[cabfpub] Analysis of individuals participating as Interested Parties

Kirk Hall Kirk.Hall at entrustdatacard.com
Thu Jan 11 18:18:04 UTC 2018

On our CABF teleconference this morning we discussed the policy issues around whether or not individuals should be able to participate in the Forum as Interested Parties.  In the past, we have allowed people to sign up as Interested Parties either as an individual, or on behalf of their employer organization.  Different interpretations of our current IPR Agreement as it applies to individual Interested Parties were discussed today, so I decided to go back to the documents themselves.

First, our Bylaws say this about Interested Parties:

3.2 Interested Parties
Any person or entity that wishes to participate in the Forum as an Interested Party may do so by providing their name, affiliation (optional), and contact information, and by agreeing to the IPR Agreement attached as Exhibit A (indicating agreement by manual signing or digitally signing the agreement).

Interested Parties may participate in Forum activities in the following ways:

(a) By becoming involved in Working Groups,
(b) By posting to the Public Mail List, and
(c) By participating in those portions of Forum Teleconferences and Forum Meetings to which they are invited by the Forum Chair relating to their areas of special expertise or the subject of their Working Group participation.

Interested Parties are required to comply with the provisions of the IPR Agreement and these Bylaws. Interested Parties may lose their status as Interested Parties by vote of the Members, in the Members' sole discretion.

This pretty clearly allows individuals to join as Interested Parties because their "affiliation" is optional.  Interested Parties sign the IPR Agreement (form attached) and must "comply" with the provisions of our IPR Agreement.  But this is only a Bylaw, and not part of a binding agreement with the individual who signs the IPR Agreement to be an Interested Party.

Unfortunately, our full IPRA and the one page agreement are not well suited to individuals.  The IPRA has the following definitions:

"Participant" means all entities and their Affiliates that are members of the CAB Forum.

"Affiliate" means an entity that directly or indirectly controls, is controlled by or is under common control with, a Participant. Control for the purposes of this Agreement shall mean direct or indirect beneficial ownership of more than fifty percent of the voting stock, or decision-making authority in the event that there is no voting stock, in an entity. The CAB Forum Board of Directions may, in its discretion, grant exclusions for related companies of CAB Forum Members which would technically fall within the "Affiliate" definition in situations where it can be shown that there is no intent to circumvent the licensing obligations of Section 5.

All the remaining provisions of the IPRA refer to "Participants" and "Affiliates" - which can only be "entities" and not individuals.  The term Interested Party in only contained in our Bylaws, and is not found in our IPRA or the one page form that Interested Parties sign.  The individual IPRA agreement that Forum Members and also Interested Parties sign also refers only to "Participants" - but the signature block only requires the listing of a Participant Entity Name "if entity", implying the form can be signed by individuals as well as well as entities.  The IPRA document also has the signer making various representations regarding "Affiliates", which an individual can't have.  Really confusing.

What different does it make that Participants and Affiliates are defined only as entities, and not also as individuals?  That means that individuals who sign up as Interested Parties probably have no duty to do anything required of Participants in the main IPRA, such as disclosing intellectual property they (or their employers) may have, and they are probably not bound by any Review Notice we send after approving a Ballot - they can probably remain silent, and they are not automatically granting a royalty-free license in any intellectual property they (or their employers) may have - as they do not fit the definition of a Participant under the IPRA.

It was noted on today's call that there are various representations and warranties in IPRA Section 6.4 that could offer some protections as to individuals who are Interested Parties.  Unfortunately, Sec. 6.4 again applies only to "Participants", who can only be entities and not individuals.  So we likely do not have the Section 6.4 protections from Interested Parties who participate as individuals as we would from Interested Parties who participate as entities.

Does this make a difference?  Or are we (as Forum Members) willing to accept this risk, which is probably fairly small?  I would appreciate input from Forum members.

It's possible we could solve this problem simply by changing the definition of Participants in our IPRA to also include "individuals", in addition to entities.  But that could apply to all "individuals" who participate (even on behalf of their employers), so we need to think this through carefully.

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