[cabfpub] Public Digest, Vol 55, Issue 13

Thu Nov 3 17:54:45 UTC 2016

Hi all,

Marc Braner does contract work for Apple.  He is attending a standards meeting this week on our behalf, but I’ve let him know that we need his input on this.  I’ll keep you posted.

Best regards,

Virginia Fournier
Senior Standards Counsel
 Apple Inc.
☏ 669-227-9595
✉︎ vmf at apple.com

On Nov 3, 2016, at 10:39 AM, public-request at cabforum.org wrote:

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Today's Topics:

  1. Re: Ballot process ordering (Ryan Sleevi)
  2. Re: Ballot process ordering (2) (Ryan Sleevi)
  3. Re: Ballot process ordering (Gervase Markham)
  4. IPR policy and authorial intent (Gervase Markham)
  5. question about patent-free guidelines (Dimitris Zacharopoulos)

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Message: 1
Date: Thu, 3 Nov 2016 08:15:16 -0700
From: Ryan Sleevi <sleevi at google.com>
To: Gervase Markham <gerv at mozilla.org>
Cc: "CA/Browser Forum Public Discussion List" <public at cabforum.org>
Subject: Re: [cabfpub] Ballot process ordering
Message-ID:
	<CACvaWvZxmdxgo0s5f+5L_2bmEVKZ8YB7=oT6BRDB+JpinU2bFw at mail.gmail.com>
Content-Type: text/plain; charset="utf-8"

On Thu, Nov 3, 2016 at 2:50 AM, Gervase Markham <gerv at mozilla.org> wrote:
> 
> OK, we're getting closer. Why do you think the 8.3 supports the idea of
> DG -> FG -> FMG? Here it is:
> 
> 8.3 f): "'Final Maintenance Guideline' is an errata to or amendment of
> an existing CAB Forum Final Guideline."
> 
> That seems fairly clearly to me to state that an FMG is a "patch" to an
> FG (i.e. a whole document), not that such a patch starts as a DG,
> becomes an FG and then becomes an FMG. Can you explain more clearly how
> you construe these words to reach your interpretation?
> 

You're treating FG / FMG as mutually exclusive, which is certainly one
reading.

It's important to consider all three:
d. ?Draft Guideline? means a version of a CAB Forum guideline that has not
been approved as a Final Guideline or Final Maintenance Guideline,
regardless of whether or not the Draft Guideline has been published.
e. ?Final Guideline? is any version of a Draft Guideline that the
Participants have agreed is a final version of such Draft Guideline
pursuant to the CAB Forum process for approving Final Guidelines.
f. ?Final Maintenance Guideline? is an errata to or amendment of an
existing CAB Forum Final Guideline.

The argument goes as this:
1) Everything starts as a DG, by definition, since a DG is anything that
hasn't been approved yet - and our Bylaws describe how Guidelines are
approved (Ballots & Review)
2) When a DG is voted upon, it meets the definition of "Final Guideline" -
since it's pursuant to the process of approving Final Guidelines (a ballot)
3) Therefore, we conclude that if everything starts as a DG, when it's
voted upon, it becomes an FG

Now, if you don't agree that everything starts as a DG, it'd be useful to
understand why. Similarly, if it does begin as a DG, it's useful to
understand why you don't believe a ballot to amend by a document meets the
formal definition set forth in e. It may *also* meet the definition of f,
but if it meets the definition of e, it's also a DG -> FG transition.

If we accept a successful ballot to amend an existing FG is both a Final
Guideline *and* a Final Maintenance Guideline (rather than *or*), then it's
a matter of determining whether the Review Period should be that of FGs (60
days) or FMGs (30 days). If you argue 30 days, then you're saying there is
a subclass of FGs which don't go through the 60 day period.

The core issue here is that the IPR policy is subtlely inconsistent with
whether or not e/f are mutually exclusive, given the definition in d. I
think it's totally reasonable to suggest that it's DG -> (FG || FMG), but
I'm suggesting that the text does not unambiguously support that - and it's
something to be resolved.
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Message: 2
Date: Thu, 3 Nov 2016 08:43:08 -0700
From: Ryan Sleevi <sleevi at google.com>
To: Gervase Markham <gerv at mozilla.org>
Cc: "CA/Browser Forum Public Discussion List" <public at cabforum.org>
Subject: Re: [cabfpub] Ballot process ordering (2)
Message-ID:
	<CACvaWvY50319Gz=Vp83W=tGk6SLqb023Fj3uzU8Z36_bV2sYRQ at mail.gmail.com>
Content-Type: text/plain; charset="utf-8"

On Thu, Nov 3, 2016 at 3:42 AM, Gervase Markham <gerv at mozilla.org> wrote:

> On 02/11/16 18:26, Ryan Sleevi wrote:
>> Unfortunately, yes, this is, I believe, a correct conclusion.
>> 
>> Nothing in our IPR policy states that the Forum Guidelines MUST not
>> include any Essential Claims; merely, that the goal is to avoid that
>> situation. Much of our IPR policy is structured in a way as to set
>> expectations about exclusions, but does not mandate there be none. This
>> is supported by the enumerated set of options in 7.3.2 and in words like
>> "seeks", "ordinarily", and "encouraged" within Section 2.
> 
> If the Forum then passed a ballot to remove the provisions in question
> (because they didn't know how long the PAG would take and didn't want
> people to be required to implement encumbered technology in the mean
> time) then what happens to the PAG? Does it disappear in a puff of logic
> because the thing it's examining is no longer in the document?
> 

I'm not sure why you think it would, but I agree that it's an element for
clarity.

