Re: [rights-requirements] Comments on Requirements version 16

[Cory Doctorow <cory@eff.org>]

Dmitry, I respectfully disagree with you.

> Obviously, there is no agreement on the rules as related to the IP 
> policy of the RLTC. There are certainly plenty of standards bodies 
> with very different IP policies and we are all free to join the ones 
> we like best. The OASIS has its policy and the RLTC is in compliance 
> with it. I don't want to rehash the issue, please see 12/3/02 e-mail 
> from Karl Best. We can agree with the policy or we can agree to 
> disagree and move on. But to keep going back and bringing up the same 
> points over and over again is simply not constructive.

"If you don't like it, then fo away and join someone else's 
standards-setting process" isn't any better an answer than, "If you 
won't countenance dissent from stakeholders, go away and do this as an 
inter-company negotiation, not a open standards-setting process" would 
be. If you stop implying the former, I promise not to say the latter.

>  However, there is an argument that fair use is a defense against 
> copyright infringement rather than an intrinsic source of user rights, 
> and there is no intrinsic right to duplicate copyrighted material. I 
> would argue that the latter interpretation is more in line with the 
> recent findings of the US courts, but the main point here is that 
> there is at least a difference of opinions and some claims that are 
> being put forward as self-obvious and grounded in the Constitution are 
> not necessarily so. I highly doubt that Anne's employer would agree 
> that it's a fair use for me to purchase a license to run Sun's softwar

Dmitry, this is a gross misstatement of how copyright works and 
suggests that this committee is still a long way off from coming up 
with anything that reflects how copyright actually works. It's pretty 
disheartening to see outrageous statements like this:

> It is the purpose of the copyright law to protect the rights of the 
> relatively small group (compared to the user population) of copyright 
> owners.

which completely mis-state the factual, settled nature of copyright 
after so much discussion and debate.


>  Or imposing some processes which make fair use less convenient but 
> curtails widespread copyright abuse be the right balance? Should I be 
> able to get a discount if I am willing to forego the right to make 
> copies (the economists generally agree that in most cases price 
> distrimination will benefit consumers)?

IOW, should this standards body reverse the settled practice of 
copyright law by precluding models of actual copyright because serving 
those models is hard or incovnvenient?

My answer is a resounding no.

I assume that by "most economists" you mean "most economists who agree 
with me."

