Proposed draft for "OWF Final Specification Agreement"

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Eran Hammer-Lahav

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Jan 30, 2009, 4:32:51 PM1/30/09
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This is pretty exciting!

As previously reported, a few members of the OWF Legal Committee (and
some invited guests) met together for an informal and off-the-record
meeting late last year (12/01/08). The meeting report is available
online [1]. No decisions were made during the meeting and
participation was based on availability. The goal of the meeting was
to help kick start the committee work.

During the meeting we discussed two ideas for structuring the legal
work of the OWF:

1. Break the legal deliverables into three main components, each
usable alone or in combination:
a) a contributor agreement for joining a specification effort,
b) a license (or non-assert) for "Final Specifications", and
c) a governance policy dealing with getting from a) to b).

2. Attempt to structure the "Final Specification" agreement as a non-
assert with the protection of a fallback license promise. This was
suggested to address two concerns: the lack of sufficient case-law for
the enforcement of non-asserts, especially with regard to downstream
obligations (when patents are sold after agreement is made), and
allowing licensed works to move into standard bodies with a RAND
licensing requirement.

The group decided to try and formulate these ideas into a working
draft that can be used as the starting point for further discussions
within the Legal Committee. Since the group had no mandate to
negotiate, vote, or decide on anything, we decided to simply put
forward a draft that represents what we agreed on and what we did not
agree on.

The proposed draft is now available at:

http://groups.google.com/group/open-web-legal/web/owf-final-specification-agreement---proposed-draft

The 'proposed draft' designation means that this is not yet a
Committee Draft - a draft endorsed by the Legal Committee as a whole.
It it only a proposal put forward by a few members and guests of the
committee. We hope that with an open discussion of the draft by the
full committee, we can elevate the draft into a Committee Draft and
get it closer to a proposed agreement for the OWF board to vote on.

The draft has no author, but I would like to acknowledge the
involvement and contribution of the following individuals: DeWitt
Clinton, David Recordon, David Rudin, Larry Rosen, Stephan Wenger,
Gabe Wachob, Ben Lee, and myself. I would also like to express a
special gratitude to David Rudin for his outstanding effort in
transforming our collective ideas into a legal document.

Since explaining the intentions and meaning of this legal document is
a significant part of the debate about its suitability for the
objectives of the OWF, I will let the draft speak for itself. We
invite anyone interested to review the document and offer publically
or in private, feedback, suggestions, or concerns. The emails of all
committee members are listed on the group membership page.

There are still open questions left to discuss, even within the
smaller group of those involved in this effort. The issues at hand are
of significant importance and carry both legal and moral implications.

Open issues are clearly marked in the document by [[language]
[comments]] text in light green, blue, and pink. The blue text denotes
contested language, pink text denotes alternative language, and the
comments try to explain the main discussion points.

---

Call for action:

1. We invite the full Legal Committee to review and publically discuss
the draft, as well as any interested parties. The discussion on the
OWF Legal List [2] is open to anyone, and everything is open for
discussion, including the two ideas listed at the top of this message.

2. Please express your views and desired outcome with regard to the
open issues marked in the proposed draft. Select your preferred
language alternative or suggest new language.

3. Review the document and bring up new issues or language to mark as
problematic or insufficient.

4. Forward this message to anyone who might be interested or capable
of reviewing it and help improve the draft. I would like to hear from
other standard bodies, legal experts, open source advocates,
specification communities, foundations, etc.

This is a significant milestone!

Eran Hammer-Lahav
Chair, Legal Committee
Open Web Foundation


[1] http://groups.google.com/group/open-web-legal/msg/b550bc61a9b82937
[2] http://groups.google.com/group/open-web-legal

Eran Hammer-Lahav

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Jan 30, 2009, 4:49:43 PM1/30/09
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My top priority is to hear back from Ben Laurie, Geir Magnusson, Pelle
Braendgaard, and Simon Phipps who were unable to attend the F2F
meeting about the proposed draft. It would be great if each of you
could reply with your initial impression and if you feel the draft is
a good starting point for us as a committee. My goal is to publish a
committee draft as soon as possible, hopefully within two weeks.

EHL

Simon Phipps

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Jan 30, 2009, 5:12:02 PM1/30/09
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Hi Eran

I will take a more thoughtful look over the next two weeks, but one
instant thing I notice is that paragraph one uses the expression
"intellectual property". As I just noted on my blog[1], this is both
the wrong phrase to use for the temporary privileges involved and a
provocation to a large swathe of the open source community. As what's
meant is "copyright and patent rights", why not say that (or similar)
throughout?

S.

[1] http://blogs.sun.com/webmink/entry/intellectual_privilege

Eran Hammer-Lahav

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Jan 30, 2009, 5:20:10 PM1/30/09
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Stephan...@nokia.com

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Jan 30, 2009, 9:02:22 PM1/30/09
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Hi Simon,

I don’t specifically care what language we use in the draft, as long as this language does not make assumptions, or allows for interpretations, that may be used in attempts to change the political landscape surrounding IPR.  More specifically, I would be fine to a change as you propose, but I would object to the use of “Intellectual Privilege Rights” as a summary term for patent rights and copyrights.  

