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

["Radbel, Dmitry" <dmitry.radbel@umusic.com>]

Regretfully, I must agree with Brad that "[t]he RLTC is not going to produce a specification or a standard, and is wasting the valuable time of a lot of good technical people". Actually, RLTC is wasting time of a lot of people period, both technical and non-technical. To succeed, the TC must have a well-defined, manageable, constrained scope plus a set of rules.

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.

As for the scope, the insistence that the rights language itself must intrisically incorporate and enforce protection of "fair use" places us outside of any realistically achievable objective. For example, Anne seems to argue that fair use rights are constitutionally required. We are all of course entitled to our opinions, I would venture a guess that a number of people on the reflector share this one. 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


I think we can at least agree that there is the issue of finding balance between the rights of the copyright owners and the rights of the users.  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.  This balance, especially with the new digtial distribution technologies, is certainly a very complex legal, economic and policy issue. If presence or absence of some technology provides for unrestricted fair use but also makes it possible to violate copyright with little or no barriers (which is largely the situation nowadays) - is this an appropriate balance? 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)?

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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