A little over 25 years ago, the Internet Society (ISOC) proposed that they assume responsibility for the DARPA Internet Protocol (IP) specifications Intellectual Property Rights (IPR) that were being evolved by the Internet Engineering Task Force (IETF) to facilitate their use by the mainstream network communication standards bodies and providers. Last week, the IETF, in an attempt to fend off alternative Internet Protocols emerging in the 5G ecosystem and create a standards monopoly, asserted that it “maintains copyright and change control for the IP specifications [, and] extensions or modifications to IETF technologies must be discussed with the IETF before any are worked on in other SDOs.” Really?

This article describes some of the relevant history and concerns with the IETF statement.

Origins

From an intellectual property perspective, the basic concept of an Internet Protocol as a means for effecting connectionless, datagram, packet communications among networks, quite clearly belongs to France’s Louis Pouzin who implemented the first true Internet known as CYCLADES using a protocol known as CIGALE. The project was launched in 1971. It is not apparent that either Pouzin or the sponsoring organization, Institut de Recherche d’lnformatique et d’Automatique (IRIA) asserted any intellectual property ownership - and published the project details at NATO and other meetings.

Pouzin’s ground-breaking work subsequently resulted in multiple similar Internet initiatives undertaken by government agencies and corporate research facilities. In the U.S., the largest scale Internet initiative was undertaken in 1976 by the National Communications System (NCS)—which existed as an interagency organization among 23 different Federal agencies under the National Security Council. The NCS subsequently devoted considerable resources among largely private-sector contractors based on Pouzin’s work that was pursued through multiple committees in the CCITT (now ITU-T) and the ISO/IEC JTC 1 standards bodies, and underscored by the NCS June 1980 Report committing the Federal government to the OSI Internet Protocol activities. All of this Internet Protocol work occurred pursuant to U.S. government efforts in collaboration with government partners in other countries. It is not apparent that any of the parties attempted to assert any Intellectual Property rights in any of the work—which would have been foreclosed by the U.S. government engagement.

Pouzin’s work also resulted in an initiative being undertaken in the DOD DARPA organization to develop a similar protocol—which was published in 1974 as “a protocol for packet network intercommunication” and variously referred to as the “internet transmission control program,” “internetwork transmission protocol” and “host-to-host protocol.” In 1979, it was referred to as the Internet Message Protocol, and then in 1980 as the “DOD Standard Internet Protocol”. The specifications were developed by DARPA-funded researchers and published by another contractor - the Network Information Center of SRI International. A complete collection of the specifications was published in 1982 by SRI pursuant to a memorandum that year from the Undersecretary of Defense for Research and Engineering concerning “DOD Policy on Standardization of Host-to-Host Protocols for Data Communication Networks.” The standards were completely “open” for anyone to use, and no Intellectual Property claims were asserted.

In the early 1980s, a consortium of banks also created Internet Inc. to develop a proprietary Internet Protocol to operate a network among ATM machines. In July 1984, it offered in commerce, “communication services; namely, providing electronic data transmission services in the electronic banking field and retail marketing field” and asserted Intellectual Property right through its “Internet” trademark, which was registered with the U.S. Patent and Trademark Office. See, e.g., Serial 74374587.

In the mid-1980s, the NCS OSI Internet work was scaled significantly through several major initiatives. One was the engagement of National Security Agency and the formation of a major programme known as SDNS that was publicly announced in 1987 National Computer Security Conference. In 1986, some of the principal engineers in NCS created an international non-profit R&D consortium known as the Corporation for Open Systems (COS) to further develop the OSI Internet Protocol suites. The third initiative occurred by directive from the DOD to the Defense Communications Agency concerning Internet Protocols that became the basis for the Government OSI Profile (GOSIP) standards. No Intellectual Property claims were asserted, and all the Internet Protocol standards were open and freely available.

