Subject: [video-codec] Barry Leiba's Block on charter-ietf-netvc-00-00: (with BLOCK and COMMENT)

From: "Barry Leiba" <[email-masked]>
Date: Mon, 20 Apr 2015 15:27:42 -0700

Barry Leiba has entered the following ballot position for
charter-ietf-netvc-00-00: Block

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email addresses included in the To and CC lines. (Feel free to cut this
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The document, along with other ballot positions, can be found here:
http://datatracker.ietf.org/doc/charter-ietf-netvc/

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BLOCK:
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The IESG has discussed this issue on last week's informal call, and we
have asked the IAOC legal committee to comment.  We have some
response so far, and we're waiting for Jorge to weigh in.

> The WG will prefer algorithms or tools where there are verifiable
> reasons to believe they are available on an RF basis over algorithms
or
> tools where there is RF uncertainty or known active IPR claims with
> royalty liability potential. The codec specification will document why
> it believes that each part is likely to be RF, which will help
adoption
> of the codec. This can include references to old prior art and/or
patent
> research information.

We are pretty explicit, in general, that working groups do NOT
evaluate patents and other intellectual property, and there are good
reasons for that.  Some companies would have problems with their
employees participating in such discussions.  Discussions of that
nature can put people into positions where they become aware of
patents they otherwise would not, and that their employers would
prefer that they didn't.

I think that at the very least, we should loop the IAOC legal
committee and/or Jorge into this, and make sure they are/he is OK with
having anything about patent research information in a working group
charter.  I know that many companies do not allow their employees to
do patent searches and evaluations without explicit permission.

I worry that such a discussion will either make it impossible for some
people to participate, or cause some people's participation to
unintentionally violate their employers' policies.

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COMMENT:
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I certainly support this charter.  I have two concerns, one minor, one
not so minor.  The not-so-minor one is above, in the "discuss" box.

The minor one is here:

<<
5. A collection of test results, either from tests conducted by the
working group or made publicly available elsewhere, characterizing the
performance of the codec. This document shall be informational.

I'm really happy that the deliverables are, in general, specified in
terms of what will be delivered, and not how it will be laid out in
how many documents of what sort.  Thanks!

Related to that:
I strongly urge that we strike the last sentence in item 5.  Actually,
I prefer that we replace it with an explicit statement that the
collection might live in the working group wiki (or github, or
whatever), and might not be published as an RFC at all.  But I'd be
happy with just striking the reference to publishing a document.

---

From: Ted Hardie <[email-masked]>
Date: Mon, 20 Apr 2015 16:51:34 -0700

Hi Barry,

The charter says:

The WG will prefer algorithms or tools where there are verifiable reasons
to believe they are available on an RF basis over algorithms or tools where
there is RF uncertainty or known active IPR claims with royalty liability
potential. The codec specification will document why it believes that each
part is likely to be RF, which will help adoption of the codec. This can
include references to old prior art and/or patent research information.

​You seem to have two issues:  one being that some individuals may not be
able to participate because patent searches or demonstrations of prior art
may be required and these are forbidden to them; the other being that the
IETF as a body should not make declarations about the IPR status​ of a
piece of work.

Even if the working group were to have no formal analysis or declaration of
the IPR status of particular approaches in its output, the goal of this
work would be frustrated if it were forbidden from talking on its mailing
list about the participants' understandings of the IPR relevant to their or
others' contributions.  That might include the results of those
participants' patent searches or other experience.  Allowing that in the
discussion of what methods should be adopted is within our rules as I
understand them, as individual participants are making their own decisions
on what paths to pursue.   This is simply data they may choose to take into
account, or not, as they see fit. (Since this might occur in any mailing
list working toward a specific technology now, my impression is that
someone who wished their employees not to be so exposed would have to
direct them not to participate, full stop.)

