[legal] Feedback on OpenID IPR Policy and Process
Gabe Wachob
gabe.wachob at amsoft.net
Fri Oct 26 23:17:43 UTC 2007
Dick –
Your feedback has been brought to the attention of the IPR task
force, and I suspect it will generate a lot of discussion!
-Gabe
_____
From: legal-bounces at openid.net [mailto:legal-bounces at openid.net] On Behalf
Of Dick Hardt
Sent: Wednesday, October 24, 2007 11:35 PM
To: legal at openid.net
Subject: [legal] Feedback on OpenID IPR Policy and Process
Feedback on OpenID IPR Policy
--------------------------------------------
2. “Contributions” mean any communication to or through a particular
Specification Mailing
List, or other textual materials, that are provided by a Contributor and are
intended for
inclusion in an OpenID Specification.
This is a little vague on the intention. If I post on my blog about OpenID
about where I think it should go, is that a Contribution? Who determines if
it was intended for inclusion?
3. “Contributor” means, with regard to a particular Work Group, any person
(individual,
entity, or otherwise) who has signed the applicable agreement in accordance
with Section II.
1(b) and has joined such Work Group by requesting access to the applicable
Specification
Mailing List and, if such person is an individual, includes such person’s
employer or other
person or entity to whom that person owes a duty with respect to activities
such as his or her
participation in OpenID.
Who or what is OpenID? "OpenID" is referenced a number of times. It is not
defined. Is it the community, the spec, the foundation? The term is used in
a number of different ways. I would suggest it only be used as an adjective
and each use be defined in the definitions.
(b) OpenID Contribution Agreement.
Is this document the agreement? Is there a separate agreement? What is to be
signed and returned? I don't see any signature blocks.
Who is the agreement with? There is the Contributor and ???
What jurisdiction is the agreement made in? Who enforces the agreement? What
happens if a Contributor breaks the agreement?
1. Becoming a Contributor.
(d) Retroactive Effect. In consideration of OpenID allowing any individual
or entity to
become a Contributor, such individual or entity acknowledges that Section V
and VI of this
Policy apply to any Contributions made before signing the OpenID
contribution agreement
or otherwise agreeing to the terms of this Policy.
How would these Contributions be determined? Would a post on ANY OpenID
mailing list be considered a Contribution?
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+++++++++++++++++++++++
OpenID Process Document
---------------------------------------
1 Definitions. Each of the following initially capitalized
terms has the respective meaning stated below. All other initially
capitalized terms have the meanings assigned in this OpenID Process Document
(“Processes”), in the OpenID Foundation’s IPR Policy (“IPR Policy”), or in
the Bylaws.
Is this not the OpenID Process Document? Is that not the same as the terms
below?
Referring to the OpenID Foundation Bylaws as a source of definitions I think
is troublesome as the Bylaws can be modified, causing a potential change in
this document. I'd prefer to have all definitions in this document so that
it is complete. Is there a reason for spreading the definitions around?
1.3“Bylaws” means the then-current bylaws of the OpenID Foundation, as may
be modified from time
to time as provided therein.
I could not find the Bylaws for the Foundation online. A URL for the Bylaws
should be included (as well as getting them online!)
1.5 “Editor(s)” means, for a particular Specification to be
developed by a particular WG, the individual Contributor(s) selected to
coordinate development of, and transcription of the work of the WG for, such
Specification, as well as (together with any other Editors for that WG) to
administer WG operation.
How are Editors selected? What stops all Contributors from being Editors?
1.6 “Specifications Council” means a group comprised of: (a)
all past Editors of Final Specifications who are still actively contributing
to the OpenID community; (b) two representatives from the Board (one of whom
is the OpenID Foundation Executive Director; and (c) all Editors from
current WGs. Each Editor will participate as a non-voting member of the
Specifications Council until he or she has published a Final Specification,
at which time such Editor will become a voting member.
What makes an Editor an actively contributing member? When is an Editor
removed? What is the rational for the OpenID Foundation to be involved in
the Specifications Council? Are those voting positions?
1.7 “Supermajority” means at least two-thirds of those
entitled to vote on an issue.
What is the rational for needing a Supermajority?
1.8 “Minimum Membership” means, five Contributors. For a new
WG to be formed, at least one such Contributor should optimally be a member
of the Specifications Council.
What happens if there are no Contributors in a WG? Will it more likely be
rejected? What is the rational that there should be a member of the
Specifications Council?