The GOSIP standards were subsequently introduced in the CCITT and ISO where the entire suite of standards including those for network security and identity management also exist today as open public standards free from any Intellectual Property claims. The OSI Internet Protocol was designated CLNP (Connectionless Network Protocol) and the widely referenced Internet Systems Handbook describes the characteristics and interoperability of the two Internet Protocol platforms.

Beginning in 1986, Al Gore introduced a series of bills that ultimately made $2.473 billion available for a National Research and Educational Network (NREN) and applications development, including the funding of standards activities—largely through the National Science Foundation (NSF). Portions of the money were used formalize the DARPA Internet standards activity, including an informal group of contributors that was named the Internet Engineering Task Force (IETF). It also published material from the NCS OSI Internet activity and attempted to advance all the diverse Internet Protocol suites. The specifications were facilitated by a permanent IETF secretariat contracted by the NSF to the Corporation for National Research Initiatives (CNRI) which had been active in the DARPA Internet development. It published the specifications free from any intellectual property claims.

The late 1980s into the 1990s witnessed a growing spread of Internets worldwide facilitated by two major international legal developments. The 1988 Melbourne Treaty enabled the availability of the underlying leased lines and treated extraterritorial cybersecurity concerns. The GATS Agreement in the WTO acted as a companion catalyst by opening up national markets globally.

For several years, the OSI and DARPA Internet Protocol platforms competed against each other, and an attempt to unify them in 1992 failed. Subsequent tipping the equation toward the DARPA Internet occurred through four significant developments. One was Gore’s election as Vice President and his overt championship of the DARPA Internet. A second consisted of the application developments and buildout of the NREN funded by the $2.473 billion, which make everything available for free and prompted new innovations by academic communities. The third was the creation of the Internet Society as a DARPA Internet promotional organization for the NREN by the principle parties involved in its development. The fourth was the massive monetization of DARPA Internet names and addresses to create a billion-dollar industry operating at 95% gross margins.

The 1990s – IETF IPR transitions

Because the IETF insisted on remaining a non-legal entity, the Internet Society Executive Director urged in 1994 that it attempt to acquire the Intellectual Property rights of the IETF specifications and serve as an IETF representative in order to further their acceptance by other standards development organizations and industry. The ITU, in particular, was convinced to provide free membership rights to ISOC—arguing the IETF standards were openly available without IPR claims, and could be readily used within the ITU-T and other SDOs.

Three years later, beginning in Oct 1997, the Internet Society began asserting Intellectual Property rights for the IETF specifications in the form of a Copyright Notice, but allowing them to remain fully open without IPR constraints, including derivative uses of the standards.

The year 1999 was especially notable in the Internet IPR history—marking the end of a nearly decade long legal battle with Internet, Inc., over use of the trademarked term “Internet” by the Internet Society and CNRI. In July 1999, in a proceeding before the U.S. Patent and Trademark Office Trial and Appeal Board, the parties reached a settlement on all versions of the use of the term “Internet.” They were obligated to recognize that the term was “generic,” and that it represented “a large and growing global information system… which is used by government agencies, communities, commercial organizations, professional associations and individuals for commercial and non-commercial services.” In other words, no one, including Internet Inc., ISOC, CNRI and their assigns, could claim the expressions “The Internet” or its variants as their property in the network communications marketplace.

The 2000s – Internet Protocol competition and political activism emerge

As the new century began, competitive Internet Protocol initiatives began to emerge in multiple established global standards bodies—especially to pursue the growing market for IP based voice telephony. The first was ETSI, which began efforts for a new standards group in 2001 known as TISPAN (Telecommunications and Internet converged Services and Protocols for Advanced Networking). It sought to evolve the Internet Protocol platform in innovative ways to meet the needs of public infrastructure and compliance obligations in the form of Next Generation Networks (NGN). Much of this work was also conveyed into the 3GPP work as IMS (IP Multimedia Subsystem).