I think that issue is not simply separable from the question of whether the
IETF could or should issue an RFC making IPR claims, but it should be
separated.  Jorge may very well advise the IESG that the IETF cannot or
should not draw conclusions on the IPR status of specific methods.  But
that should not mean, at least in my view, that IETF participants cannot
share their own views on those matters on one of our mailing lists.  Our
openness to participation does not require us to shield potential
participants from forbidden knowledge; they have to do that for themselves.

My two cents as an individual,

regards,

Ted

On Mon, Apr 20, 2015 at 3:27 PM, Barry Leiba <[email-masked]>
wrote:

> _______________________________________________
> video-codec mailing list
> [email-masked]
> https://www.ietf.org/mailman/listinfo/video-codec
>

---

From: Barry Leiba <[email-masked]>
Date: Mon, 20 Apr 2015 21:25:17 -0400

Hey, Ted.

> You seem to have two issues:  one being that some individuals may not be
> IETF as a body should not make declarations about the IPR status of a piece
> of work.

Yes.

> the IPR status of particular approaches in its output, the goal of this work
> would be frustrated if it were forbidden from talking on its mailing list
> about the participants' understandings of the IPR relevant to their or
> participants' patent searches or other experience.

Actually, I believe -- I'm willing to be corrected -- that we do *not*
talk about participants' evaluations of patent claims, and we shut
those discussions down if they happen.  I believe that we consider
those discussions out of scope for working groups, and that we expect
and advise each participant to make her own decision in that regard.

Barry

---

From: Alissa Cooper <[email-masked]>
Date: Mon, 20 Apr 2015 18:35:40 -0700

Hi Barry, all,

I’ve had a conversation with Jorge and Scott Bradner and have come up with the edits below as a result. Would these address your concerns?

OLD
The WG will prefer algorithms or tools where there are verifiable 
reasons to believe they are available on an RF basis over algorithms or 
tools where there is RF uncertainty or known active IPR claims with 
royalty liability potential. The codec specification will document why 
it believes that each part is likely to be RF, which will help adoption 
of the codec. This can include references to old prior art and/or patent 
research information.

NEW
In keeping with BCP 79, the WG will prefer algorithms or tools where there are verifiable reasons to believe they are available on an RF basis. In developing the codec specification, the WG may consider information concerning old prior art or the results of research indicating royalty-free availability of particular techniques.

Delete this sentence since WGs generally accept input from external parties all the time:
The WG will accept and consider in its decision process input received 
from external parties concerning IPR risk associated with proposed 
algorithms.

Everything else would remain the same. The above edits don’t change the kinds of things WG may want to do to help produce a codec that many parties can believe to be RF, but they stay closer to the existing BCP 79 language that we usually rely on.

Alissa

---

From: Barry Leiba <[email-masked]>
Date: Mon, 20 Apr 2015 22:52:39 -0400

> I've had a conversation with Jorge and Scott Bradner and have
> come up with the edits below as a result. Would these address
> your concerns?

They would, indeed.  Thanks!

Barry

---

From: "Timothy B. Terriberry" <[email-masked]>
Date: Mon, 20 Apr 2015 20:20:05 -0700

> Everything else would remain the same. The above edits don’t change the kinds of things WG may want to do to help produce a codec that many parties can believe to be RF, but they stay closer to the…

This new text also works for me.

>> I strongly urge that we strike the last sentence in item 5.  Actually,

I personally have no problem with that, either.

---

From: Ted Hardie <[email-masked]>
Date: Mon, 20 Apr 2015 20:30:47 -0700

On Mon, Apr 20, 2015 at 6:25 PM, Barry Leiba <[email-masked]>
wrote:

> those discussions down if they happen.

If an IPR claim is filed on an internet-draft, I think a working group
participant saying something like "I still plan to implement this, as I
see  $FOO and $BAR as demonstrating prior art." would be well within our
process.   Preventing them from saying that because some other participant
doesn't want to hear about $FOO or $BAR seems like it grants a patent
assertion way too much power.

Note that this does not in any way mean that other participants must come
to the same conclusion as the participant who mentions $FOO and $BAR.  As
you note, they must come to their own conclusions.  But I have certainly
heard multiple discussions of participants' evaluations of how specific
claims would or would not effect their choices, and I believe that these
are appropriate.