Warning: what’s written below is a bit off-topic, and should perhaps be posted as a comment to Simon’s blog entry.  However, being a conservative person who believes in quality journalism (which, some say, never applies to blogs :-), and having had rather bad experiences with blogs in the past, I do not plan to comment there.

That said, please allow me to mention just briefly my concerns with the rationale that appears to make you think that “property” is a bad word choice in the context of patents and copyrights.  (I’m not commenting on the political correctness arguments you make in your blog post---this is for those to comment on who consider themselves members of the open source community.)

First, your definition of the “social contract”.  From your blog post:
-- “The "social contract" behind them is "we'll grant you a temporary monopoly
-- on your work so you can profit from it; in return you'll turn it over to the commons
-- at the end of a reasonable period so our know-how and culture can grow."

This is not the historic intention of patent law, and, I believe, it is also not how things work in practice.  I believe, the “social contract” could be better expressed as “We’ll grant you a monopoly on the exploitation of your invention, and in return you describe your invention today, so to advance the arts, and not only after having exploited it for many years, after having it kept secret for all that time.”  Meaning, the return to society is immediate (in fact, even before the patent is granted due to application publication), and not only after the expiration of the patent.  Does it work this way?  Perhaps not in all cases.  I have some serious doubts around certain classes of patents.  But, especially in the standards world, I think that the existence of patent law has done a great favor to society in that inventive companies can come forward and present their inventions in standardization, and still be reasonably certain that they will get compensated for the R/D effort.  (You probably have heard this argument before, have you :-)

Now, with respect to the word choice “Privilege”.

“Property” is something one can commonly buy, lease, or throw away, and in most cases it looses its value over time until there is only a residual value left, which can be zero or even negative.

I have seen the word Privilege in many different contexts, but let me just point out two: driving privileges and voting privileges.  Neither can be sold (even if a certain ex-Governor allegedly has thought otherwise:-) or leased.  In most countries, one can throw the driving privilege away, but in some one cannot throw the voting privilege away (unless one commits a felony or something).  And, arguably, neither privilege looses value over time.  

A patent, briefly put, is the right to forbid someone else to practice your invention.  This right can be sold (assigned to someone else, which typically involves compensation of some form), it can be “leased out” (licensed), an owner can throw it away (by not enforcing it, not renewing it, or in some legislations by specifically revoking it).  Without doubt it also looses value over time---after its expiration, the value is very low.  Arguably, it gradually looses value over time as well, as the accumulated licensing opportunities go down over time.

The situation with copyright is more complex, especially in continental law, where one has to distinguish between the moral rights and the exploitation rights.  But looking only at the exploitation rights, the situation is very similar to patents (as any writer can tell you).  In the case of common law, I would argue that copyrights have very similar properties as patents, when it come to the property vs. privilege arguments I made above.

Given these arguments, I see very little rationale behind the interpretation you are offering.  

Best regards,
Stephan

Lawrence Rosen

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Jan 30, 2009, 9:21:06 PM1/30/09
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Hi Simon,

I am a fan of the term "intellectual property." Indeed, I purposely included
it in the title of my book because I wanted to provoke certain members (not
a "large swathe") of our community who refuse to recognize that very
valuable and well-understood legal phrase. (My editor strongly encouraged me
to do it also.) That swathe of community members will come to live with it.

Let's make a deal: Lawyers will learn to use the terminology of the
engineering profession, and vice versa.

/Larry

Lawrence Rosen
Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242 * cell: 707-478-8932 * fax: 707-485-1243
Skype: LawrenceRosen
Author of "Open Source Licensing: Software Freedom and
Intellectual Property Law" (Prentice Hall 2004)

Simon Phipps

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Jan 30, 2009, 10:30:01 PM1/30/09
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Stephen, Larry: We'll have to agree to differ on this since I
disagree with you both, and this is not the venue for the argument
(which we know is unlikely to be resolved since its roots are
essentially ideological).

But as your evident passion indicates, this choice of language is
relevant - that was the point of my intervention, quod erat
demonstrandum. Restricting ourselves to use of the terms in which we
are actually interested - copyright and patent - seems likely to be a
choice that will help us and other members of the open source
communities focus on the real issues and not on meta-arguments.

Thus my request to talk of "copyrights" and "patents" and "copyrights
and patents" instead of the use of the term "intellectual property"
stands.

S.

Stephan...@nokia.com

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Jan 30, 2009, 11:33:02 PM1/30/09
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As said: this is agreeable to me.  Let’s avoid using “IPR”, and use only “patent”, “copyright”, “trademark”, and trade secret”, whenever and wherever they are appropriate.
Stephan
P.s.: I have a feeling that the open source community greatly overestimates the importance of terminology in the legal field.  I’m not talking about PR.
P.p.s.: I find your remarks re “free” vs “open” software, and the rant on political correctness  in the blog entirely appropriate.  The world would be a scary place for people like me if those assorted communities wouldn’t waste entirely too much time battling each other, and wasting time in re-defining words :-)

Eran Hammer-Lahav

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Jan 31, 2009, 12:18:07 AM1/31/09
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I am fine with being specific in legal documents. But IRP is a useful term even if it is not well defined, and in the context of this work, it is valid in conversations.