2 Work Groups.
2.1 Proposal. Any group of at least Minimum Membership may
form a WG by submitting a proposal via the mailing list specs at openid.net;
such proposal will include the following items, will be written in English,
and will be provided in a plain text electronic form:
(a) Charter. The proposal will include the WG Charter, which will
include:
(i) a WG name, which will not include trademarks not owned by the
OpenID Foundation or content that is infringing, harmful, or inappropriate,
and any acronym or abbreviation for that name;
(ii) a clear statement of purpose;
(iii) an initial Scope, which must be related to the purpose of the
OpenID community and which will include a definition of what is and is not
the envisioned “work” of the WG;
(iv) a proposed list of Specifications, including working titles, to
be produced (and any other deliverables) and projected completion dates;
(v) anticipated audience or users of the work;
(vi) the language in which the WG will conduct business;
(vii) the method of work including any virtual or planned face-to-face
meetings;
(viii) a basis for determining when the work of the WG is completed.
(b) Background Information. The proposal will also include the following:
(i) any related work being done in other WGs or organizations, why
the proposed new WG is necessary, and any proposed liaison with any such
other WGs or organizations;
(ii) the names, email addresses, and any Constituent affiliations of
at least the Minimum Membership who support forming the WG (“Proposers”) and
the proposed Editor(s); and
(iii) optionally, a list of Contributions that the Proposers
anticipate will be made to the WG.
2.2 Review. The Specifications Council will review proposals
within 15 days after receipt and promptly provide notice to
specs at openid.net, either accepting it or explaining the reason for
rejection. If a proposal is rejected, it may be modified and resubmitted.
The reasons for rejection will be limited to:
(a) an incomplete Proposal (i.e., failure to comply with §2.1);
(b) a Supermajority decision that the proposal contravenes the OpenID
community’s purpose;
This seems potentially arbitrary. What if there is a proposal that the
Specifications Council does not like? This looks to be a source of politics.
Why not let WGs get started and put more judgement on the output?
(c) a Supermajority determination that the proposed WG does not have
sufficient support to succeed or to deliver proposed deliverables within
projected completion dates; or
Another potentially arbitrary decision point. Why not let the WG start and
see if it can complete?
(d) a good-faith determination that the proposal is likely to cause legal
liability for the OpenID Foundation or others (in which case, the
Specifications Council may seek Board review of the proposal).
2.3 After Acceptance. Promptly after acceptance, a mailing
list will be created for the WG and one or more of the Proposers should
notify general at openid.net of the new WG. This notice will announce the
formation of a new WG, invite participation, and describe the WG’s proposed
work, including any planned meetings (as based on the approved Charter).
The first obligation of a new WG is to establish and approve its Scope,
which should broadly describe the outer limits of the WG’s work.
2.4 Contributors. Only persons or entities that have
properly agreed to the IPR Policy may become Contributors to (or participate
in) a WG. A WG may, however, make copies of its Specification Mailing List,
drafts, and other documents available for review by non-members. A WG will
not review or acknowledge comments by, or accept Contributions from, anyone
other than Contributors. The Specifications Council may close a WG at any
time that the WG has not had Minimum Membership for six consecutive months.
How is Minimum Membership determined? Addresses susbcribed to the mailing
list? Or is it via a formal withdrawal.
2.7 Editors. A WG’s work is coordinated by one or more
Editors, and each WG must have at least one Editor and additional Editors
may be selected at any time. Different Editors in a WG may, however, be
associated with different Specifications. If an Editor takes emergency
leave, or is otherwise unavailable, an additional Editor will be selected.
If a WG does not have an Editor, it will suspend work until an Editor is
selected. The Specifications Council may close a WG at any time that it has
not had an Editor for the immediately prior 30 days. An Editor may also be
removed at any time by the Contributors to the applicable WG, under §2.16;
or by the Specifications Council, on its own initiative or in response to a
complaint.
Per above, how are Editors selected?
2.16 Decisions.
(a) General. All decisions are either Core Decisions or Non-Core
Decisions, and all decisions may be made in meetings (e.g., face-to-face,
telephonic, or otherwise) or by email or other electronic means. Any
decision that is not clearly a Non-Core Decision will be treated as a Core
Decision. “Core Decision” means a decision relating directly to the WG’s
substantive work, including those related directly to Specification content,
Charter, or Scope; to approve an Implementers Draft or a Final
Specification, or to adopt Errata (defined in §3.6); and to amend the
Charter or to re-charter the WG. “Non-Core Decision” means any decision
other than a Core Decision, including decisions on date, time, place, and
method(s) of attending meetings and other administrative details regarding
WG operation or governance.
Moving Core Decision and Non-Core Decision definitions to the Definitions
section would make the document cleaner.
Is there a format for how decisions are presented? Who is responsible for
determining the results of a decision? If removing or adding an Editor a
Core decision or a Non-Core Decision? (S 2.6)
(b) Consensus. Consensus is a core value. To promote consensus, Editors
should encourage consideration and resolution of all legitimate comments of
Contributors. All WG decisions will optimally be made by determining
consensus, without formal vote. Editor(s) will assess consensus without a
formal vote and, when a proposal is pending, may interpret silence of those
who have received proper notice (or who are present) as assent. Consensus
does not imply unanimity, although there should be substantial support for
consensus decisions. For Core Decisions, consensus should reasonably
reflect the opinion of a Supermajority of Contributors to the applicable WG,
after reasonable inquiry by the Editors. For Non-Core Decisions, consensus
should reflect the opinion of a majority of Contributors actually expressing
an opinion.
