Subject: Re: in support of axfr-clarify

From: Dean Anderson <[email-masked]>
Date: Sun, 1 Dec 2002 20:01:15 -0500 (EST)

On Sat, 30 Nov 2002, Danny Mayer wrote:

> The cheapest thing would be to do nothing. It is, however, not the right
> thing to do. Figure out the right thing first and then you can take a
> realistic view of the costs.

AXFR clearly needs clarification. The cheapest thing to do is clarify
AXFR so as to minimize or eliminate changes to existing software, and to
minimize the introduction of interoperability problems.

The "right" thing is to minimize costs, and not introduce unnecessary
changes in AXFR. No one has shown yet that the changes proposed are in
fact necessary.  That is, they haven't shown that one can't implment IXFR
with a more common implemented (but clarified) version of AXFR.

> >"Right" might not be the same as "Common". But changes from common aren't
> >"clarifications".  "Right" depends on your point of view.
>
> It didn't mention the word common. I said right. Right is very rarely objective
> anyway, so what's your point?

That is my point: You want to do the "right" thing from your point of
view.  Others have different points of view. But I think the most common
point of view of "right", is to minimize the impact and costs, and avoid
unnecessary changes.

> >I think that AXFR can be nailed down without severely impacting existing
> >implementations, and I expect that IXFR can be made to work with the
> >existing (and clarified) AXFR.
>
> That's what the document is trying to do. So far nothing that you said
> discusses the document, just how "unfair" it is to djbdns.

The current clarify document requires unnecessary changes, and imposes
unnecessary costs, and interoperability problems in the field.

I would be willing to work on an alternative clarify document.

* I've re-ordered your email to separate some of the less relevant
material and put it at the end.

> Of course, it is relevant to point out that if BIND were a commercial
> product it would cost more, in real money, to have it changed than for
> djbdns to be changed.

Bind made incompatible and non-standard changes. Its supporters are now
trying to impose those changes on the rest of the community under the
dishonest description of a "clarification".

Further, I think most sites are still running some version of Bind 8. For
very little cost, ISC can remove the non-standard changes. The cost
expended so far by Bind will have to be considered "research"  which
didn't produce anything useful.  C'est la Vie.

> Since djbdns is apparently a non-commercial product and noone is
> employed to make changes or fixes to it, it costs nothing to change and
> we have therefore chosen the cheapest alternative.

Nonsense.  Deployment costs imposed on the user community are part of the
costs to be considered.  And I'm willing to concede for sake of argument
(though perhaps DJB does not, and I have no authority to speak for him),
that djbdns is also a commercial product, as are other implementations.

The users of Bind 8 will also be forced to upgrade.  As will users of
Microsoft, etc.  Many operating system vendors ship Bind 8 variants. They
(and their users) will be forced to upgrade.  In the meantime, unnecessary
interoperability problems will persist.

This is a very expensive operation, and it is unnecessarilly expensive.

* What follows is of little relevance to namedroppers, except to support
the contention that Bind is actually commercial, and the subsequent
conclusion that its supporters have a commercially and competively vested
interest in getting these AXFR changes through.  This will be my last post
on this sub-topic.

> Assuming that you are in the US, you know nothing about UCC. I suggest
> an introductory course in the Uniform Commercial Code before you discuss
> this so knowledgably. Please point me to a site that is selling BIND on
> behalf of ISC.

Sigh.  After being President of the LPF since 1993, and having been to the
Supreme Court on copyright issues, and having worked on intellectual
property issues for a long time, and having been informally educated by
prominent lawyers and law professors on certain aspects of intellectual
property and anti-trust law, I am still surprised that people still seem
to think I know nothing about these issues. However, I'm not a lawyer and
of course, I don't know everything. But I know some things.

Indeed, I am reasonably familiar with UCC and UCC2. I have a copy of the
UCC on my desk.  As well as a Blacks law dictionary. And I have a copy of
"Intellectual Property. Patents, Trademarks, and Copyright in a Nutshell"
by Miller and Davis. (This is a West's Law book for Lawyers, not an
O'Reilly book)

What you seem not to be able to grasp is that there is a difference
between being commercial and being profitable.  One doesn't have to charge
money in order for something to be commercial.

While exchange of money may more clearly make something commercial, it is
not a requirement for something to be commercial. From Blacks Law
Dictionary: Commercial: "Relates to or is connected with trade and traffic
or commerce in general."  Commerce: (much longer): "The exchange of goods,
productions, or property of any kind"

You can see the contents of 37 CFR 2.33 which governs trademark practice
by the PTO by going to http://www.law.cornell.edu and clicking on
"Constitutions and Codes, then "Code of Federal Regulations, then Chapter
1, Part 2, then 2.33. You can see the underlying law by clicking on US
Code, then going to Title 15, Chapter 22, Subchapter 1, Section 1051. Look
at 1051(b)(3)(B).