Presumably, the PAG itself would decide what to do - at which point, it
might say "No action required - unless you try to pass this ballot again" -
or it might try to find a way to design around the Essential Claim to use
as a new Ballot. Which would then have a new Exclusion Notice (presumably,
since patent holders are inclined to assume no one can design around their
mechanism, whether or not that's technically true), convene a new PAG, in
which case, the new PAG might decide the previous PAG wasn't clever enough
in designing around it, or the new PAG might say "Nothing to see here, move
along"
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Message: 3
Date: Thu, 3 Nov 2016 16:14:20 +0000
From: Gervase Markham <gerv at mozilla.org>
To: Ryan Sleevi <sleevi at google.com>
Cc: CA/Browser Forum Public Discussion List <public at cabforum.org>
Subject: Re: [cabfpub] Ballot process ordering
Message-ID: <13ba51fd-f568-09f6-063f-ff7b02de5a21 at mozilla.org>
Content-Type: text/plain; charset=utf-8

On 03/11/16 15:15, Ryan Sleevi wrote:
> Now, if you don't agree that everything starts as a DG, it'd be useful
> to understand why. 

No, I agree everything starts as a DG.

> Similarly, if it does begin as a DG, it's useful to
> understand why you don't believe a ballot to amend by a document meets
> the formal definition set forth in e. It may *also* meet the definition
> of f, but if it meets the definition of e, it's also a DG -> FG transition.

Well, as someone who was part of the group drafting the original IPR
policy, I can tell you that the intent was certainly that "Final
Guideline" == "new document", and "Final Maintenance Guideline" ==
"patch to existing document".

> If we accept a successful ballot to amend an existing FG is both a Final
> Guideline *and* a Final Maintenance Guideline (rather than *or*), then
> it's a matter of determining whether the Review Period should be that of
> FGs (60 days) or FMGs (30 days). If you argue 30 days, then you're
> saying there is a subclass of FGs which don't go through the 60 day period.

And if we accept your initial assumption here, where is the part of the
document which says there _can't_ be a subclass of FGs which don't go
through the 60-day period?

> The core issue here is that the IPR policy is subtlely inconsistent with
> whether or not e/f are mutually exclusive, given the definition in d. 

I think the definition in D is pretty clear that Draft Guidelines become
one or the other, due to the use of "or". If it could possibly become
both, it would say "and/or".

Also, can you draw out the consequences of the "DG -> FG -> FMG"
position for Position 1 and Position 2?

Gerv

------------------------------

Message: 4
Date: Thu, 3 Nov 2016 16:21:12 +0000
From: Gervase Markham <gerv at mozilla.org>
To: CABFPub <public at cabforum.org>
Subject: [cabfpub] IPR policy and authorial intent
Message-ID: <ea2ea090-888e-d7d5-0f04-d410ee147ba8 at mozilla.org>
Content-Type: text/plain; charset=utf-8

Is authorial intent relevant in the discussion of what the IPR Policy means?

The lead architect for the policy in 2012 was Marc Braner of Microsoft.
He's now moved on to other things, but it may well be possible to
contact him and ask him which of Position 1 and Position 2 (or some
other position) is closer to what he had in mind when writing the policy.

If we were to establish that, would it at least give us a way forward
for the next few ballots? Supporters of the alternative Position may
want to argue that the method we are using has drawbacks which need to
be addressed, which would be fine. But would both sides be willing to
allow Mark to rule on original intent, and then adopt that method for at
least the purposes of getting the Forum back on its feet?

I think that if this ever came before a judge, antitrust or otherwise,
and he said "you stand accused of not following your IPR Policy", and we
said "well, there wasn't consensus on what it meant", then his follow-up
question might well be "well, did you ask the guy who wrote it?".
Perhaps we should do that.

Gerv

------------------------------

Message: 5
Date: Thu, 3 Nov 2016 19:39:31 +0200
From: Dimitris Zacharopoulos <jimmy at it.auth.gr>
To: public at cabforum.org
Subject: [cabfpub] question about patent-free guidelines
Message-ID: <9932ec05-6cef-3862-cc3e-ae8718e154ce at it.auth.gr>
Content-Type: text/plain; charset="utf-8"; Format="flowed"

I do have a rather "naive" question, trying to understand all the 
arguments that seem to be arriving to the lists (non-native English 
speakers struggle to keep up :).

If the guidelines allow for a number of options to perform a specific 
task, but we know (either before the guideline is accepted or after) 
that _only some of those options_ are royalty free, and _some others_ 
are claimed to be under IP, I see no problem. It would mean that all 
options reach an acceptable level of confidence for domain control that 
is described in the requirements (the "standard") but some CAs (the ones 
claiming the IP) would be able to use more options than other CAs. Of 
course, other CAs could use those claimed methods but they might be 
infringing another CA's patent. However, I think it's out of the CA/B 
Forum's scope to resolve this problem between CAs.

If the guidelines allow for a single option (or a very limited set of 
options) and these options were claimed for IP, then there would 
definitely be a problem and such cases should be looked at more carefully.

The current BRs allow for many domain validation methods and some CAs 
can use more methods than other CAs. I think that is fine but I could be 
wrong. Is it required that everyone in the world should be able to use 
all methods described in CA/B Forum's guidelines/requirements under a 
royalty free license? Is the CA/B Forum required to produce patent-free 
guidelines?

Thanks,
Dimitris.

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