The ITU-T also began a Next Generation Networks initiative in 2001in a dedicated Study Group 13 (Multi-protocol and IP-based networks and their internetworking) that sought to further Internet Protocol use in public infrastructures through an array of innovations among multiple ITU-T groups, including IP optical protocols.

In addition to the threat of Internet Protocol standards competition from other SDOs during this period, significant political activism emerged among many IETF and Internet Society participants that adversely affected its ability to be an inclusive standards body. This activism began in 1999 with its creation of the Raven List which, after 790 emotive messages over the next six months, gave rise to a policy banning work on supporting government law enforcement in May 2000. The scope of the ban was expanded in July 2003 to include a broad array of “security considerations.” In July 2004 the ban was expanded dramatically to include a broad array of political views on its mission that included fundamental network architecture views—declaring the IETF is not “value neutral.” A decade later, the IETF orthodoxy and bans on work deemed heretical were significantly expanded yet again to exclude an array of legal and network management requirements.

From an intellectual property perspective, the expansive IETF political activism significantly diminished the value of its Internet Protocol work. Without substantial changes to its Internet Protocol specifications - which the IETF itself was unwilling to undertake because it ran afoul of its bans—the specifications were often unusable in the marketplace. As a result, alternative IP specifications became increasingly pursued by industry in other standards bodies, although one effort was ironically undertaken once in Oct 2004 in the IETF itself for “information only” with many attendant expressions of disdain.

The IETF’s increasingly undertaking political adventures took a significant new turn in February 2004 with the Society asserting full IPR ownership over IETF specifications via a Copyright Statement at the end of every published document containing far-reaching restrictions on openness of in IETF standards via documents BCP 78 and BCP 79. Using this device enabled the IETF to attempt absolute change control authority on all Internet Protocol IPR - including work in other industry standards bodies. An additional potential control mechanism,—the “Procedures for Protocol Extensions and Variations” which implemented vague, onerous processes—was introduced in December 2006 and enabled a few IETF political activists or marketplace players to effectively impede anything that they disliked.

The IETF, in effect, demanded everyone, including other SDO’s, conform to the IETF’s Mission Statement, political views, and bans on non-conforming Internet Protocols or derivatives. The result was a means for potential exclusive control over the entire global marketplace of Internet Protocols and implementations. The attempts to exercise this marketplace control began through outbound IPR related liaisons to other SDOs which increased dramatically after 2006 from a mere handful in preceding years to 34 in 2007, 75 in 2009, 89 in 2011. The IETF over the past twenty years directed an incredible 243 liaison statements to the ITU-T’s Study Group 15 concerning its work on transport and access protocols.

One of the more notable examples of this marketplace control of Internet Protocols by the IETF ensued in this timeframe. The late legendary Internet leader Larry Roberts began pursuing a new secure and more resilient Internet Protocol that was called the IP Flow State Aware (FSA) protocol and supported by DOD funding. He pursued adoption of the protocol originally conceived by France Telecom together with BT’s Martlesham Labs in the ITU-T beginning in 2006—as he had successfully done more than thirty years earlier for the X.25 packet protocol to create the global market for packet data networks. The new Internet Protocol was eventually published as Recs. ITU-T Q.3313, Signalling protocols and procedures relating to flow state aware QoS control in a bounded subnetwork of a next-generation network, and ITU-T Y.2121, Requirements for the support of flow-state-aware transport technology in NGN.

In October 2006, the IETF began asserting control by stating that Roberts’ new Internet Protocol constituted “significant and fundamental changes to the Internet architecture and several of its core protocols and mechanisms,” and that the work represented “extensions to IETF protocols proposed outside the IETF,” that the new approval procedure was applicable, and recommended that the work be brought to the IETF. The dialogue progressed with further IETF firmness. After nearly two years, in May 2008, the IETF became highly insistent on pursuing a plethora of IETF actions because of “a very high probability to be transmitted [sic] over the general Internet [and] the development of such functionality, therefore, must not have any negative impact on existing end-host and network infrastructure protocols.” After ten liaison statements going back and forth for three more years, in June 2011, the ITU-T told the IETF leadership that matter was closed, and the new Internet Protocol standards would be adopted. An unsuccessful attempt to obtain a “code point” for the protocol from the IETF was also made—which is a related mechanism for effecting control in the Internet Protocol marketplace. A few days before his passing in December 2018, Dr. Roberts was anticipating that finally, his new FSA Internet Protocol could be used in 5G infrastructure virtual instantiations.

