.2.  Informative References

   [RFC3005]     Harris, S., "IETF Discussion List Charter", BCP 45, RFC
                 3005, November 2000.

   [RFC6702]     Polk, T. and P. Saint-Andre, "Promoting Compliance with
                 Intellectual Property Rights (IPR) Disclosure Rules",
                 RFC 6702, August 2012.

   [URLDisclose] IETF, "File an IPR Disclosure",
                 http://www.ietf.org/ipr/file-disclosure.

   [URLIESG2026] IETF, "On Appeals of IESG and Area Director Actions and
                 Decisions",
                 http://www.ietf.org/iesg/statement/appeal.html.

   [URLIESGIPR]  IETF Tools, "Intellectual Property",
                 http://trac.tools.ietf.org/group/iesg/trac/
                 wiki/IntellectualProperty.

   [URLIPR]      IETF, "Intellectual Property Rights (IPR) Policy",
                 http://www.ietf.org/ipr/policy.html.

   [URLNoteWell] IETF, "Note Well",
                 http://www.ietf.org/about/note-well.html.

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 that considers all relevant
   circumstances and events.  This Appendix provides a list of questions
   that might form part of that judgment.

   This list of considerations is for guidance and is not prescriptive
   or exhaustive, and it does not imply any weighting of the
   considerations.

   -  How long has the participant been active in the IETF?

   -  Is 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 is 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?

   -  Is the individual a minor contributor to the IETF work, or is the
      individual 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 or not
      the IETF community sees the need to re-work the document.

   -  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?

Authors' Addresses

   Adrian Farrel
   Juniper Networks
   EMail: adrian@olddog.co.uk

   Pete Resnick
   Qualcomm
   EMail: presnick@qualcomm.com