Bind is commercial because in the trademarking of Bind, ISC declared its
_intent_ to be commercial, in order to have a well defined place in the
marketplace with a protected name.  These are public statements that
cannot be withdrawn. Bind is therefore inextricably involved in trade,
even if its trademark fails because of prior use.

This could go farther afield and get into contracts but for one thing: I
do not need to assert that Bind has actually been involved in commerce.
ISC has demonstrated its _intent_ for Bind to be commercial.

But since you seem so misinformed on the UCC, I will take up some more
space in this last post on this subtopic to explain things to you:

'Actual use' in commerce would certainly be demonstrated by a contract. A
contract does not need to be written and signed if it is less than $500,
to fullfill the UCC Statute of Frauds requirement. A contract also needs a
valid consideration, in order to be binding.  That consideration need not
be for money, provided it is a bargain, and involves a detriment to the
parties.  (See Contracts, by Emanuel Law Outlines, chapter 3).

The ISC Bind license is a bargain involving the exchange of a detriment
between the users of Bind and ISC for the rights to use Bind software
produced by ISC.  The users get to use the software, and ISC obtains
acceptance of liability disclaimers, etc, which would otherwise be a
detriment. The User gives up his rights to sue ISC for certain things, and
agrees to give credit to ISC, amoung other things.  This creates a valid
consideration, which then makes the contact binding and subject to the
UCC. So you see, one does not have to necessarilly accept money for
contracts to be binding, and for something to be commercial.

		--Dean

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---

From: [email-masked]
Date: Mon, 02 Dec 2002 14:13:09 +1100

> minimize the introduction of interoperability problems.

	Clarification should always be, firstly, to get the protocol
	to do what it is attempting to do.  After that if there are
	multiple ways to do something you look at the implementation
	costs.
 
> changes in AXFR.

	No. The right thing here is to ensure that AXFR transfers the zone
	to all servers in the AXFR transfer graph.

> No one has shown yet that the changes proposed are in
 
	It's quite easy to demonstrate the need for these changes and
	it has been done several times.

	As for IXFR over broken AXFR.  What is the correct behaviour of a
	IXFR client when it receives a delta which says to remove a record
	that doesn't exist due to merging of zone contents?

	Does it abort the IXFR and request a AXFR?
	Does it apply what it can and then transmit the changes to its
	copy of the zone.

	These questions don't even come up if the servers don't merge
	content from different sources.

> dishonest description of a "clarification".

	Please demonstate which changes are incompatible and
	non-standard.  

> interoperability problems will persist.

	The operating system vendors are already shifting to BIND 9.  It's
	management is backwards compatible with BIND 8.

	Note there are no *forced* upgrades happening here.  The pre-clarify
	servers will interoperate with the post-clarify servers.  However
	the post-clarify servers can be used in configurations where most
	of the pre-clarify servers (those that merge data) can't.

	Mark
 
--
Mark Andrews, Internet Software Consortium
1 Seymour St., Dundas Valley, NSW 2117, Australia
PHONE: +61 2 9871 4742                 INTERNET: [email-masked]

---

From: "Michael Froomkin - U.Miami School of Law" <[email-masked]>
Date: Sun, 1 Dec 2002 23:54:16 -0500 (EST)

Oh dear. Trademarks. UCC.  May a law professor step in?  Maybe this way we
can get back to the things that matter in this thread -- like what to do
about a 'clarification' that I gather breaks some substantial quantity of
deployed software...

On Sat, 30 Nov 2002, Danny Mayer introduced the UCC to this thread as
follows:

[...]
> 
> > > >An applicant for a trademark must declare that he is using, or intends to
> > > >use, the mark in commerce. See 37 C.F.R. 2.33.
> > >
> > > Your statement does not include the word sell, for profit or otherwise.

"in commerce" is different from "commercial" -- it pretty much means any
course of conduct of repeated and continuous selling, trading, or
shipping.

Note well: "Sell" is not required; you can trademark a thing you will give
away. See Planetary Motion, Inc. v. Techsplosion, Inc., 261 F.3d 1188
(11th cir. 2001), http://laws.findlaw.com/11th/0010872opn.html, which
holds that an owner's distribution of software for end-users over
Internet, even absent any sales thereof, was sufficient to establish
trademark rights in software's name.

