Re: Copyright status of early Internet RFCs

John Levine asked on the CNI-COPYRIGHT list:
> A friend of mine wants to republish some early documents in the
> Arpanet/Internet RFC series in a book. The ones he is interested in
> are all from before 1976, and none contain any copyright notice. (The
> latter is easily verified by searching the online versions for the
> strings "copyright" and "(c)".) They're by many different authors,
> some were produced under DARPA contracts, but I don't think all of
> them were. There is a tradition that reproduction is permitted, but I
> can't find that codified anywhere. The guy who edited the series at
> the time has died, so we can't ask him. Later editors of the RFC
> series have apparently made retroactive claims about earlier
> documents, but I get the feeling it's people who know more about the
> IP protocol than about IP law playing Junior Lawyer.
>
> My understanding is that if something was published in the U.S.
> before 1976 without a notice, it's P.D. Is there any reason to
> think he can't just go ahead and republish?

Joseph Pietro Riolo responded:
> Not just before 1976 but also before March 1, 1989.
> However, don't expect Internet Engineering Task Force
> (IETF) to be honest and generous.
>
> Moreover, almost all RFC's have very, very, very
> thin copyright because of Merger Doctrine and/or
> Section 102(b).

Lawrence Rosen now responds:
The IETF is trying very hard to be honest and generous. I'm participating in discussions on their IPR Working Group and I know that they are devoting much energy to making their copyright procedures (in-licensing and out-licensing) more rigorous, transparent and fair.

I am, however, in strong agreement with Mr. Riolo's second point. It is about time the copyright community stopped saying that "anything written is copyrighted" and remember that-at least in technical fields-section 102(b) is co-equal with 102(a): The Merger Doctrine survives in U.S. copyright law.

Some technical works can be freely copied regardless of copyright claims; licenses aren't always needed. While some might argue differently in the IETF IPR Working Group about the copyright status of RFCs, I can't imagine there's anyone out there actually ready (and with standing!) to start a copyright infringement lawsuit over any of those old RFCs. Just in case someone in IETF wants to complain, though, I'm cross-posting this to the IETF IPR WG. Will your friend properly attribute and credit the work to IETF? That's only fair, and it's a reasonable expectation in all scholarly work.

/Larry

Lawrence Rosen
Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com) Stanford University, Lecturer in Law
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242 * fax: 707-485-1243
Author of "Open Source Licensing: Software Freedom and

                Intellectual Property Law" (Prentice Hall 2004)