[cabfpub] [EXTERNAL]Re: ]RE: Ballot 194 - Effective Date of Ballot 193 Provisions is in the VOTING period (ends April 16)

Jeremy Rowley jeremy.rowley at digicert.com
Tue Apr 18 21:12:12 UTC 2017

In your view, the act of submission does not require authorization to post on the Public Mail List, does not require acceptance by the Public Mail List, nor does it require distribution as part of the public mail list. Your view is that "All voting will take place via the Public Mail List" does not correspond with the deadline of "Members shall have exactly seven days for voting" - that is, provided that a vote is (eventually) shared on the Public Mail List, that the requirement is met. 

[JR] Yes – they are distinct actions. The bylaws would use the same word for both if they were the same action. I think is apparent considering the bylaws use different terminology to specify that the documents must be distributed to the mailing list (such as 2.3(f)). 


The wording does though, within Section 5.2, by stating that:

"The following materials shall be posted to the Public Mail List or Public Web Site:"


and then continuing

"(c) Messages formally proposing a Forum ballot (including ballots to establish, modify, or terminate Working Groups), individual votes, vote and quorum counts, and messages announcing ballot outcomes and voting breakdowns. "


It would appear you're suggesting that "sent" and "posted" are distinct. That is, that Section 5.2 merely states that "Messages formally proposing a Forum ballot" must eventually appear on the Public Mail List, but that, by logical extension of the context for voting, this only needs to occur at some point in the future, and not necessarily in conjunction with the disclosure of the Ballot.


[JR] “Submitted” and “Posted” are two different words. So is “Sent” and “submitted”. It’s basic legal drafting to use the same word if you want the same meaning. The fact that the words chosen differ means either poor drafting or they have different meanings.


This interpretation is based upon Section 2.2(d), which states that "the deadline clearly communicated in the ballot and sent via the Public Mail List."


Since this is the same method of disclosing votes, is it reasonable to conclude that you believe it is a valid interpretation of our Bylaws that members may, in a coordinated enterprise, ensure their submissions to the public mail list are delayed (for example, using a "send delay" or by temporarily blocking communication the public list), coordinate their votes with eachother and, upon conclusion of such a Ballot, direct the Chair to post to the Public Mail List?


[JR] As Gerv brought up in my previous post on this very issue, it’s too far-fetched to consider. 


This is the interpretation that naturally results from suggesting that "sent via the Public Mail List" and "All voting will take place via the Public Mail List" are not required to appear on the Public Mail List within the alotted time, and that eventual consistency is sufficient.


[JR] I’m not sure, but I’m now leaning towards yes. Previously, I thought the ballot failed, not because Microsoft failed to vote, but because not “All voting took place on the Public Mail List”. However, it really did because Kirk forwarded it the mail list. As re-distribution of a vote is not prohibited and (a) all voting takes place on the public mail list is separate from (b) “votes not submitted to the public mail list will not be considered valid”, Microsoft did have its vote submitted  in time and all votes took place on the public mail list (although I do acknowledge the term “submitted” is undefined so reasonable minds may disagree).

 Is it consistent, then, that the act of "submitted Exclusion Notices" does not require confirmation of the receipt by the Chair? If the Chair claims not to have received an Exclusion Notice after the 3 business days afforded, is that exclusion valid?

[JR] Which section? 2.3(f) requires that the chair distribute any exclusion notices submitted in accordance with Section 4.2 of the IPR to the public mailing list. The fact that this section uses “distributed” instead of “submitted” is what made me change my mind about the Microsoft vote. Why didn’t the other sections use “distributed” instead of “submitted”? If the author meant “distributed” they would have used it throughout. The two words must mean two different things.


But this is the problem. The interpretation you're seemingly advocating is that "sent" merely indicates TO. This is clearly evidenced in Phillip Hallam-Baker's proposed definition for "sent". As a consequence of this, the Bylaws in (g) do not provide assurances that the actual message will be received and/or posted, but will, by the same interpretation and intent being argued for here, constitute having met the obligations as "sent" to the Public Mailing List.