> > > There are many non-profits in the US that have trademarks. You also

Yes.  some even sell things; some don't.  

> > > seem to be restricting yourself to the US. Are you saying that ISC
> > > cannot trademark the name whereever they please?
> >
> >This says nothing of the sort.
> >
> >Non-profit is not the same as "non-commercial". The ISC uses names in
> >commerce: it seeks donations, owns property, hires employees, and (if I
> >recall, either offers either support or directions to Vixies consulting
> >operations), and promotes the Bind, Inn, and DCHPD packages.
> >
> >ISC claims (rightly or wrongly) a trademark on Bind. That indicates that
> >it intends to use "Bind"  in commerce.  Whether it makes a profit or not
> >is irrelevant.  Bind is a product of ISC.
> >
> >Whether that trademark claim is invalid (by prior public domain use by
> >UCB), is irrelevant.  Once ISC makes a declaration of a trademark, it
> >can't later say the "product" is not commercial.
> 

OK.  Listen up: <rant> THIS HAS NOTHING TO DO WITH THE UCC</rant>.  This
is a question of Trademark law pure and simple.  And under trademark law,
having a trademark tells you nothing about whether the product is
"commercial" -- it only says it was alleged to be "used in commerce".

> this so knowledgably. Please point me to a site that is selling BIND on

See above.  UCC is simply irrelevant.  

> Of course, it is relevant to point out that if BIND were a commercial product
> it would cost more, in real money, to have it changed than for djbdns to be
> changed. Since djbdns is apparently a non-commercial product and noone
> is employed to make changes or fixes to it, it costs nothing to change and

This is absurd.  The mind boggles.  If this were true there would be no
commercial software at all since it's always the low cost producer.

-- 
		Please visit http://www.icannwatch.org
A. Michael Froomkin   |    Professor of Law    |   [email-masked]
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
                        -->It's warm here.<--

---

From: Danny Mayer <[email-masked]>
Date: Mon, 02 Dec 2002 21:46:36 -0500

At 11:54 PM 12/1/02, Michael Froomkin - U.Miami School of Law wrote:
[Note: the rest of this has been taken offline - pdm]
>Maybe this way we

No, nothing breaks per se. The disagreement, as I understand it, is
which records get transferred to the requestor during an AXFR request
that represents the whole zone. The subplot is what response should
be given to a requestor who is not authorized to transfer the zone.

> product

I'm not sure how your response relates to my comment. You are, for
example, apparently using Pine as your mail client which is a free piece
of software. However, most people, especially in companies use Microsoft's
Outlook, which in conjunction with Microsoft Exchange, is an enormous
cost, relatively speaking, for most companies. Microsoft's Windows O/S
which can cost anything from $99 to $199 or more is still the most popular
platform even though there are many different free versions of Unix, like
FreeBSD and Linux. The cost to Microsoft to fix a bug or close a security
hole and then distribute the fix is rather large, but they do it anyway. Bugs
or security holes in say Linux also get fixed and distributed by the various
Linux supporting organizations like Red Hat, but their visibility is much lower
and I suspect, but don't know, that their associated costs are much lower.

To sum this up, people buy and use according to their own perceptions,
otherwise people would be buying AMD's chips rather than Intel's since
their prices are lower. BIND has an enormous installed base and admins
are slow to install bug fixes for security holes, never mind upgrades that
fix protocol errors or changes. djbdns has a much smaller base and therefore
a smaller number of admins to deal with fixes and changes. djb recommends
using resync rather than AXFR, so I suspect that use of AXFR by users
of djbdns is a very small number relatively speaking. So, once a change
is made how many systems are really impacted, especially given that
good admins regularly upgrade the software on their systems anyway?

Danny

---

From: Kevin Darcy <[email-masked]>
Date: Tue, 03 Dec 2002 10:49:35 -0500

Look, people, I'm sure you're all dying to impress us with your respective stores
of knowledge about various aspects of the law, but there's no reason for this
discussion to disappear down a rathole of legalism. When DJB uses the term
"BIND company employee" his plain implication is to assign some sort of ulterior
profit motive to the referenced individual. It's basically just a childish
_ad_hominem_, and a ludicrous one at that, since even if BIND is in some limited,
technical legal context "commercial", "in commerce", "a commercial product" or
whatever, the simple fact is that BIND (like djbdns) is given away free, and thus
there is no discernible, provable profit motive involved. Or, if DJB has such
proof, let him present it. Merely waving legalisms around doesn't prove intent or
motive, or detract from anyone's arguments for or against any particular IETF
document.

- Kevin