W3C home > Mailing lists > Public > www-patentpolicy-comment@w3.org > October 2001

Forbid RAND, require open source compatibility; W3C mission DEMANDS it

From: David Wheeler <dwheeler@ida.org>
Date: Wed, 3 Oct 2001 01:40:58 -0400 (EDT)
Message-Id: <200110030540.BAA27654@aphrodite.csed.ida.org>
To: www-patentpolicy-comment@w3.org
I am disturbed by the W3C Patent Policy Framework Working Draft because
it endorses the concept of W3C "RAND" standards.
RAND standards are fundamentally discriminatory and conflict with the
W3C's fundamental mission.  If the W3C decides to make such a profoundly
risky change in its direction, the W3C will quickly find itself irrelevant.
Do not make such a change so blatantly hostile to the web's users.

The W3C must require that all of its standards be RF, never RAND, and
its standards must be compatible with open source software
(in particular, common licenses such as the GPL, LGPL, BSD-new, and MIT).
I do agree that a patent policy is needed, in particular one that
requires full disclosure by WG members.  However, the "RAND"
option must be jettisoned and forbidden, immediately & forever.

First, the term "reasonable and non-discriminatory" (RAND) is
fundamentally self-contradictory when it comes to web-related patents.
A patent owner never needs to pay to use of their own work, while
others must usually pay.  Also, open source/free software developers cannot
use such work, so all "RAND" policies _FUNDAMENTALLY_ discriminate against
a large group of developers and users.  And this group has been increasingly
important to web-related standards.

Indeed, a disturbing aspect about this proposal is the complete lack
of representation by the open source/free software community.
Since this community represents a large number of the implementers and
users of W3C standards, the W3C should ensure that its policies are
consistent with theirs.  The _MAJORITY_ of HTTP implementions, and a
healthy minority of HTML implementions, are open source, and such a
policy change is an affront to these previously avid supporters of the W3C.
In particular, the W3C should explicitly ensure that any standard that
it develops in the future can be implemented by this important constituency.

The "justification" for RAND simply isn't.  It is
essentially hand-waving, with a note that some companies don't want to
participate in the W3C if the standard is RF.  This is irrelevant.
No standard receives participation by all parties in the world - all that's
needed for a good standard is enough participation to solve the given problem.
Generally, once companies understand that it's "RF or no standard", they
accept RF.  Those who don't, weren't interested in permitting competition
anyway.  The framework goes on at great length on how to implement RAND,
but completely fails to significantly justify the entire approach of RAND.
And as I'll describe more fully in a moment, RAND fundamentally violates
the W3C's own mission, so even a full justification wouldn't save it.

It is true that many other organizations have RAND-like policies, but
this is misleading.  Most of them (e.g., ISO, ANSI, IEEE) have a long history
in non-software standards, where patents were originally intended to apply.
IETF has such a statement, but in practice many IETF working groups are
virulently opposed to "RAND" standards.  Yes, the W3C hasn't had a policy,
but there's no policy that says that water is wet either.. as the W3C
itself has noted, this has been a widely-held understanding, and so
if the W3C accepts RAND, it has the _effect_ of a fundamental change.

The proposed RAND option FUNDAMENTALLY VIOLATES the W3C's own mission.
I have examined the W3C's page "About the World Wide Web Consortium (W3C)"
at <http://www.w3.org/Consortium/>; looking at the key points shows that
the drafters of the "W3C Patent Policy Framework Working Draft" have
developed a framework fundamentally opposed to the W3C mission.


First, the W3C goals:

>    1.Universal Access: To make the Web accessible to all by promoting
>    technologies that take into account the vast differences in culture,
>    education, ability, material resources, and physical
>    limitations of users on all continents; 

The RAND proposal fundamentally LIMITS access to the web by those with
fewer material resources, as well as those who identify themselves in the
"open source" or "free software" cultures.  Thus, if the W3C
endorses a RAND standard, it shows that its goal is to PREVENT
universal access.


>    2.Semantic Web : To develop a software environment that permits
>    each user to make the best use of the resources available on the Web; 

The RAND policy will prevent some users from making use of resources
available on the web. This in particular includes poor users & open source/
free software develoeprs.

>    3.Web of Trust : To guide the Web's development with careful
>    consideration for the novel legal, commercial, and social issues
>    raised by this technology. 