> I am not trying to answer these questions and find this balance here. 
> As a matter of fact, with all due respect to the fine legal and 
> technical minds in RLTC, realistically it is well beyond RLTC's 
> mission and authority (of course each of us "knows" the right 
> balance). It seems like the group was making progress back in October 
> when we were focusing on refining and enhancing expressiveness of the 
> language to make sure that all the rights, including fair use, can be 
> expressed (see, for example, discussions between Brian, Deidre and 
> Aaron). But alas! here we are again, arguing the scope and the policy, 
> after many months we can't get out a version of the requirements 
> document and there is no visible progress. If after all these months 
> we can't agree on some basic framework - why are we continuing this 
> charade?
>
> Respectfully,
>
> Dmitry Radbel, VP Advanced Technology
> Universal Music Group
> 2220 Colorado Ave.,  Santa Monica, CA 90404
> Office 310-865-7801   Mobile 310-722-9027
> e-mail: dmitry.radbel@umusic.com
>
>
> -----Original Message-----
> From: Gandee, Brad [mailto:Brad.Gandee@CONTENTGUARD.COM]
> Sent: Monday, January 27, 2003 9:00 AM
> To: Anne.Anderson@Sun.com; RLTC;
> rights-requirements@lists.oasis-open.org
> Cc: Patrick. Gannon (E-mail); Karl F. Best (E-mail);
> simon.nicholson@oasis-open.org
> Subject: RE: [rights-requirements] Comments on Requirements version 16
>
>
> All,
>
> I would like to address some of the comments that Anne Anderson 
> submitted on January 15th.
>
> Before making specific comments I must say that I am disappointed and 
> discouraged by the fact that she has raised many points that have 
> already been discussed at length and dispositioned by the RLTC. When 
> her comments are taken as a whole they raise fundamental questions 
> about Anne and Sun's motivation in participating in the RLTC and the 
> likelihood of the RLTC being able to ever function effectively.
>
> Anne said: "As a key Internet standard in various architectural 
> models, the output of the RLTC MUST be comprehensive enough to ensure 
> that the various applications of the standard will not interfere with 
> or subvert legal rights such as "fair use rights".
>
> BG:  It is not the job of the rights language standard to "ensure that 
> the various applications of the standard will not interfere with or 
> subvert legal rights such as "fair use rights"".  It is the job of the 
> subject applications to not interfere or subvert any legal rights due 
> to a user of that application.  Is it the job of the IETF to create 
> standards for Internet communication that block Hate Speech, or block 
> the transfer of proprietary information, or block communication by 
> terrorists conspiring to kill?  Is it the job of the JAVA authors to 
> prevent the use of JAVA in presenting or displaying pornography to 
> children?
>
> Equally important has Sun made these same protestations in other 
> standards efforts.  For example, at the Open Mobile Alliance, where 
> Sun is a Sponsor Member, the highest level of membership, concerning 
> the OMA Digital Rights Expression Language?
>
> For that matter has Sun made these same protestations to the Access 
> Control TC about the same potential abusive use of the XACML spec to 
> subvert Fair Use rights?  XACML has been presented recently at a 
> meeting of PRISM as usable in DRM, and yet I see no built-in 
> architectural features to make sure that any user of XACML will be 
> prevented from 'interfering with or subverting legal rights such as 
> fair use'.  And if it does not provide those features, did Sun vote NO 
> in the current vote on its approval as an OASIS specification?
>
> If the answer is NO to any of these questions I have to wonder why 
> these protestations are being made only to the RLTC?  It would appear 
> that Sun is selectively raising these issues to slow or block the work 
> of the RLTC.
>
> Anne said: 3. The proposed language can probably not be implemented, 
> at least in its targeted domains, in a way that does not infringe upon 
> intellectual property claims.
>
> BG:  Is this the opinion of Sun to the RLTC (and OASIS members) or 
> just a convenient characterization for sake of your opposition to the 
> work of the RLTC?
>
>
> Anne said in 3:  The owners of that intellectual property have offered 
> only RAND terms for licenses to that intellectual property.
>
> Approval of a standard that requires payment of license fees for IP 
> effectively grants a monopoly to the owner of that IP, while providing 
> no protection to the community against mis-use of that monopoly.
>
> "RAND" has no legal meaning.  It offers no protection to the community 
> against the imposition of prohibitive license fees.  RAND has been 
> used in the past to extract increasingly more onerous fees as the 
> associated standard has become more widely adopted.
>
> BG: Again this argument is premised on a continued 
> mischaracterization.  The specification will be freely available 
> without license fees.  Implementers of the specification will only 
> require license coverage for the ContentGuard patents if the systems 