How is consensus determined? Is silence consent? Does one negative vote mean
there is no consensus?
(c) Formal Vote. If a decision cannot be made by consensus, the WG
should defer decision until consensus can be reached. If deferral would
prejudice a WG’s work, however, the Editor(s) may call a formal vote. Any
such vote will otherwise be in accordance with §§4.6-4.9 of the Bylaws, as
applied to all Contributors (even if not OpenID Foundation members), except
as otherwise provided in this §2.16(c).
I would be much more comfortable if the Voting Process was defined in this
document. A change in the Bylaws voting which has to do with the Foundation
will now impact Voting in the IPR Process.
2.17 Closing a WG. A WG may be closed at any time by majority
vote of all of its then-current Contributors (or by Board resolution, for
the reasons stated in these Processes or otherwise if deemed necessary by
the OpenID Foundation to avoid or mitigate legal risk). The Board may also
close a WG that has completed all deliverables in its Charter and has not
agreed to develop new deliverables within the 180 days before closure; or
that has not reasonably progressed to achieve its purpose, as defined by its
Charter.
Why is the Board responsible for closing a WG?
3.4 WG Decision. Approval of a draft as an Implementers
Draft or the then-current Implementers Draft as a Final Specification should
be based on consensus. If the WG cannot reach consensus, then the decision
may be made by formal vote. The WG Editor(s) will notify the WG of a
determination that consensus has been reached or of a call for (and results
of) a formal vote. Any Implementers Draft or Final Specification approved
by the WG will include a list of Contributors who participated in its
development.
It is not clear that a Draft is approved by the WG, and only the WG. Is this
true?
So if a bunch of people that oppose a spec join as contributors, then a spec
will never be approved unless the Board steps in?
4 Board Involvement.
4.1 Delegation. The Board may delegate any of its
obligations under these Processes (other than creating subcommittees) to a
subcommittee of Board members, OpenID Foundation members, or both, and
applicable terms in these Processes will then be deemed to refer to the
subcommittee instead of the Board.
4.2 Complaints; Appeals.
(a) General. On proper notice from a Contributor, the Board will consider
any complaint related to, or appeal of, any action taken (or alleged failure
to act) related to these Processes. The Board has authority to take any
action it deems necessary to remedy a complaint or appeal.
So the implication of this is that the Board is the Final arbitrator and can
do whatever it wants?
4.4 Amendment. The Board may amend these Processes from time
to time, in its sole discretion.
Essentially the Board can make the specifications with this clause, as
anything can be changed by the Board.
4.5 Decisions. All Boards decisions under this §4 will be
made in accordance with the Bylaws.
5 Miscellaneous. All notices and correspondence under these
Processes will be by email. Unless stated, or context requires, otherwise:
(1) “written” or “in writing” refers to a non-electronic document only,
manually signed by authorized representatives of the writing party(ies); (2)
all internal references are to these Processes; (3) “days” means “calendar
days”; (4) “may” means that the applicable actor has a right, but not a
concomitant duty; and (5) all decisions of the Board (or an Editor) under
these Processes are in the Board’s (or such Editor’s) reasonable discretion.
Examples following “including” or “e.g.” are not exhaustive (i.e., are
interpreted to include the words “without limitation”), unless qualified by
words such as “only” or “solely.” These Processes will be interpreted
according to the plain meaning of their terms. Section headings are for
convenience only and will not affect the meaning of any provision.
Where are written documents sent?
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+++++++++++++++++++++++
General Feedback
-------------------------
1) Looking over the archives for Legal [1], I see nominal feedback from the
OpenID Community at large. This should cause concern.
2) The OpenID Foundation is becoming a Standards Body. This is contrary to
the Charter of the Foundation. The Governance of the Foundation did not
anticipate being a Standards Body and the political implications of being a
Standards Body. As a participant in the formation of the Foundation, it was
very clear that we did NOT want the Foundation to be Standards Body. Will
the Foundation be responsible and liable for enforcing the IPR of all the
specs?
3) Many organizations will NOT use a standard that has not been endorsed by
a recognized Standards Body. While the OpenID Foundation could lobby to be
recognized, that will take time and fractures the market as alternative
standards must be selected where OpenID would be appropriate.
Suggestion:
The IPR for OpenID 2.0 needs to be cleaned up. Why not simply have the
Contributors to the existing specs that are almost final make non-assertion
statements and assign copyright, then move all further OpenID standards work
to, dare I say it, OASIS? The Foundation could join OASIS which would allow
any individual contributor that is a member of OASIS to participate. As
holder of the OpenID trademark, the Foundation would have an effective veto
on a standard being able to use the OpenID trademark -- but no control on
the development of specifications.
- Dick
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