There is a careful consideration of the process to create a RAND standard,
but there is no evidence in the documentation provided that the need
for RAND itself was carefully considered.  Indeed, there's no compelling
evidence in any of the information published that RAND is actually necessary.
The evidence provided shows clear evidence that the
W3C must require disclosure, certainly.  However, I think the evidence
is more clearly showing the need for an explicit RF-only policy by the W3C.

But regardless of that consideration, other issues seem to have been ignored.
For example, there appears to be no examination of the social issues
implied by RAND.  RAND implies that small businesses and open source
developers will no longer be able to implement certain W3C standards,
and they have been a major source of innovation and
implementation of standards.  This would be a widespread loss, and far
outstrips the unproven gains in permitting RAND.


Let's look at the W3C Role:
>
>1.Vision: W3C promotes and develops its vision of the future of the
>World Wide Web. Contributions from several hundred dedicated
>researchers and engineers working for Member organizations, from the
>W3C Team (led by Tim Berners-Lee, the Web's inventor), and from the
>entire Web community enable W3C to identify the technical requirements
>that must be satisfied if the Web is to be a truly universal
>information space.

RAND implies that the web will no longer be a universal information space.
With RAND, access to the web will be controlled by those who control the fees
(or, by holding the patents or being part of a patent-sharing cartel,
are immune to the fees).

>2.Design: W3C designs Web technologies to realize this vision,
>taking into account existing technologies as well as those of the future.

By developing RAND standards, the W3C forbids the use of many
existing technologies built as open source (particularly those with
GPL and LGPL licenses).  Thus, the RAND concept fails to take into
account existing technologies.  Again, the RAND concept fails to meet
W3C mission requirements.

>3.Standardization: W3C contributes to efforts to standardize Web
>technologies by producing specifications (called "Recommendations")
>that describe the building blocks of the Web. W3C makes these
>Recommendations (and other technical reports freely available to all.

This is one of the most blatant failures of the RAND proposal.
It makes little sense to make a recommendation "freely available to all"
if you can't use it freely.  "Freely available to all" only makes sense
if it can be freely implemented.. which means that the W3C's own
mission statement requires that RAND be forbidden.



Now let's look at the "Design Principles of the Web":
>    1.Interoperability: Specifications for the Web's languages and
>    protocols must be compatible with one another and allow (any)
>    hardware and software used to access the Web to work together.

A "RAND" policy means that many software products, including all
open source/free software products, cannot interopate using those RAND
specifications.  Thus, the "any" in this statement is fundamentally
violated. Again, this shows that RAND is incompatible with the W3C's mission.

>    2.Evolution: The Web must be able to accommodate future
>    technologies. Design principles such as simplicity, modularity, and
>    extensibility will increase the chances that the Web will work with
>    emerging technologies such as mobile Web devices and digital
>    television, as well as others to come.

A "RAND" policy is likely to make it more difficult and expensive to
extend the use of technology.  If a standard is RAND-based, others will
be hesitant to extend its applicability to other areas because they'll
have to pay more fees.

>    3.Decentralization: Decentralization is without a doubt the newest
>    principle and most difficult to apply. To allow the Web to "scale"
>    to worldwide proportions while resisting errors and breakdowns, the
>    architecture(like the Internet) must limit or eliminate
>    dependencies on central registries.

A patent owner is a central registry, with all the failures of one,
with the added complications of legal proceedings and jurisdictions.
Imagine that a patent owner is bankrupt and in litigation.. how would
a new developer negotiate with the patent owner for novel applications of
the standard, or for interpretations related to it?  What about the
death of a patent owner (for privately-owned patents) - would an
estate really understand the issues?

>

I am speaking only for myself, but any examination of this mailing list
reveals that a vast number of people believe RAND is a bad idea.
It's time for the W3C to demonstrate moral courage, and stand up to the
few who want to use the W3C as a cover (and abandon it later, once everyone
has been forced to use only their products).

If the W3C cannot demonstrate such courage, then the W3C must rewrite
its mission to describe its new purpose - RAND is completely incompatible
with the W3C's current mission.  And if the mission is rewritten, the
new mission would become "to try to force others to use patented products."
It really is that simple.

Please, make it an explicit policy to FORBID RAND standards in the W3C.
If companies want to implement patented concepts, let them; an RF-only
policy (which is how the W3C has run so far) does not prevent this.
However, such companies should not be able to use the W3C to force others
to use their patents.

Thank you.
Received on Wednesday, 3 October 2001 01:41:30 GMT

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