- From: Simon Brooke <simon@beesianum.jasmine.org.uk>
- Date: Wed, 03 Oct 2001 16:23:02 +0100
- To: www-patentpolicy-comment@w3.org
Responding to RAND
Author: [1]Simon Brooke
Summary: this paper describes the W3C proposal to accept 'RAND'
licensed technologies in W3C recommendations, the responses to it thus
far, and action the free software community could take to defend
itself against the consequences.
Created: Wed Oct 3 09:30:22 BST 2001
Current version:
[2]http://www.jasmine.org.uk/~simon/bookshelf/papers/rand-response.html
_________________________________________________________________
Contents
[3]The issue
[4]Why does this matter?
[5]Who is behind this proposal?
[6]Responses so far
[7]So what are we going to do about it?
The issue
The [8]World Wide Web Consortium (hereinafter 'W3C') has recently
produced for public comment a proposed [9]draft policy on patents.
Under this draft, members of the W3C would be permitted to advance as
proposals, and have endorsed as recommendations, technologies on which
they had already obtained patents. They would then be able to collect
license fees from all implementers of the recommended technology.
Why does this matter?
Why does this matter? In practice, many other standards setting bodies
- including the [10]ITU and the [11]IETF - have the same policy. But
while ITU and IETF standards are frequently implemented in hardware,
for which the principle of patents is internationally uncontentious,
W3C standards have, to date, related exclusively to software. Most
countries internationally do not recognise software patents as valid.
Free Software
Futhermore, and more importantly, hardware, because it has physical
existence, cannot (yet) be duplicated at marginal cost, and
consequently there is not currently any considerable free hardware
movement. The contrast with the software used on the Web is stark.
There can be very few significant Web sites anywhere which do not make
extensive use of '[12]Open Source' or '[13]Free' software. This
software is typically developed by volunteers, and is given to the
community at no cost. It is not an understatement to say that the free
software movement has [14]built the Web.
This proposal effectively prevents the free software movement from
continuing to have an effective part in Web development. Because no
fees are collected for the distribution of free software, and the
principle of free software requires that it should be capable of being
passed on indefinitely, there is no means of tracking all the users of
any free software module, let alone of charging them license fees. No
level of license fees are 'reasonable and non-discriminatory' with
respect to free software; on the contrary, any license fee
automatically discriminates against all free software projects.
The International Dimension
It's also unclear how this proposal relates to international patent
law; it seems to have been written from a narrow, US-centric
perspective. As stated above, the view that software is patentable is
to say the least an unusual one. Only half a dozen territories world
wide recognise the legal validity of software patents; the American
position on this does not by any means carry international concensus.
Would [15]Opera, for example, based in Norway, be required to pay
licence fees on RAND technologies in respect of users also based in
Norway (or elsewhere in Europe), where software patents have no force?
If so, on what legal basis would it be so required? Alternatively,
would they be required to keep audited records of exactly what
territories each of their users inhabited? If so, who would bear the
cost of this? Why should Opera bear the cost of this?
Who is behind this proposal
W3C proposals, such as this one, are written by the members of W3C,
not by its staff. The W3C has always been a rich corporations' club,
and that has always been its key weakness: full membership costs US
$50,000 per annum, and even associate membership costs US $5,000. In
this case the authors are:
* Michele Herman, Microsoft, micheleh@microsoft.com
* Scott Peterson, Hewlett-Packard, scott_k_peterson@hp.com
* Tony Piotrowski, Philips, tony.piotrowski@philips.com
* Barry Rein, Pennie & Edmonds (for W3C), barry@pennie.com
* Daniel Weitzner, W3C/MIT, djweitzner@w3.org
* Helene Plotka Workman, Apple Computer, plotka@apple.com
Are axes being ground?
I personally find it deeply disappointing to see Hewlett Packard in
that company. Hewlett Packard is one of the companies which has
publicly acknowledged its (very considerable) debt to the open source
community. It is not, however, surprising to see either Microsoft or
Apple here. Microsoft has been publicly campaigning against free
software for some time, describing it as '[16]a cancer'. Microsoft
clearly sees free software as its most significant remaining
competition. For an attack on free software to have originated with
Micris no surprise.
