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Subject: Minutes Draft Face to Face, August 9, 2003
Posting on behalf of Dave. cheers, Jason -------------------------------- Subject: Minutes Draft Face to Face, August 9, 2003 Folks, Here are the draft minutes of the face to face meeting. They are a bit rough in part because there seems to be a lot more out-of-band communication in a face top face than in the conference calls. (They may also be rough because I was so distracted by actually meeting so many of you.) In any case, please pass any corrections and/or comments my way. Thanks, Dave Marvit Special Projects Consultant Fujitsu Labs of America email@example.com ---- Draft Minutes (Version 1) OASIS LegalXML eContracts Technical Committee August 9, 2003 Face to Face Summary: - Discussion of IP issues as related to participation in and observation of the TC - Status report on the resources page, and the decision to open all of the content to the public as a default. - Discussion of IP issues related to use of contracts for TC purposes - Jason presents an Enterprise Contract management scenario. - Discussion of clause model – options and some implications - Dave presents Automated Negotiation scenario and technology demo. 12:40 Brought into session Present: Dr. Leff Dave Marvit Jim Keane Jason Harrop Dan Greenwood John Trudenick (sp?) Jane Winn Dave Weitzel (sp?) Rolly Chambers John Messing Jamie Clark At 12:40 the meeting was brought to order. It was noted that there were some people present in the capacity of observers. Their presence formally appreciated. This did present an opportunity to clarify some issues associated with IP. Dan invited Jamie to provide a brief description of some of the issues associated with IP and OASIS, especially in the immediate context of this meeting. Jamie’s comments are summarized as follows: 1. The ABA has an IP clause. It is assumed that the ABA will own and use any IP disclosed ‘benignly’. 2. OASIS has an IPR policy. People are expected to declare their claims. 3. The legalXML TCs have a special condition. They can say ‘we have decided not to include in our work product anything that is of a proprietary nature’. Dr. Leff: Moves to approve all prior minutes. DanG. Seconds Vote -- Unanimously in favor with 1 abstention. DG: Dr. Leff, can you update us on the resources page? Dr. Leff. We have been using the Kavi page. I have our minutes and agendae for upcoming meetings. Jane: Where is it? Dr. Leff: They are locked to members only right now. We need to decide f they should be public. ‘www.oasis-open.org’ will get you there. www.oasis-open.org--> home page left side menu ‘legalXML-eContrcat’ DanG: Moves to make all info on the docs page to become public as a default. John Messing: Seconds All in favor – unanimous Dr Leff: Rolly has submitted a benchmark contract. I have also submitted one Rolly: I submitted a design/build contract that I found on the Findlaw site. This is one of about a half dozen contracts that are frequently used in the construction industry. What I have NOT put up, although I hope that the group will be aware of them, is any form of contract that is copywrited. These are commonly used but I didn’t put up there because of the copyright of the contracts. Looking at construction contracts generally, there are a number of aspects that would be useful to identify in the body of those agreements. As with any contract there are lots of obligations. Having a way to track and identify those obligations would be very useful. Many times these are conditional. If something happens then one party or another has a certain obligation. Finding a way to extract these conditions (I call them events) is useful. In addition, finding ways to extract the names of the parties, their qualifications, who the contact people are (in terms of notice) is also valuable. DG: I submitted (with Dr. Leff) is a class of contracts that you are likely to find when you click on a web site. Here is an area of practice where it is already electronic. We don’t have to convince people to put them in electronic form because they already are. The only issue is getting them to mark them up in a new way. Finally, as a matter of contract management at large companies it would be useful to have these ‘click through’ contracts represented electronically. People click on all kinds of things as part of their work process. They are entering into all kinds of agreements for the corporations. There is some logic to ignoring this, but in so far as people want to pay attention, it would make sense to capture this, load it onto a server, parse it, and decide if someone is in a position to make the commitments that the contract is likely to impose. Jane: The acceptable use policy could address this. There is an unstated premise that if they are given a computer and a suite of tools, the corp. believes that they have addressed it. DM: That may be their best argument, but they KNOW it’s not true. Everyone knows that people download and use a variety of software and services from the net. Even just reading the New York Times requires an agreement. Dr. Leff. The AUP does not protect the firm. It is well established that apparent authority is binding. DG: We are going to have an implementation