[rights] Comments on Requirements version 16

[Anne Anderson <Anne.Anderson@Sun.com>]

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