[cabfpub] Proposed Ballot 183 (Ballot process)

Ryan Sleevi sleevi at google.com
Mon Jan 9 22:47:57 UTC 2017

Thanks Virginia.

One more (set of) questions related to the PAG is

1) Is the PAG a Balloted formation or something that is automatically
  a) The Bylaws read as to suggest automatic, which the IPR Policy seems to
support (in 7.1 and 7.2), but the choice of convening in 7.3.1 implies that
it is Balloted, by virtue of the selection of the chair requiring an
election, our elections requiring ballots, and the convening of the PAG
contingent upon the selection of a Chair (per 7.3.1)

2) If it is balloted, what is the participation model for the PAG? The IPR
Policy is silent in this
  a) It may be Members only
  b) It may be Members and Associate Members
  c) It may be Members, Associate Members, and Interested Parties
  The choice of which of these three options affects/relates to the other
questions I asked regarding consensus, given that Associate Members and
Interested Parties are prevented from some activities (such as voting).
Concretely, consider a PAG that is convened of 5 Members and 5 AMs/IPs. Is
the recommendation of the PAG formed by the 5 (voting) members, through
consensus of the 10 participants, by discretion of the Chair (of the PAG),
or some other method or means?

3) What is the observation model of the PAG? Namely, does it happen on a
Public Mail List (per 5.2 of the Bylaws) or a Member Mail List (per 5.1 of
the Bylaws)?
  a) If Member mail list, what would be the reasoning for that? Presumably
it would be under 5.1(e), but highlighting that would at least aid
transparency before we form such a PAG

4) What reports, if any, are expected to be produced by the PAG? 5.2
requires the production of draft/final agendas for WG Meetings and Forum
Meetings & Teleconferences, so this goes back to the question of 2.3(h)
regarding "Working Group", "Forum Meeting", or "something else"

5) Do you anticipate that meetings of the PAG would affect the calculation
for Quorum with respect to 2.3(h)? Namely, in considering what the "last
three meetings" were, are PAG meetings considered as quorum determining?

Again, these are rather pedantic notes, I admit, but they do have
subtle-but-significant implications on the broader work mode and consensus
evaluation, so it'd be good to get perspective and ideally agreement on