> they build infringe.
>
> Anne's statement also does not make much sense when she discusses the 
> "increasingly more onerous fees" exacted "as the associated standard 
> has become more widely adopted". From a business and historical 
> perspective this argument does not hold water. If fees were truly 
> excessive then the standard would not become more widely adopted.  
> Something that is constantly overlooked in this oft repeated argument 
> is that standards are NOT mandatory.  Companies CHOOSE to implement 
> standards because they are of use in their businesses.  No one is 
> obligated, and that includes Sun, to implement this standard.  
> Likewise if the DRM providers working with content owners implementing 
> this standard do not respect the "rights" of the consumers, they will 
> probably find very low uptake for their service and products.
>
> The whole point of having a standard rights expression language is to 
> describe the uses (both granted and "Fair") one would like to enable 
> for the Users.  I and others have stated since the beginning of the 
> RLTC that we expect and encourage users, organizations like the 
> Samuelson Law Clinic and EFF, implementers and others to construct 
> licenses using the RLTC specification combined with extensions to that 
> specification to describe Fair Use rights.  Since there is not a 
> single global definition for many of the rights Anne refers to, there 
> will be many different versions of these for the many different 
> situations.  The creators of these extensions and licenses will 
> promote their use.  A good example would be the TRUSTe Privacy Seal 
> Program https://www.truste.org/ivalidate.php?url=www.yahoo.com or the 
> classic Good Housekeeping Seal of Approval.
>
>
>
> Anne said:  The argument has been made that the developers of a 
> standard can never know who holds IP claims that might be asserted.  
> That is true.  But where clear IP claims *are* known, and where RF 
> licenses to that IP are not offered, any standard that a large 
> proportion of the Internet community will be forced to implement and 
> utilize must be designed around those known IP claims.  If it is not 
> possible to design the standard around such known IP claims, then the 
> standard should not be approved.
>
> BG:  No one is "forced to implement" this standard.  Do you expect 
> that people will be "forced" to implement SAML or XACML? I have seen 
> no evidence that IBM provided terms and guidance on how to work around 
> their patents and has the Access Control TC incorporated those 
> work-arounds?  Additionally if the XACML TC has in fact built in those 
> work-arounds then the IP claims would no longer apply.  If that is not 
> the case, again I am assuming that Sun will be voting NO on the 
> approval of XACML as an OASIS specification.
>
> Based on Anne's characterization of any spec with IP claims 
> accompanied by an offer of RAND terms as unacceptable and "should not 
> be approved" I would also expect that Sun would be voting NO on ANY 
> specification with IP claims and an offer of RAND terms that is 
> presented to the general membership. I assume this will be the case 
> with XACML. Has Sun made such a public statement or does this only 
> apply to the RLTC?
>
> But more importantly I am most troubled by the following question: Why 
> did Sun join the RLTC?  ContentGuard made an IP declaration at the 
> very first meeting when we submitted XrML and it was accepted by the 
> RLTC before Anne or anyone else from Sun joined the TC.  Was the 
> purpose to block ANY progress or prevent an affirmative vote in the 
> RLTC?
>
> We have covered the points raised here many times already, yet Anne 
> continues to object. Anne raises these points here but not in other 
> places where I at least believe they apply equally.  Taken in their 
> entirety, these positions by Sun make it abundantly clear that Sun 
> fundamentally disagrees with the Charter of this TC. Furthermore that 
> we are far apart in our thinking and that the RLTC is very unlikely to 
> reach consensus. I can only conclude that the RLTC is not going to 
> produce a specification or a standard, and is wasting the valuable 
> time of a lot of good technical people. Furthermore based on all of 
> Anne's stated objections I would think that it is appropriate for Sun 
> to reconsider their membership in the RLTC.
>
>
> Brad Gandee
>
>
>
> -----Original Message-----
> From: Anne Anderson [mailto:Anne.Anderson@Sun.com]
> Sent: Wednesday, January 15, 2003 10:57 AM
> To: RLTC; rights-requirements@lists.oasis-open.org
> Subject: [rights-requirements] Comments on Requirements version 16
>
>
> Comments on RLTC Requirements Version 16, last modified 11/26/2002
> Comments from: Anne Anderson
> Comments date: 15 January 2003
>
> These are all comments I have made in meetings, and that others
> have made, but I will reiterate them here.
>
> 1. "Thus, in this document we use the words equivalent to the
>    marketplace concept of rights: permissions granted by one
>    entity to another."
>
>    This is NOT the "marketplace concept of rights".  A "right" is
>    something that I have intrinsically, not something that