>   I believe that we consider
​I think we consider the working group making an assertion about the patent
rights inappropriate, but that it may come to consensus about likely
implementation and deployment based on its participants evaluation of all
the criteria for that (including​ the participants' knowledge of relevant
prior technologies).  And I think that's very different from saying "we
don't discuss prior art".

> Barry

​regards,

Ted​

---

From: Harald Alvestrand <[email-masked]>
Date: Tue, 21 Apr 2015 08:49:52 +0200

Den 21. april 2015 05:30, skrev Ted Hardie:
> On Mon, Apr 20, 2015 at 6:25 PM, Barry Leiba <[email-masked]
> <mailto:[email-masked]>> wrote:

> 
> ​I think we consider the working group making an assertion about the
> patent rights inappropriate, but that it may come to consensus about
> likely implementation and deployment based on its participants
> evaluation of all the criteria for that (including​ the participants'
> knowledge of relevant prior technologies).  And I think that's very
> different from saying "we don't discuss prior art".

Back in the days of Draft Standard, one criterion (RFC 2026 section
4.1.2) was this:

   If patented or otherwise controlled technology
   is required for implementation, the separate implementations must
   also have resulted from separate exercise of the licensing process.

After extensive discussion, I think that it was concluded that "I have
taken no license, I don't believe I have to, and I haven't been
challenged on it so far" constituded an exercise of the licensing
process for purposes of counting implementations.

---

From: Barry Leiba <[email-masked]>
Date: Tue, 21 Apr 2015 10:29:23 -0400

> participant saying something like "I still plan to implement this, as I see
> $FOO and $BAR as demonstrating prior art." would be well within our process.
> Preventing them from saying that because some other participant doesn't want
> to hear about $FOO or $BAR seems like it grants a patent assertion way too
> much power.
>
> Note that this does not in any way mean that other participants must come to
> the same conclusion as the participant who mentions $FOO and $BAR.  As you
> note, they must come to their own conclusions.  But I have certainly heard
> multiple discussions of participants' evaluations of how specific claims
> would or would not effect their choices, and I believe that these are
> appropriate.

I agree with what you say -- I had interpreted your comment to refer
to more involved and extensive discussion.  And I think that Alissa's
new text supports what you say above.

Barry

---

From: "Ben Campbell" <[email-masked]>
Date: Tue, 21 Apr 2015 09:47:04 -0500

On 20 Apr 2015, at 20:35, Alissa Cooper wrote:

> Hi Barry, all,
>
> I’ve had a conversation with Jorge and Scott Bradner and have come 
> up with the edits below as a result. Would these address your 
> concerns?
>
> OLD
> In keeping with BCP 79, the WG will prefer algorithms or tools where 
> there are verifiable reasons to believe they are available on an RF 
> basis. In developing the codec specification, the WG may consider 
> information concerning old prior art or the results of research 
> indicating royalty-free availability of particular techniques.
>
> Everything else would remain the same. The above edits don’t change 
> the kinds of things WG may want to do to help produce a codec that 
> many parties can believe to be RF, but they stay closer to the 
> existing BCP 79 language that we usually rely on.
>
> Alissa

I like Alissa's proposed change.

Ben.

---

From: Adam Roach <[email-masked]>
Date: Tue, 21 Apr 2015 10:09:42 -0500

On 4/21/15 09:47, Ben Campbell wrote:
>> I’ve had a conversation with Jorge and Scott Bradner and have come up 
>> with the edits below as a result. Would these address your concerns?
>>
>> OLD

I do also.

/a

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From: Alissa Cooper <[email-masked]>
Date: Tue, 21 Apr 2015 22:00:22 -0700

I made these changes, which now appear in charter-ietf-netvc-00-01.
Alissa

---

From: "Timothy B. Terriberry" <[email-masked]>
Date: Wed, 22 Apr 2015 08:31:42 -0700

> I made these changes, which now appear in charter-ietf-netvc-00-01.

Thanks for taking care of this.