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An extended comment on this Web-patent farce

From: Ben Henick <persist1@io.com>
Date: Mon, 1 Oct 2001 15:51:37 -0500 (CDT)
To: <www-patentpolicy-comment@w3.org>
Message-ID: <Pine.LNX.4.33.0110011548420.11882-100000@eris.io.com>
The following is also available as a full-on Web document at



And Quiet Flows the Rubicon
The Siren Song of Patenting the Web's Infrastructure

Yesterday a deadline passed on the "Last Call" period for a new World Wide
Web Consortium policy process regarding patents.

The surprise with which the majority of Web developers are receiving this
news deserves journalism of its own, but I want to note instead the
practical implications of this event.

As proposed this process codifies some common-sense ideas, especially that
companies involved in the W3C standards process should make a "good-faith"
effort to disclose any patents they may have on file that will impact a
given standard.

As Microsoft has ebulliently pointed out, it sanctifies the concept of
intellectual property as it can be applied to the Web.

(I am now waiting for their senior management and PR flacks to suggest
that the early Web was some sort of "Communist" or "anarchist" creation in
keeping with the tactics of Microsoft's anti-OSS FUD campaign.)

while I support Microsoft's position to the extent that people should be
compensated for their hard work whenever it is practical, the idea of
applying a licensing scheme to standard Web technologies is entirely
one-sided, and disregards the prerogatives of the other three parties
involved with the Web apart from purveyors of infrastructure: content
creators, developers, and most importantly... users. I am especially
concerned for the latter group, since shit tends to roll downhill. The
users are the ones standing at the bottom of that hill.

From what I read, any licensing fees would be applied "fairly," without an
exact definition of what "fairly" means in terms of the dollars and cents
licensing is meant to obtain. When one considers that Web content creation
is already an expensive task, I bristle at the thought that I or my
employer might be asked to pay yet MORE money for the simple objective of
following the law.

Furthermore, as pointed out by Richard Stallman and others, the idea of
allowing protected IP to be standardized creates a situation in which the
inner workings of standard technologies can be hidden from the public
view. The impact this would have on the very innovation that has kept the
Web growing for the past ten years is manifest.

These are the problems. As some have already pointed out, solutions are
hard to come by.

First, we as a community can ask the W3C to shelve the licensing idea

Second, we can ask W3C to insist that patents on standards should have
free licenses, as Stallman has suggested. This would certainly prevent any
further "gotchas" like the ones inflicted by Unisys (GIF), Frauenhofer
(MP3), or British Telecom (hypertext in general). We would not even have
to debate - as we have in the latter case - whether or not there is "prior
art" to make the patent unenforceable.

Third, we can endeavor through the Web Standards Project or a new group to
become more involved in the standards process from the beginning, and
serve as a counterweight to the megacorps. (Perhaps that reference should
be singular, but I digress.) This would require close collaboration with
open-source development groups, but might prove to be the most fruitful
avenue for continued innovation that will best service the everyday Web
user if it is pursued with intensity and vigilance.

Fourth, we can sit on our hands.

In the latter two cases, we will begin to see a standards process that is
fraught with controversy as various entities fight amonst themselves to
control the licensing of new technologies, which users may then reject.

To have a standard that must be paid for with each implementation or
end-use is an affront to the community standards of the Web as we have
known it for ten years.

For standards to be held up in the face of development problems,
infighting, and other issues is something we've already seen on a small
scale, with the seemingly-endless development of Mozilla into a
consumer-grade tool. Does anyone want such scenarioes to become the
Standard Operating Procedure for the development of new Web technologies?

Once all of these hurdles have been surmounted, it is then up to the user
to decide if they are going to actually use the technology. Many ideas
have been rejected despite the best efforts of incredibly bright people
with a nearly blank check. For the W3C to legitimize the possibility of
such an outcome by allowing a single company to patent a standard runs the
risk of slowing down innovation on the Web... and that's what frightens me


You can always make more money... but as recent events have underscored,
you cannot make more time.

For this reason, I call on the W3C generally, and its Patent Policy
Working Group members in particular, to put the Patent Policy Framework
process on hold until a reasonable cross-section of those involved with
the Web - meaning content creators, developers, and users in addition to
providers of infrastructure and software - has had a "good faith"
opportunity to make an honest contribution to its implementation.

Thanks for reading,
Ben Henick
Web Author At-Large              Managing Editor
http://www.io.com/persist1/      http://www.digital-web.com/
persist1@io.com                  bmh@digital-web.com
"Are you pondering what I'm pondering, Pinky?"
"I think so, Brain, but... (snort) no, no, it's too stupid."
"We will disguise ourselves as a cow."
"Oh!" (giggles) "That was it exactly!"
Received on Monday, 1 October 2001 16:51:38 GMT

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