>    someone grants to me.  For example, the "right to life,
>    liberty, and the pursuit of happiness".  The Bill of Rights is
>    a recognition of certain rights, not a granting of rights.
>
>    From the American Heritage Dictionary, the definitions that
>    are most applicable (as a noun): "1. That which is just,
>    morally good, legal, proper, or fitting.  5. Something that is
>    due to a person by law, tradition, or nature.  6. A just or
>    legal claim or title."
>
> 2. 'the technical work of the RLTC is *not* directed
>    to... Develop a language or system that addresses legal rights
>    and processes.  Examples of these rights include, but are not
>    limited to, those legal rights termed as "fair use rights" and
>    contractual rights.'
>
>    As a key Internet standard in various architectural models,
>    the output of the RLTC MUST be comprehensive enough to ensure
>    that the various applications of the standard will not
>    interfere with or subvert legal rights such as "fair use
>    rights".
>
>    If the key standard in this area does not address these
>    issues, then consumers will be forced to participate in, argue
>    with, or litigate against every extension to this core
>    standard that makes it useful in real applications.  Consumers
>    collectively are a large group, but their direct benefit from
>    working on any particular standard is small.  Entities with no
>    interest in consumer rights, but who can benefit from
>    restricting consumer rights are a small group, and their
>    direct benefit from working on any particular standard is very
>    large.
>
>    The argument has been made that the developers of the "rights"
>    language are not able to know all the legal rights that users
>    may have in various domains.  This is not a reason for failing
>    to address protection of these rights.  Protection could be
>    provided in various ways.  Just to give one example, the RLTC
>    could specify a template for a required extension that MUST be
>    tailored to and included in any conforming application.  The
>    template could spell out examples of rights that must be
>    protected, and specify that any of these that apply must be
>    included and that any additional rights pertinent to the
>    application domain must also be added.  The RLTC membership
>    includes an incredible legal resources for contributing to any
>    possible solution to this problem.
>
>    The argument has been made that no rights language can
>    technically protect traditional legal rights such as fair use.
>    If this is true, then no rights language should be used, and
>    particularly should not be standardized.  Just because the
>    technical means exist for one party to protect its rights in
>    such a way that another party's rights are violated does not
>    mean that those technical means should be used.
>
>    Standardization confers the support of all approving parties
>    upon the language, protocol, etc. that is being standardized.
>    When the language, protocol, etc. benefits only a small
>    community and harms a large community, then the benefits of
>    standardization should not be granted.
>
> 3. The proposed language can probably not be implemented, at
>    least in its targetted domains, in a way that does not
>    infringe upon intellectual property claims.  The owners of
>    that intellectual property have offered only RAND terms for
>    licenses to that intellectual property.
>
>    Approval of a standard that requires payment of license fees
>    for IP effectively grants a monopoly to the owner of that IP,
>    while providing no protection to the community against mis-use
>    of that monopoly.
>
>    "RAND" has no legal meaning.  It offers no protection to the
>    community against the imposition of prohibitive license fees.
>    RAND has been used in the past to extract increasingly more
>    onerous fees as the associated standard has become more widely
>    adopted.
>
>    Any key Internet standard must be freely implementable.
>    Interoperability requires that all parties that wish to
>    participate in the Internet must implement key standards.  Any
>    key Internet standard that requires payment of unspecified
>    license fees will be a detriment to the development and use of
>    the Internet.
>
>    The argument has been made that the developers of a standard
>    can never know who holds IP claims that might be asserted.
>    That is true.  But where clear IP claims *are* known, and
>    where RF licenses to that IP are not offered, any standard
>    that a large proportion of the Internet community will be
>    forced to implement and utilize must be designed around those
>    known IP claims.  If it is not possible to design the standard
>    around such known IP claims, then the standard should not be
>    approved.
>
> -- 
> Anne H. Anderson             Email: Anne.Anderson@Sun.COM
> Sun Microsystems Laboratories
> 1 Network Drive,UBUR02-311     Tel: 781/442-0928
> Burlington, MA 01803-0902 USA  Fax: 781/442-1692
>
>
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