Intellectual Property in Network Design

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1

Hi all,

I have two perspectives I am trying to address with regard to network
design and intellectual property.

1) The business who does the design - what are their rights?

2) The customer who asked for the rights from a consultant

My personal thoughts are conflicting:

- You create networks with standard protocols, configurations, etc... so it
shouldn't be IP
- But you can design things in interesting ways, with experience, skill,
creativity.. maybe that should be IP?
- But artwork are created with colors, paintbrushes, canvas... but the
result is IP
- A photographer takes a photo - it is IP
- But how are 'how you do your Cisco/Juniper configs' possibly IP?
- If I design a network one way for a customer and they want 'IP', does
that mean I can't ever design a network like that again? What?

I've seen a few telcos say that they own the IP related to the network
design of their customers they deploy... which based on the above... feels
uncomfortable...

I'm really conflicted on this and wondering if anyone else has come across
this situation. Perhaps any legal cases/precedent (note, I am not looking
for legal advice :slight_smile:

If this email isn't appropriate for the list... sorry, and please feel free
to respond off-line.

...Skeeve

*Skeeve Stevens - Founder & Chief Network Architect*
eintellego Networks Pty Ltd
Email: skeeve@eintellegonetworks.com ; Web: eintellegonetworks.com

Phone: 1300 239 038 ; Cell +61 (0)414 753 383 ; Skype: skeeve

Facebook: eintellegonetworks <http://facebook.com/eintellegonetworks> ;
Twitter: eintellego <https://twitter.com/eintellego>

LinkedIn: /in/skeeve <http://linkedin.com/in/skeeve> ; Expert360: Profile
<https://expert360.com/profile/d54a9>

The Experts Who The Experts Call
Juniper - Cisco - Cumulus Linux - Cloud - Consulting - IPv4 Brokering

2

I include a "no intellectual property ownership is transferred between the Parties" clause in just about everything we do. Doesn't demand that any of the questions you raise be answered, but shuts the door to problems pretty firmly.

                -Bill

3

creative commons

4

Actually Bill... I have two (conflicting) perspectives as I said.... but to
clarify:

1) A customer asked 'Can you make sure we have the IP for the network
design' which I was wondering if it is even technically possible....

2) If I design some amazing solutions... am I able to claim IP.

My gut feeling is no to both of them... because, if it happen (VERY LIKELY)
that somewhere, someone designs an network to the exact same specifications
- to the config line - Would that mean they have infringed on my IP
unknowingly, and how would I even know if I was unique in the first
instance?

What I am really looking for is some working, experience, precedence that
backs up the view that IP on network design is actually not possible...
which is my gut feeling.

In the past I have always stated that, and it's never been challenged...
and nor is it in this case... but, it is an important think I guess many of
us should probably be aware of where we stand.

...Skeeve

*Skeeve Stevens - Founder & Chief Network Architect*
eintellego Networks Pty Ltd
Email: skeeve@eintellegonetworks.com ; Web: eintellegonetworks.com

Phone: 1300 239 038 ; Cell +61 (0)414 753 383 ; Skype: skeeve

Facebook: eintellegonetworks <http://facebook.com/eintellegonetworks> ;
Twitter: eintellego <https://twitter.com/eintellego>

LinkedIn: /in/skeeve <http://linkedin.com/in/skeeve> ; Expert360: Profile
<https://expert360.com/profile/d54a9>

The Experts Who The Experts Call
Juniper - Cisco - Cumulus Linux - Cloud - Consulting - IPv4 Brokering

5

Hey Randy,

I'm keen to see how you might think that fits in to the context?

...Skeeve

*Skeeve Stevens - Founder & Chief Network Architect*
eintellego Networks Pty Ltd
Email: skeeve@eintellegonetworks.com ; Web: eintellegonetworks.com

Phone: 1300 239 038 ; Cell +61 (0)414 753 383 ; Skype: skeeve

Facebook: eintellegonetworks <http://facebook.com/eintellegonetworks> ;
Twitter: eintellego <https://twitter.com/eintellego>

LinkedIn: /in/skeeve <http://linkedin.com/in/skeeve> ; Expert360: Profile
<https://expert360.com/profile/d54a9>

The Experts Who The Experts Call
Juniper - Cisco - Cumulus Linux - Cloud - Consulting - IPv4 Brokering

6

I'm keen to see how you might think that fits in to the context?

creative commons

i prefer to be paid for being able to think, not for what i once
thought. creative commons suits my needs for network designs.

randy

7

I've designed some pretty unique and profitable features using tech.
(not necessarily open standards, but available to anyone who buys the
hardware) because I was able to interpret the feature better than the
competition, and make it do things it wasn't originally intended for.