[JR] “Submitted” isn’t “sent”. As it is not defined, I’m not sure what the word means, but it does not mean “distributed” (because that word is also used in the document). Where do you see that the intent is for the actual message to be received or posted? I didn’t see that as an objective in the bylaws. An equally likely objective is that the bylaws use the word “submitted” instead of “distributed” to account for issues with the mailing list (like this one) and avoid arguments over clock issues, posting delays, and other such problems.  If the bylaw’s purpose was to ensure distribution, then bylaw language is VERY deficient. 


Put more explicitly, if we accept "sent" merely means adding to the To: (or using RCPT TO/DATA, as suggested by PHB), then an organization can "submit" an Exclusion Notice to the Chair (without confirming its receipt), "send" an Exclusion Notice to the Public Mail List (without ensuring the posting), and thus exclude an Essential Claim from the Forum's IPR Policy. Further, the Chair can "distribute" the Exclusion Notices (without confirm its receipt).


[JR[ “Submit” should be defined. I don’t know what it means, but it can’t mean “sent” or “distributed”.  


Do you disagree with this conclusion from the interpretation of sent/submitted? If so, can you clarify?


[JR] Yes. I don’t know whether it means merely adding “To:”. However, I do agree that the following process is permitted:


(f)  The Review Period will continue to the end of the 30- or 60-day period, as applicable, regardless of the number of Exclusion Notices filed pursuant to the IPR Policy during such period, if any.  No later than 3 business days after the conclusion of the applicable Review Period, the Chair will distribute any Exclusion Notices submitted in accordance with Section 4.2 of the IPR Policy via the Public Mail List; provided, however, that the Chair may distribute such Exclusion Notices earlier.


(g)  In addition to following the process for submitting Exclusion Notices set forth in Section 4 of the IPR Policy, Members will also send Exclusion Notices to the Public Mail List as a safeguard.


With “Sent”, “distribute”, and “submit” potentially meaning three different things. I haven’t done a very thorough review of the word “sent” in the BRs. However, I think it’s logical that the drafter would have said “the Chair will submit any Exclusion Notices submitted in accordance with Section 4.2 of the IPR Policy via the Public Mail List; provided, however, that the Chair may submit such Exclusion Notices earlier” if submit meant the same thing as distributed.


 I realize this sounds very much like "Bylawyer-ing", but I hope it clarifies the importance of these concerns. If this interpretation of "submit" stands, and Microsoft's vote is accepted, it means that Ballot 183 has failed to meaningfully address the concerns related to IP disclosures, in a way that creates a singular and central point of failure or abuse. While we assume good faith in all participants, the risk becomes unacceptable if there is no assurance that exclusions will either meaningfully be disclosed (if done by other parties) or accepted (if done on our part). The key advantage of the Forum, carefully negotiated over years of effort, which is that of the IP protection for such contributions, entirely evaporates.

[JR] I’m okay with bylaw-ering. However, I disagree with your assessment on the IP issue. The issue remains with all non-members. There’s nothing that ensures that all IP is disclosed. I also think that the bylaws were likely intentionally worded that way to avoid anyone accidentally assigning their IP due to a failure by the email server. However, that’s speculation. If the drafter intended that disclosures had to be received by the forum to become effective, the drafted would have used a different word than “submit”. 


Considering that this very exact scenario was repeatedly discussed in the Forum and the calls regarding our process, and the intent was very much that the act of "submiting" something is "to post", and that "to post" means to ensure it is publicly distributed and archived, the belief at the time was that "submit" means the plain reading of it.


[JR] I agree. However, it seems the plain readings vary. Why does “to post” mean ensuring something is publicly distributing and archiving? I don’t see that supported in the bylaws.


I'm curious, how would you propose to clarify it, given that such a position argues that "submit" and "send" do not require any receipt or confirmation. Do you believe "post" meaningfully addresses this? If not, do you have any suggestions on how to reform Section 5.2 to reflect the plain understanding that the Forum has had since Ballot 73 and Ballot 98, both of which supported the belief that "sent", "send", "submit" and "post" were all interchangable methods of expressing that a message shall appear to all members subscribed and as publicly archived?


[JR] Use “Distribute” or define the term submit to require actual delivery of the message.  Get rid of the ambiguity by tightening the language so its clear what we meant. I don’t recall ever discussing “sent”, “send”, “submit”, etc.  Can you link? I’m not being flippant on that request – IMO, if we did have the discussion that would actually solve the issue and put everything to rest. Historical records are usually determinative of definition. 

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