On Mon, Jan 9, 2017 at 12:53 PM, Virginia Fournier <vfournier at apple.com>

> Hi Ryan,
> Thanks for your comments.  I’m working on a response.
> Best regards,
> Virginia Fournier
> Senior Standards Counsel
>  Apple Inc.
> ☏ 669-227-9595 <(669)%20227-9595>
> ✉︎ vmf at apple.com
> On Jan 9, 2017, at 12:23 PM, Ryan Sleevi <sleevi at google.com> wrote:
> On Mon, Jan 9, 2017 at 10:44 AM, Virginia Fournier via Public <
> public at cabforum.org> wrote:
>> Hi Kirk and all,
>> Please see my responses to your comments below.  I’ve also attached an
>> updated draft with redlines to show changes from the last draft.  The
>> diagram is also included for those who may not have seen it.
> Virginia,
> Thanks for the work you, Chris, and others in working on this. I have
> various questions about "exceptional" situations that might arise due to
> interpretation differences in this ballot. My hope is that we can try to
> find a way to minimize these, if possible, or reach common consensus and
> understanding about what might happen otherwise. Please understand that
> while this is a rather large list, largely of hypotheticals, my goal is to
> try to ensure we have, as best as possible, some sort of 'ground rules' for
> the formation of a PAG in response to Ballot 182. I've intentionally
> avoided making specific recommendations right now, mostly so that we can
> see which of these scenarios we believe is likely, without getting
> distracted by objections to particular solutions. If we can agree that
> "Yes, this might be a problem" for various bits, I'm hoping we can come to
> quick and easy solutions. Similarly, if "No, that's not a problem because
> X" is the answer, then I wouldn't want to add to an already over-long email
> by discussing possible solutions to non-issues.
> It would be great to know if you agree with these interpretations, and the
> potential issues that arise, or otherwise know if I've missed something in
> either the reading or interpretation.
> 2.3(c) - What occurs, if anything, if two Ballots propose modifications to
> the same text at the same time? More specifically, what is it members are
> voting on with the Ballot - the redline changes being made or the final
> text containing the BR-version-at-time-of-voting with redline applied?
>   Possible Conclusions/Suggestions that have been made in the past:
>    a) The Chair has discretion to correct/resolve any errors/conflicts
> that arise
>      a.1) What would prevent the Chair from intentionally/unintentionally
> introducing new IPR risk during their modifications?
>    b) Prohibit a new Ballot from being started while another Ballot is
> still pending that modifies that same section/that would otherwise result
> in such a conflict
>      b.1) Proposers right now set the associated timelines (for review &
> voting); the Bylaws only specify the minimum bounds. Presumably, one might
> want to consider an upper-bound to prevent 'squatting'
>    c) Allow both ballots to proceed
>      c.1) How do we determine what the final text is if both ballots
> conclude at the same time?
>      c.2) Should we require that the 'more recently proposed' ballot
> include provisions about any existing ballots?
> 2.3(d) / 2.3(e) - These seven day voting periods both represent lower
> bounds, not exact bounds. For example, members may choose to extend voting
> to 14 days if, for example, they believe that holidays might interfere with
> or otherwise impact a vote.
> 2.3(g) - This is an existing issue with the Bylaws, so I'm more than happy
> to accept it may not be appropriate to change in this revision, but it's
> worth noting that the membership criteria does not define "product
> suppliers" - it defines "browsers". I suspect this is one of the many
> internal self-inconsistencies, but I would hope that in the absence of
> correcting this, we agree that the interpretation of this requirement is
> 2.3(a)(3) of the Bylaws (v1.4)
> 2.3(h) - Is it correct to suggest that "both teleconference and
> face-to-face meetings" be reworded as "either teleconference or
> face-to-face-meetings"? I'd be curious to know if this change presents any
> disagreement, but my understanding is that our Quorum has been taken as the
> union of the past three.
>   a) One possible issue with this Quorum has been the example of the "IPR
> Task Force". As the Bylaws provide no such definition of what a "Task
> Force" is, we must conclude either it's
>      1) a "Working Group" (which requires the production of Ballot to
> charter)
>      2) a regular Forum meeting (meaning that Quorum is defined over two
> weeks - 1 regular meeting, 1 TF meeting, 1 regular meeting - rather than
> the four weeks it takes for 3 regular bi-weekly meetings)
>      3) or a meeting of independent parties outside the CA/Browser Forum
> (which means no IP protections apply).
>  b) Otherwise, we have the possibility of measuring quorum as only those
> that have participated in both teleconferences *and* the past three
> meetings, which does not seem a correct read
> 2.3(i) - The Forum leaves it ambiguous as to who is directed to complete
> this action, as well as what implications this has, if any, for the
> 'finalization' of the ballot if it's failed to be followed.
>   1) For example, if the Chair is on vacation during the close of the
> voting period, does the Vice-Chair take this action?
>   2) If either the Chair or Vice-Chair fail to take this action, is the
> Ballot still considered valid? Invalid?
> 2.3(j) - This is better in that it directs the Chair to take a particular
> action, but fails to consider what implications, if any, happen if the
> Chair fails to take this action.
>   1) Assume the Chair is on vacation again. For purposes of IP Review,
> does the Period begin on that second business day, or does it begin when
> the chair returns?
>   2) Assume the Vice-Chair sends out the message. For purposes of the
> Bylaws, does that constitute notice of the IP Review Period?
>   3) We previously had the very unfortunate issue where the Chair was
> employed by the same company as the one submitting the Exclusion Notice,
> and there was some ambiguity with regards to whether the submission was
> made by the deadline. In line with Kirk's previous remarks, do you believe
> there's any path to correct this with the Bylaws, or would you view this as
> necessitating a change to the IPR Policy (specifically, Section 4.3)
> 2.3(j) - Again, assume the Chair fails in any of these steps, what do you
> believe happens / should happen?
>   1) Chair fails to distribute Exclusion Notices within two business days
> after the Review Period closes
>   2) Chair distributes an incomplete set of Exclusion Notices
>   3) Chair's MTA represents to the person making the Exclusion Notice that
> mail has been successfully queued for delivery (e.g. the mail server
> reports to the sender that it's accepted)
>      a) Chair encounters a mailbox corruption issue and loses exclusion
> notices
>      b) Chair's antivirus system later quarantines the mail so that it's
> not kept in their inbox, but instead moved to a quarantine
> 2.3(k) - Is there any timeframe for this notification? Unlike other
> requirements directed at the Chair, this doesn't seem to be.
> 2.3(k) - I believe "public website list" was a typo, and it just meant to
> say "public website" ?
> 2.3(k) - For avoiding any ambiguity, historically the interpretation was
> that a Ballot is "in force" when a new versions of the Guideline are made
> public on the website. Do you believe this section supports that
> interpretation?
>   a) One interpretation is that "the Initial Vote is deemed to be final
> and approved" the moment the Review Period closes, but
>     1) What happens if the Chair failed to distribute Exclusion Notices
> per 2.3(j), due to the reasons I mentioned. Is the Ballot's finality keyed
> on 2.3(j) being successful?
>   b) Another interpretation would be that it would be once the Chair sent
> out the mail, regardless of what was published on the public website
>   c) Another interpretation would be that it is only once it's published
> on the public website (e.g. once all of 2.3(k) has been met)
> 2.3(l)(i) - This requires that a PAG to be formed, but there's no
> guarantee that a PAG will be formed, in either the Bylaws or the IPR. That
> is, given that the PAG is voluntary, what actions, if any, happen if there
> are no volunteers for the PAG (for example, due to concerns regarding
> knowing infringement)?
> 2.3(l)(ii) - How are material changes determined? Is that the discretion
> of the Chair? The discretion of the proposers? The Forum at large?
> 2.3(l)(ii) - How is it determined that the PAG has provided a
> recommendation? Is it through action of the Chair? Through a formal Ballot
> of consensus?
> 2.3(l)(ii) - What happens if the PAG declines to provide a recommendation
> in a timely fashion? For example, a PAG is convened, ten members are
> initially active, but response tapers and the PAG does not formally
> recommend any action. What occurs to the Ballot? What occurs to any future
> ballots?
> 2.3(l)(ii)(B) - For purposes of clarity, is it fair to state the the
> Ballot has failed for IPR (as a distinct case from failing for lack of
> quorum or failing due to lack of Yes votes)?
> 2.3(l)(iii) - It would seem this step would allow the PAG to
> 'indefinitely' keep a ballot hostage, even if it is successfully voted on
> by members. This relates to the ambiguity of recommendation (per the
> questions re: 2.3(l)(ii)), but I'm struggling to find anything that would
> prevent the following: Ballot proposed, Forum votes yes, IP exclusion
> received, PAG formed, only the excluder joins the PAG (thus leaving no
> Chair), excluder (does not make a recommendation in a timely fashion or
> recommends not proceeding). In the case of not making a recommendation, it
> seems the Ballot is "hung" forever. In the case of recommending not
> proceeding, it seems that the cycle can continue indefinitely, until
> additional members join the PAG (so as to recommend some other action). In
> that case, we potentially have a 'hung PAG' (imagine 2 members with 50/50
> split), and this is why the questions about the nature of a PAG are
> relevant.
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