guide, and advice about entering into these agreements. [At an institution where I worked] we didn’t have an agreement with Adobe, but we mandated that they had Acrobat. Jamie: I’d like to suggest that R&D orgs and academic institutions represent one end of the spectrum. Many corps have a different perspective. They are very careful to know what people are clicking on. Also, when you talk about the Adobe license it represents a class of phenomena. There is probably a class of licenses that are sufficiently benign that you don’t really care. Jane: Many multinationals hated UCITA for this reason. Dave: This is analogous to the issue of downloading executables from some years ago. People needed to be educated that downloading (and running) executable files had risks. The same education needs to take place in the world of contracts now. Jamie: Yes. They are legal executables. John Messing: I met a guy from Google interested in electronic contrcats, and someone from MISMO. These folks might be interesting contacts for us. Rolly: If they have benchmark contracts that’d be great. Jamie: You need to know that it is reusable. Even if you do you may anonymize it to make people happier. DG: I also want to submit the OASIS membership contracts. They are electronic, have good IPR. The other is Tom ?’s Web technical development contracts. They have a good model contract. Jamie: I’ll confirm by email, but I’m pretty sure that you can use and do surgery on the OASIS contract. The ABA guys might be more difficult to deal with. Jim: The IP guy Vince is pretty reasonable. I’ve published with them and they have been very reasonable. Jane: The collection of ad hoc examples of contracts seems not to be adequate. There are more obvious ways of collecting contracts. You can go to a law library and look. Has that work been done, and if so, where is it. DG: Yes, it has been done. It is difficult to be all things to all people because the contracts are so varied. So, in an effort for speed… Jason’s clause model seems to fit, and we have been spot checking. We have, in an effort to support vocabulary and semantics, we have gotten together experts and were hoping to use the intuitive and expert sense of these people. Then we are hoping that they will be able to vet these ideas. I don’t know that you could ever think your way to the end product. Our though was that you could try something... something where people are ready to adopt. Then, through interaction with actual users we can zero in on an appropriate solution. We couldn’t see the pattern in advance. Dr. Leff: There are some things that are missing. Sample PO, lease order, bond debenture. One source may be simply going to court. If a contract has gone to court it is part of the public record. Class action agreements (like credit card agreements) are also public. Jane: SEC filings Jamie: Findlaw had a practice of collecting these Jason: By way of very basic background, there is a whole heap of things in a contact that can be marked up. The decision as to what should be marked up comes down to what use it might be. There is structural stuff that allows people to extract info and there are also heaps of non structural stuff, commencement dates, renewal dates all the way to things that are controversial – that may have significance by being marked up. So we had people submit contracts that describe the kinds of uses. Another approach is managing the contract lifecycle. In a round-about way the benchmark contracts tie back because they shed light on a particular scenario (like a contract that has an interesting dispute resolution clause) or, on the structural side, a contract that has an interesting structure. I was going to suggest that when people submit a benchmark contract they should mention why it would be of interest to the committee. In some cases we merely need to look at the contract. A URL pointing to it is sufficient. This should help us avoid any rights issues. DG: I have a dream that, at the end of the day, we would go back to the benchmark contracts and try our draft spec against them. Then we need to decide if something is out of scope, or if our work will need to be modified. Jason: The effort in actually marking up a contract is much greater than looking at a contract and seeing if it is mark-up-able. John Messing: Can’t you look at a contract and just have it marked up automatically? For certain types of contracts… Jason: Yes, so it comes down to conversion. DM: Structurally, yes they can be marked up automatically, but not semantically. That is still much too difficult. (The group generally agrees on this point.) DG: It is possible that all we will achieve in this group will be the clause model, and that would still be a very significant advancement. When we are done with the clause model it should be easy to have it allow the overlay of other semantic systems. John Messing: You won’t know the value of the clause model until you have finished it. But then are you still within the charter? DG: Doing the clause model is within the scope of the charter. Trying to do more and failing is also within the scope of the charter. DM: There is still value is having a semantic representation. Just don’t expect to convert pre-existing contracts automatically. [Also