Now, when I leave that company and repeat the same at new company (out
of sheer fun, perhaps), can the previous company claim IP, or would I be
the one to claim IP since I was the one who thought up the idea in the
first place?

Configurations between operators are all the same. How you put them
together is what can set you apart in your market. I suppose your
question is whether "how you put them together that sets up apart from
the competition" is worth the IP debate.

Mark.

8

And to compound the (perceived) problem, any IP embedded in a network
design is almost always "prior art". It's not a rabbit-hole worth going
down - I agree with Randy,

  imb

9

Agree.

Mark.

10

And to compound the (perceived) problem, any IP embedded in a network
design is almost always "prior art". It's not a rabbit-hole worth going
down - I agree with Randy,

i have four lives.

iij research, dev, ... our goal is to publish our ideas there are
coworkers doing very innovative design for datacenter stuff. we do not
patent, ...

open source routing security design, specs, software, ... bsd and cc
licensed.

an open source crypto design and code project. bsd and cc licensed.

and the last is giving away as much networking design and operational
knowledge as i can to engineers in the developing world.

steal this book!

randy

11

Exactly my thoughts Mark....

...Skeeve

*Skeeve Stevens - Founder & Chief Network Architect*
eintellego Networks Pty Ltd
Email: skeeve@eintellegonetworks.com ; Web: eintellegonetworks.com

Phone: 1300 239 038 ; Cell +61 (0)414 753 383 ; Skype: skeeve

Facebook: eintellegonetworks <http://facebook.com/eintellegonetworks> ;
Twitter: eintellego <https://twitter.com/eintellego>

LinkedIn: /in/skeeve <http://linkedin.com/in/skeeve> ; Expert360: Profile
<https://expert360.com/profile/d54a9>

The Experts Who The Experts Call
Juniper - Cisco - Cumulus Linux - Cloud - Consulting - IPv4 Brokering

12

I like this take on it... thanks David.

...Skeeve

*Skeeve Stevens - Founder & Chief Network Architect*
eintellego Networks Pty Ltd
Email: skeeve@eintellegonetworks.com ; Web: eintellegonetworks.com

Phone: 1300 239 038 ; Cell +61 (0)414 753 383 ; Skype: skeeve

Facebook: eintellegonetworks <http://facebook.com/eintellegonetworks> ;
Twitter: eintellego <https://twitter.com/eintellego>

LinkedIn: /in/skeeve <http://linkedin.com/in/skeeve> ; Expert360: Profile
<https://expert360.com/profile/d54a9>

The Experts Who The Experts Call
Juniper - Cisco - Cumulus Linux - Cloud - Consulting - IPv4 Brokering

13

Actually Bill... I have two (conflicting) perspectives as I said.... but to
clarify:

1) A customer asked 'Can you make sure we have the IP for the network
design' which I was wondering if it is even technically possible....

Hi Skeeve,

IANAL but I play one when I can get away with it.

This is usually covered as, "Contractor agrees to provide Customer
with all documents, diagrams, software or other materials produced in
the course of the contract. Contractor shall upon request assign all
ownership of such materials to Customer. Contractor shall retain no
copies of said material following termination of the contract."

So yes, it's technically feasible.

2) If I design some amazing solutions... am I able to claim IP.

If it's copyrightable (a "solution" may be), then as a contractor (not
an employee) the copyright vests in you. If the contract states that
you agree to transfer it to the customer then you breach the contract
if you don't.

If the contract says the copyrights are theirs then at least that part
of the contract is probably void. Barring W2 employment copyrights
nearly always vest in the individual who first put them in to a
tangible form. There are explicit and narrow exceptions in the law.
Preface of a book. That sort of thing. It's unlikely you'll run afoul
of any of them.

Lawyers get this wrong shockingly often. IP doesn't vest in the
customer and can't be transferred until it exists. The creator is a W2
employee. The contractor agrees to transfer it following creation.
Just about everything else is void.

If the contract doesn't say one way or another then the lawyer who
wrote it was asleep at the wheel.

However... the techniques used to produce the solution usually
classify as ideas. You may be bound under non-disclosure terms to not
share ideas produced for the customer within the scope of the
customer's system but ideas are never property. You can't own them and
neither can the customer.

Regards,
Bill Herrin

14

The extent to which this is technically feasible and how one must go about it actually varies greatly from jurisdiction to jurisdiction.

Something well worth considering given the number of jurisdictions already mentioned in the current discussion.

There are a number of possible concerns that the customer in question may be attempting to solve with their request. The first step is to identify which concern(s) they want to address.

  1. Do they want to make sure that they have sufficient rights in
    the design that they can replicate/modify/otherwise use it
    without further compensating you?

