[cabfpub] [EXTERNAL]Re: ]RE: Ballot 194 - Effective Date of Ballot 193 Provisions is in the VOTING period (ends April 16)
jeremy.rowley at digicert.com
Tue Apr 18 12:58:56 MST 2017
Refusing to count multiple votes from one organization is not the same issue as counting a vote received on the public list after the voting period closed. They are not analogous as the two scenarios present two different risks.
Improper votes are improper votes?
[JR] Improper votes are not defined in the bylaws. The only action that is defined is “Votes not submitted to the Public Mail List will not be considered valid, and will not be counted for any purpose.” The bylaws lack guidance on what other non-compliances in the process mean.
The vote was received via the public mailing list (thanks to Kirk forwarding the vote), but after the voting period expired. The bylaws don’t dictate that the member must make the vote via the public mailing list, just that all voting will occur there.
To make sure I understand this argument in the context of https://cabforum.org/wp-content/uploads/CA-Browser-Forum-Bylaws-v.-1.5.pdf
The bylaws state the following:
Section 2.2 states:
(d) Upon completion of the discussion period, Members shall have exactly seven calendar days for voting, with the deadline clearly communicated in the ballot and sent via the Public Mail List. All voting will take place via the Public Mail List. Votes not submitted to the Public Mail List will not be considered valid, and will not be counted for any purpose.
Section 2.3 states
(c) As described in Section 2.2(d), upon completion of such discussion period, Members shall have exactly seven calendar days to vote on a Draft Guideline Ballot, with the deadline clearly communicated in the ballot sent via the Public Mail List. All voting will take place via the Public Mail List. Votes not submitted to the Public Mail List will not be considered valid, and will not be counted for any purpose. The Chair may send an email to the Public Mail List reminding Members of when the voting period opens and closes.
Section 5.2 states:
(c) Messages formally proposing a Forum ballot (including ballots to establish, modify, or terminate Working Groups), individual votes, vote and quorum counts, and messages announcing ballot outcomes and voting breakdowns.
The word "submit" occurs 9 times within the Baseline Requirements. Section 2.2, Section 2.3, Section 4.1, and Section 5.3. With the exclusion of Section 5.3, the references in Section 4.1 all related to "vote submitted" or "votes submitted", so we should conclude those are the same.
Within Section 2.3, the following occurrences exist:
(f) The Review Period will continue to the end of the 30- or 60-day period, as applicable, regardless of the number of Exclusion Notices filed pursuant to the IPR Policy during such period, if any. No later than 3 business days after the conclusion of the applicable Review Period, the Chair will distribute any Exclusion Notices submitted in accordance with Section 4.2 of the IPR Policy via the Public Mail List; provided, however, that the Chair may distribute such Exclusion Notices earlier.
(g) In addition to following the process for submitting Exclusion Notices set forth in Section 4 of the IPR Policy, Members will also send Exclusion Notices to the Public Mail List as a safeguard.
In your view, the act of submission does not require authorization to post on the Public Mail List, does not require acceptance by the Public Mail List, nor does it require distribution as part of the public mail list. Your view is that "All voting will take place via the Public Mail List" does not correspond with the deadline of "Members shall have exactly seven days for voting" - that is, provided that a vote is (eventually) shared on the Public Mail List, that the requirement is met.
[JR] Correct. If the bylaws meant the vote needed to be distributed to the Forum through the public mailing list during the allotted time, the wording would have stated such. Instead, the author chose to use the word submitted despite the previous sentence mandating that all voting occur on the mailing list. Either its poor drafting or the intent was that the submission is sufficient.
Is it consistent, then, that the act of "submitted Exclusion Notices" does not require confirmation of the receipt by the Chair? If the Chair claims not to have received an Exclusion Notice after the 3 business days afforded, is that exclusion valid?
[JR] Yes. That is why the bylaws in (g) mandate that the exclusion notices also be sent to the Public Mailing list as a safeguard.
I realize this sounds very much like "Bylawyer-ing", but I hope it clarifies the importance of these concerns. If this interpretation of "submit" stands, and Microsoft's vote is accepted, it means that Ballot 183 has failed to meaningfully address the concerns related to IP disclosures, in a way that creates a singular and central point of failure or abuse. While we assume good faith in all participants, the risk becomes unacceptable if there is no assurance that exclusions will either meaningfully be disclosed (if done by other parties) or accepted (if done on our part). The key advantage of the Forum, carefully negotiated over years of effort, which is that of the IP protection for such contributions, entirely evaporates.
[JR] I’m okay with bylaw-ering. However, I disagree with your assessment on the IP issue. The issue remains with all non-members. There’s nothing that ensures that all IP is disclosed. I also think that the bylaws were likely intentionally worded that way to avoid anyone accidentally assigning their IP due to a failure by the email server. However, that’s speculation. If the drafter intended that disclosures had to be received by the forum to become effective, the drafted would have used a different word than “submit”.
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