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

Tue Apr 18 21:26:37 UTC 2017

On Tue, Apr 18, 2017 at 5:12 PM, Jeremy Rowley <jeremy.rowley at digicert.com>
wrote:

> 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)).
>

This is an interesting, and entirely unexpected, conclusion. Could you
provide what you believe are the definitions for each of these words and/or
how they should be determined?

> 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.
>

Considering the Ballot 194 has been shown to be the result of "poor
drafting", and that the previous Ballot it was "correcting," Ballot 193,
was originally much worse, as were the drafts of Ballot 183 (of which we
called out), how do you believe that materially changes things?

> 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.
>

Why? We're very concerned about this, much as with the discussions of
Ballot 180 - 182. The legal risk is a significant danger to continued
participation, as is the current approach the Chair has unilaterally
declared.

> 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).
>

So you believe voting can happen after the conclusion of the Ballot?

>  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.
>

Because it was poorly drafted, as shown by the versions that I linked. That
is, I do not mean to undermine Virginia's many useful contributions on this
matter, but the point was made throughout that there was a poor choice of
words, and that there was a clear and plain understanding.

You're now seeming to argue that "sent", "post", "distribute", and "via"
all represent distinct, and unrelated events. How do you see the process
working?

For example, Section 2.3 states "The Chair will initiate the Review Period
by sending the Review Notice to both the Member Mail List and the Public
Mail List."

As demonstrated by the discussion on Ballot 183 (which adopted this text),
this was understood to be posted. If we accept your definition of sent,
then there is no requirement that any member receive such a Review Notice,
because it does not need to be accepted by or distributed to subscribers of
the Public Mail List or the Member Mail List.

>
>
> 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).
>

Why not? That is, how do you conclude that they are different definitions,
if you've not articulated those definitions.

> 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.
>

Section 5.2

"Forum Members and Interested Parties may post to the Public Mail List in
compliance with these Bylaws. "
"Anyone else is allowed to subscribe to and receive messages posted to the
Public Mail List, which may be crawled and indexed by Internet search
engines. "

Definitions:
Public Mail List: The public email list-serv currently located at
public at cabforum.org maintained by the Forum for communications by and among
Members and Interested Parties. The Public Mail List may be read by Other
Parties, but Other Parties may not post to the Public Mail List.

If we accept your definition that sent and distributed are distinct, must
we also accept that Gordon's vote, by not being posted to the Public Mail
List due to lack of permissions, means that he was an Other Party at the
time of posting, and not a Member?

> 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”.
>

And your conclusion that it cannot mean the same is because it's a
different word, and two words cannot mean the same thing, correct?

>
>
> 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.
>

You mean the Bylaws. Perhaps that was a drafting error?

> 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.
>

The drafter was Virginia, and I linked to you the discussion of concerns.
Do you still belief that the drafter had a different intent? If the drafter
clarified the intent, would you accept that clarification? If not, how
would you propose to resolve this ambiguity, if not by Ballot?

> 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.
>

As mentioned above, Section 5.2 states

"Anyone else is allowed to subscribe to and receive messages posted to the
Public Mail List, which may be crawled and indexed by Internet search
engines. "

Is your viewpoint that in the absence of the word such as "all" or "every",
that such messages may be posted, but neither received by Members or
crawled and indexed by Internet search engines?

> 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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