generally agreed with…] --- Jason presents an Enterprise Contract management scenario. Jason: At one end of the spectrum is a telecom company that has a million cell phone contracts that are all identical except for a few fields (name, address, plan, renewal date, etc). At the other end are companies that have rich and varied contracts that threy are trying to manage. Today all of the contract management systems have their own formats. Getting info in and out is a proprietary matter (often involving retyping). The question becomes, what info do we need to capture in order to map onto the contract management systems. So we split things up into structural requirements, and non-structural requirements. Jane: What is the relationship between this and the UBL work? Jason: Party name is used in both. The UBL guys are working on the business process first. Nowhere in that do they go down to the level of the terms of the contract. One of the things we’d like to be able to do is search – for example “Show me all of the contracts under the law of China.” DG: At an earlier meeting in the cyberlaw committee we presented and got some feedback. The consensus on the ‘why capture this’ – they felt that the contract management phase was the most relevant – the biggest benefit now [of having an XML representation for contracts]. The management of changes are also important. Jason: You will have people tell you that we have contracts that live for 20 years, and the people who made it are long gone, as are the people who made the changes. If you can capture the changes and the reason the changes were made you can save your company a lot of money. [Digression into whether or not the information Jason is capturing would potentially be evidentiary.] [Some discussion about whether or not it is required that there be at least 2 parties to the contract, and that they be represented in the standard…] There are two things we might be trying to do with the info we capture. One is to do the same kinds of things we currently do (name, expiry, governing law etc..) I call that a current generation contract management system. It is also possible that you might parameterize the entire contract. Then you might be able to say to the system: if a party does X, what happens? There is that promise of having a complete model of the contract. John Messing: Is everything structural or non-structural? Dan G: Yes. Dave: I stay awake at night worrying about this. I guess that if we find a counter-example we can add a rule. You can always add a rule to deal with any counter-example. JimK: We are groping now, but there are those who argue that we may miss entire classes of things by thinking about it this way. Dan G: Yes. Part of our process is to vet our work publicly. Can we shift the schedule… do the clause model review first (before the scenarios).. [group agrees] Zoran: joins the meeting by phone DG: We are going to do a quick review of where we are with the structural model status… Jason: When you look at clauses there are a bunch of structures that you see. We need to be able to represent them. One structure is where you have a heading , and then text underneath.. [A great deal of work at the whiteboard transpires that is difficult to represent in the minutes.] Dr. Leff: The issue of 7.1 being dependant upon 7 is a type of constraint. We simply need a way of representing that constraint. Jim Keane: In reality lawyers will use all of those representations. It is a many to many relationship and you are trying to make it an either/or relationship. If you chose to use a recursive model what happens to lawyers who are non-recursive. Jason: Lawyers will never look at this [the underlying XML structure]. They will look at some WYSIWYG interface based upon the indentation and so on. John McClure joins (by Phone) J Messing: What is the responsibility of the drafter? I don’t want to be distracted by the system, worrying about structure. I want the ideas to flow directly into the document. Jane: This is a point on a spectrum. The point just past you is an oral contract. There is nothing in the law that says contracts need to be written down. We are addressing the contracts where we have agreed that there is a structure. You are saying it [providing structural information] is a distraction. Yes, that’s true. But if that’s a problem, use oral agreements. The point is that most of us have agreed to suffer with the distractions of form. Dave: Dealing with any form you have to deal with some distractions until they are internalized. Dan G: Dr. Leff, do you mind allowing Dave to present before you? We are running low on time and his demo could benefit from the live presentation. Dr. Leff: No problem. Dave M presents Fujitsu’s work on automated negotiation. (Discussion and technology demonstration) The key requirement it imposes on our specification is that contracts can be generated from parameterized data. The scenarios discussed, Jason’s enterprise contract management scenario for example, merely require that parameterized data can be extracted FROM the contract. Automated negotiation – at least as envisioned in Dave’s scenario – demands that paramaterized data can build the contract. Some discussion about automated negotiation… Meeting Adjourned.