 

EHL

Eran Hammer-Lahav

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Feb 4, 2009, 4:10:29 PM2/4/09
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All committee members are hereby requested to reply with their
comments and feedback to the proposed draft. I intend to call for a
vote next week to turn this into an official committee draft (which
means it will become the basis for the final license, but can still
change).

Specifically, please reply with comments on the open issues:

* Section 2.2 Attribution
* Section 3.1 Derivative work
* Section 3.1.2.1 Scope of defensive suspension
* Section 6.4 Optional claims

Please reply by 2/10.

EHL

Lawrence Rosen

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Feb 4, 2009, 6:54:35 PM2/4/09
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Eran, I'm not sure what you're asking for.

I've commented already to the committee in our meetings about certain
changes I've proposed. So have others. Those arguments haven't yet been
entered into the record. Is that what you want us to do?

Simon asked for a couple of weeks to review the draft and comment more
fully. Presumably others will want to review this draft carefully with their
attorneys and executives.

So what do you expect to vote on next week?

/Larry



> -----Original Message-----
> From: open-we...@googlegroups.com [mailto:open-web-
> le...@googlegroups.com] On Behalf Of Eran Hammer-Lahav
> Sent: Wednesday, February 04, 2009 1:10 PM
> To: Open Web Foundation Legal
> Subject: Re: Proposed draft for "OWF Final Specification Agreement"
>
>

Eran Hammer-Lahav

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Feb 4, 2009, 7:02:06 PM2/4/09
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Well, I’m asking you to go on the record as stating where you stand on each of these open issues. So far such feedback was done off list... Also, while you have been very forthcoming about your opinions, others have not and I am not clear where they stand. I don’t want us to vote on each item, just discuss how we should move forward to resolve the open differences.

I expect to vote that this draft that was created by a subset of the committee be adopted as a committee draft (that is, officially being considered). This is just a procedural step to allow those unable to join us to take part in this and not force it on them without having a say.

EHL

Ben Laurie

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Feb 13, 2009, 8:01:43 AM2/13/09
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Apologies for delay. Travel and illness.

So... first off, the whole thing reads weirdly to me, for example:

"I grant to you perpetual (for the duration of the applicable
copyright), worldwide, non-exclusive, no-charge, royalty-free,
irrevocable copyright license, "

should that not be "I grant you a perpetual..."?

Is "no-charge" a word?

3.1.1 - prefer the second option.
3.1.2.1 option 1
3.1.2.2 who is "you"? Whoever they are, they didn't sign, so how would
they be bound by this?

"Bound Entities" is defined but not used.

"Necessary Claims" does not seem to me to improve the situation in
existing agreements. In particular:

a) Optional parts of the spec are not covered

b) How is an open source developer supposed to figure out if there's
some alternative way to implement something?

c) It opens the door to specs that can only be _efficiently_
implemented by someone who has obtained licences (at great expense, no
doubt).

Brady Brim-DeForest

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Feb 13, 2009, 4:52:45 PM2/13/09
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Ben, in regard to:

"I grant to you perpetual (for the duration of the applicable
copyright), worldwide, non-exclusive, no-charge, royalty-free,
irrevocable copyright license, "

Copyright has a natural expiration, so you can't really grant a
perpetual copyright license.

Here are the copyright duration rules:
General Rule: Life of author + 70 years

Joint Works: Life of last surviving author + 70 years

Works For Hire, Anonymous & Pseudonymous Works: 95 years from
publication or 120 years from creation, whichever is shorter


--
Brady Brim-DeForest

www.brimdeforest.com (the blog)
www.tubefilter.tv (the company)

Follow me: twitter.com/bradybd

Stephan...@nokia.com

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Feb 13, 2009, 9:25:53 PM2/13/09
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Our small group actually discussed this very subject a bit before we went public.  “Perpetual” was, if I recall correctly, the initial proposal, and it is a word used not infrequently in this context.  “For the duration of the copyright” is another one, also commonly used.  The formulation we have now was taken from the creative commons license, if I recall correctly.  All three are functionally equivalent in the business environment we have, AFAIK.
This is truly a minor issue, not warranting the electrons on the wires.
Regards,
Stephan

Ben Laurie

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Feb 14, 2009, 8:33:58 AM2/14/09
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On Fri, Feb 13, 2009 at 9:52 PM, Brady Brim-DeForest <bra...@gmail.com> wrote:
>
> Ben, in regard to:
>
> "I grant to you perpetual (for the duration of the applicable
> copyright), worldwide, non-exclusive, no-charge, royalty-free,
> irrevocable copyright license, "
>
> Copyright has a natural expiration, so you can't really grant a
> perpetual copyright license.
>
> Here are the copyright duration rules:
> General Rule: Life of author + 70 years
>
> Joint Works: Life of last surviving author + 70 years
>
> Works For Hire, Anonymous & Pseudonymous Works: 95 years from
> publication or 120 years from creation, whichever is shorter

Apologies - I was not objecting to this at all, I was objecting to the grammar!
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