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Internet Engineering Task Force (IETF)                         A. FarrelRequest for Comments: 6701                              Juniper NetworksCategory: Informational                                       P. ResnickISSN: 2070-1721                                                 Qualcomm                                                             August 2012Sanctions Available for Application to Violators of IETF IPR PolicyAbstract   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; seeSection 2 of RFC 5741.   Information about the current status of this document, any   errata, and how to provide feedback on it may be obtained athttp://www.rfc-editor.org/info/rfc6701.Farrel & Resnick              Informational                     [Page 1]

RFC 6701       Sanctions for Violators of IETF IPR Policy    August 2012Copyright Notice   Copyright (c) 2012 IETF Trust and the persons identified as the   document authors.  All rights reserved.   This document is subject toBCP 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 inRFC 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 inRFC 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 sanctionsFarrel & Resnick              Informational                     [Page 2]

RFC 6701       Sanctions for Violators of IETF IPR Policy    August 2012   listed.  As explicitly called out inSection 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 toRFC 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 inRFC 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 withinRFC 3979   [BCP79].  No precise definition of "timeliness" is given inRFC 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.Farrel & Resnick              Informational                     [Page 3]

RFC 6701       Sanctions for Violators of IETF IPR Policy    August 2012   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.Farrel & Resnick              Informational                     [Page 4]

RFC 6701       Sanctions for Violators of IETF IPR Policy    August 2012   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 Sections5 and6.3.  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 theFarrel & Resnick              Informational                     [Page 5]

RFC 6701       Sanctions for Violators of IETF IPR Policy    August 2012   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, whileSection 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 inRFC 2418      [BCP25].Farrel & Resnick              Informational                     [Page 6]

RFC 6701       Sanctions for Violators of IETF IPR Policy    August 2012   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.Farrel & Resnick              Informational                     [Page 7]

RFC 6701       Sanctions for Violators of IETF IPR Policy    August 20124.1.  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 citesRFC 2418 [BCP25] and [RFC3005] for guidelines   for dealing with abusive behavior.RFC 2418 is updated byRFC 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   ofSection 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 inSection 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 inAppendix A.Farrel & Resnick              Informational                     [Page 8]

RFC 6701       Sanctions for Violators of IETF IPR Policy    August 20127.  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.  References9.1.  Normative References   [BCP25]       Bradner, S., "IETF Working Group Guidelines and                 Procedures",BCP 25,RFC 2418, September 1998.                 Wasserman, M., "Updates toRFC 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 inRFC 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.Farrel & Resnick              Informational                     [Page 9]

RFC 6701       Sanctions for Violators of IETF IPR Policy    August 20129.2.  Informative References   [RFC3005]     Harris, S., "IETF Discussion List Charter",BCP 45,RFC3005, 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.Farrel & Resnick              Informational                    [Page 10]

RFC 6701       Sanctions for Violators of IETF IPR Policy    August 2012Appendix A.  Guidance on Selecting and Applying Sanctions   As discussed inSection 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?Farrel & Resnick              Informational                    [Page 11]

RFC 6701       Sanctions for Violators of IETF IPR Policy    August 2012Authors' Addresses   Adrian Farrel   Juniper Networks   EMail: adrian@olddog.co.uk   Pete Resnick   Qualcomm   EMail: presnick@qualcomm.comFarrel & Resnick              Informational                    [Page 12]