The new IPR practices also led in 2014 to a high profile Federal antitrust case being instituted in U.S. District Court naming the IETF and several of its major corporate participants as defendants. The two plaintiffs in the case alleged wrongdoing in the acquisition and disposition of their IPR through the IETF. After more than 200 pleadings and two years of litigation - in which the plaintiffs acting pro se faced 25 skilled attorneys - the legal complaint was dismissed on a technicality without ever reaching the merits. The Plaintiff described the IETF as “a Rogue State” as well as the anticompetitive effects of BCP 78 and BCP 79, noting that

“All users of TCP/IP networking are tied to IETF standards and their copyright and use provisions. The average IETF standard is estimated at a four million to ten million US Dollar cost-to-obtain and an untold value as part of marketing a network based service or selling components for a new feature set or network service based therein. This means the basic value of the Standard is also between four million and ten million dollars as well.”

The 2020s

A revolution in network communication technology is underway today that is centered on 5G virtualisation platforms and specifications being developed by 3GPP and its many partner SDOs. That revolution relies on new 3GPP standards that enable the instantiation of on-demand virtual architectures and network/transport protocols. Most SDOs in the networking field today are attempting to be responsive to the resulting market demand by exploring and specifying new Internet Protocols - together with Focus Groups, professional community conferences and private sector R&D efforts. There are also thousands of related published scholarly papers and patents.

The response of the IETF to these developments is dismaying—asserting that its own work and legacy Internet Protocol standards alone are somehow sufficient—as conveyed in its recent liaison document. More disturbing, however, is the IETF’s arrogant and untenable assertion that has exclusive control of “Internet Protocols” and that “all SDO’s” must comply with its institutional dictates based on hollow IPR claims.

There is no trademark of the term Internet in the marketplace, and the ISOC/IETF are explicitly precluded from asserting it. A review of the IPR history of Internet Protocols clearly shows the existence of many Internets and Internet Protocols over nearly five decades since Pouzin articulated the first “original expression” of the platform and protocol. The provenance of all the specifications and implementations along the way relied on hundreds of people and organizations who contributed their intellectual property to them. It was the ultimate global team fusion of creative expression among people and projects captured in exquisite detail in a famous 1992 Internet Protocol poster. Whatever IPR exists in any SDO Internet Protocol specifications is so generic, public, diluted and diffuse that it would be virtually impossible to sort out the components and sources of any copyright “original expression.”

Internet Protocols and implementations have been marked by their diversity, competition, and evolution based on open sharing of IPR. The IETF does good work, but so do other SDOs. Furthermore, not every company, organization and country in the world joins in the IETF’s socio-political views or mission, nor wishes to abide by its torturous and often contentious processes that generally lack transparency and favour those who engage there. The appalling treatment of Larry Roberts and his FSA Internet Protocol remains a warning to innovators to be wary of engaging with the IETF.

The IETF’s embrace of its socio-political missions created an intolerant monoculture of people with self-similar views that diminishes its relevance as a functional SDO in the global standards marketplace. No one organization today gets to declare that they are the Internet Synod determining the tenets of faith of the one true Internet or Internet Protocol and that all other SDOs must kneel before it. IPR law doesn’t support it; and competition law prevents it.

Unfettered, robust competition in the development of new Internet Protocols, services, security, and implementations will be essential to the success of standards bodies, enterprise, and nations. It is the direction that everyone needs to head.