On Sep 23, 2009, at 2:23 PM, Eric Rescorla wrote:
At Wed, 23 Sep 2009 11:17:04 -0700 (PDT),
Ole Jacobsen wrote:
On Wed, 23 Sep 2009, Eric Rescorla wrote:
So, this isn't really that useful context for the rest of the
paragraph. To take the example of encryption, I think people
were arguing that it was a topic "regarding human rights".
With that said, it's not clear to me that saying "China's policy
of censoring the Internet sucks" isn't defamation.
I would say that this DOES border on defamation, BUT I am at a loss
to understand why such a statement would be a required part of our
technical discussion. The statement is an opinion about a topic which
there is a lot more that can be said, but like the baby said "this
isn't the venue." (Let's just say that it isn't well understood in
the west). "X policy sucks" sound like politics and not technology
particularly if X is a country.
Sure, but I've heard plenty of stuff like this said in the IETF,
indeed in this very discussion. So, while you may not think
that those are appropriate statements, ISTM that we do in fact
have a situation in which common IETF speech potentially runs
afoul of this restriction.
If on the other hand you were to say: "I am upset about the way
provider Y in country X does aggregation in BGP because this degrades
performance of..." you would have little to worry about beyond
perhaps
a technical argument.
I'm not a lawyer, but my understanding is that this is in fact
defamatory
speech within the legal sense that prevails in the US. (That doesn't
make it illegal in the US. First Amendment, etc.)
I'll rephrase my question then:
Is your claim that you believe that the contract would not be
found in a court of law to cover the described activities?
If by "activities" you mean "technical discussions" that are a normal
part of any IETF meeting, then yes.
In that case, can you please post your analysis of the other ORed
parts
of the original clause that supports that conclusion?
Dear Eric;
As far as I know, you are not a lawyer (please correct me if I am
wrong). I am not a lawyer. Ole is not a lawyer. What use is any of us
doing this analysis ? I might as well ask the IETF Counsel to produce
a technical analysis of LISP-ALT. I don't think that this will get us
anywhere.
Furthermore, my experience with lawyers is that they will rarely, if
ever, in any legal system provide you with guarantees. They can point
out problems, but you have to use judgement to decide what to do.
A long time ago, I learned that the letter of legal agreements is in
many cases less important than the intent of the parties. There are
always issues in any agreement, and you can always "war-game" possible
breakdowns. The real question is, is there intent to do what is agreed
upon (and, do you both agree what that is) ? I think there is intent,
in inviting us to China, for us to have a good and productive meeting
in China. I think that all parties (us, the host, the Hotel, and the
government) want this result.
My judgement is therefore that we would not be found in breach of the
contract by the hotel for any activities I have seen in 10 years of
IETFs. That is not a legal analysis, but it is my considered opinion,
based on all of the facts available to me, and my reading of the
intent of the parties. Others, such as Ole, with much more experience
with the PRC than I do have come to the same conclusion.
Everyone is of course free to come their own conclusions, but this is
how I came to mine.
Regards
Marshall
-Ekr
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