  2. Do they want to make sure that you surrender your rights in
    the design so that you are not able to provide an identical
    solution to another customer in the future and/or that you do
    not use their design as an example or case study for your
    marketing purposes?

  3. Do they not really have a concern, but someone told them
    that it was important to ask this question?

  4. Do they want to make sure this treated as a “work for hire”
    with all the legal implications that caries?

There are probably others that I am not thinking of at the moment.

Owen

15

Hi Skeeve,

In a sense, you are an artist as network architecture is an art in itself.
It involves interaction with time, processes, people and things or an
intersection between all.

As an architect, you analyze customer needs and design a solution using
your creative ideas to address their business driven needs today. In some
ways, this is easier because creating a
business centric network provides you some parameters to design within.
You might mix and match technologies that will suite one business better
than the other but it's your creative ideas. It's not secrets of their
trade that you replicate or takeaway. You are master of the trade and you
design a solution that works best for them.

While some design principles for application service provider, enterprise,
carrier or ISP have similarities, no two network is the same.

If you don't claim IP on the design or publish company names you've done
the designs for, under what jurisdiction can they claim what you designed
is their IP? What if their requirement changes in 6 months from now?

If a architect designs a road system in a particular way, does it mean
he/she can't design another road again because of IP issue?

I would tend to disagree.

It may not answer your questions but I hope it provides some content to
support your case :slight_smile:

Regards,
Ahad

16

Hi Skeeve,

In a sense, you are an artist as network architecture is an art in itself.
It involves interaction with time, processes, people and things or an
intersection between all.

And to that, artwork would fall under copyright *Sarcasm*? +1 on art form! More like an abstract martial art really. PacketFu!

As an architect, you analyze customer needs and design a solution using
your creative ideas to address their business driven needs today. In some
ways, this is easier because creating a

If you are a consultant wouldn’t that fall under work for hire? If you are an employee? Check the contract, I am betting there is a clause for IP ownership!

business centric network provides you some parameters to design within.
You might mix and match technologies that will suite one business better
than the other but it's your creative ideas. It's not secrets of their
trade that you replicate or takeaway. You are master of the trade and you
design a solution that works best for them.

While some design principles for application service provider, enterprise,
carrier or ISP have similarities, no two network is the same.

If you don't claim IP on the design or publish company names you've done
the designs for, under what jurisdiction can they claim what you designed
is their IP? What if their requirement changes in 6 months from now?

If a architect designs a road system in a particular way, does it mean
he/she can't design another road again because of IP issue?

I would tend to disagree.

+1

17

This Friday's off-topic post for NANOG:

Doing art is creative practice directed to uncover something new and
not pre-conceived. Successful acts of art produce something that not
only wasn't there before but that nobody thought could be there. The
art is the change in thinking that results. Whatever else is left over
is residue.

An engineer or architect in the usual setting, no matter how skilled,
is not doing art because the whole activity is pre-conceived. Even a
clean and elegant design is not usually intended to show beautiful
connections between ideas the same way poetry or mathematics
might. Hiring an engineer for this purpose almost never happens in
industry. Rather the purpose is to make a thing that does what it is
intended to do. It is craft, or second-order residue. Useful, possibly
difficult, but not art.

Some people want to claim ownership of a recipe for predictably
creating residue of a certain kind. An artist knows that this is not
good for doing art because nothing new can come from it. If they are
committed to their practice, they will not seek to prevent others from
using an old recipe. Why would they? They have already moved on.

Some older thoughts on the topic: http://archive.groovy.net/syntac/

18

Howdy,

I have to disagree with you there. This particular ship sailed four decades
ago when CONTU found computer software to be copyrightable and the
subsequent legislation and litigation agreed. If a router configuration
turns out not to be art, it isn't because the engineer had to follow
practical rules to create it.

Regards,
Bill Herrin

19

The output of "craft" is copyrightable even if it doesn't count as "art",
as long as it meets the requirement of 17 USC 102(a)(1) - "literary works".

The issue with software wasn't if it was "art", but if it was a literary work
(they struggled for a while with the concept of machine-readable versus human
readable).

"Furthermore, the House Report discussing the Act states:
The term "literary works" does not connote any criterion of literary merit or
qualitative value: it includes catalogs, directories, and similar factual,
reference, or instructional works and compilations of data. It also includes
computer data bases, and computer programs to the extent that they incorporate
authorship in the programmer's expression of original ideas, as
distinguished from the ideas themselves. {FN8: H.R. Rep. No. 94-1476 at 54}

http://digital-law-online.info/lpdi1.0/treatise17.html

If catalogs and directories are covered, config files are... :slight_smile:

20

Smells like a Friday challenge for who can produce the most "artistic"
yet functionally correct Cisco configuration.

-Bill