Apple pays a great deal of [17]lip-service to free software, but their
track record on free software issues is by no means unblemished. It is
a disappointment, of course, but no particular surprise to me to see
them involved in this proposal.
Responses so far
I have read through all the responses to the proposal as of 3rd
October. Up until 27th September there had been thirteen responses out
of which only two had been on topic (the rest being UCE); of the
on-topic responses [18]one had been against RAND and [19]one commented
only on typographical errors. From the 27th of September onwards, as
commuinity news sites became aware of the issue, the rate of comment
rose dramatically, and although some responses misunderstood the
proposal, the overwhelming proportion are well expressed, clearly
written, and stongly against the proposal that RAND licensed
technologies should be accepted as W3C recommendations.
What key members of the community think about it
From among the 1069 responses posted as of this morning I've tried to
pick out those made by people I recognise as influential and
authoritative members of the free software, Web and Internet
communities. Here are those I found:
* [20]Jeremy Allison (Samba)
* [21]Tim Bray (editor of [22]XML 1.0)
* [23]Ken Coar (Apache Foundation)
* [24]Alan Cox (Linux Kernel)
* [25]John Gilmore (Cygnus and Electronic Frontier Foundation)
* [26]Eben Moglen (Free Software Foundation)
* [27]Bruce Perens (Debian, Open Source Initiative)
* [28]Tim O'Reilly (O'Reilly & Associates)
* [29]Richard Stallman (EMACS, Free Software Foundation)
*
* and finally, [30]me (no, I'm not important)
If I've missed anyone I shouldn't have, I'm sorry - blame tired eyes.
I was particularly looking for comments by Brian Behlendorf, Eric
Raymond, Larry Wall, Linus, Hakon Lie, Vint Cerf and Tim Berners-Lee,
but if they were there I didn't see them.
So what are we going to do about it?
We have to face the fact that these days commercial companies have a
lot of power on the Web. If AOL/Time Warner/Netscape, Microsoft, CNN,
the movie studios and the big music companies get together to invent
new, patented (in the US) Web technologies which won't interoperate
with Open Source technology, then 90% of the Web using public will not
notice. If they do notice, they'll blame our software for 'not
working'.
So we have to make a determined, co-ordinated grab for the moral high
ground. I'm prepared to bet that W3C will be a bit shaken by the
furore they've brewed up here, and I would endorse everyone else's
suggestions that anyone who hasn't responded yet to the consultation
document does so now, in calm, polite, grammatical, spelling-corrected
words, explaining why you see 'reasonable and non discriminatory'
license fees as unacceptable.
This may in itself be enough. I hope it will, but I think we should
prepare against the possibility that it won't. What should we do? I
believe we should take immediate steps to set up a new, independent,
standards setting body for the Web spearheaded by people with a wide
international reputation with the avowed intention of forking the
standards base and maintaining free, open, standards for the Web.
Why not use the IETF?
Why a new one, instead of working through the existing (and mostly
admirable) processes of the IETF? Well, frankly, it would be better if
we could got to the IETF, but unfortunately as detailed above their
policy on patents is no different. In fairness, as discussed above,
many IETF RFCs relate to hardware. But because of this, we cannot view
the IETF as a safe owner for Web standards, and, indeed, we should
perhaps reconsider whether it forms a safe owner for Internet
standards.
We should work to include the corporates who have already shown their
commitment to Open Source into a broad coalition alongside the
recognised open source projects, and seek to isolate Apple,
Hewlett-Packard and Microsoft (the companies who actually authored
this proposal).
The long term objective is not to have two competing standards setting
bodies: it is to hold over the W3C a credible threat of two competing
standards setting bodies. In the face of that credible threat it's my
opinion that W3C will rethink. If they don't, we would have to do this
for real, but that is in my opinion very much a suboptimal option.
_________________________________________________________________
[31]Simon Brooke
Last modified: Wed Oct 3 15:28:00 BST 2001
References
Visible links
1. mailto:simon@jasmine.org.uk
2. http://www.jasmine.org.uk/~simon/bookshelf/papers/rand-response.html
3. file://localhost/var/home/simon/tmp/rand-response.html#issue
4. file://localhost/var/home/simon/tmp/rand-response.html#why
5. file://localhost/var/home/simon/tmp/rand-response.html#who
6. file://localhost/var/home/simon/tmp/rand-response.html#responses
7. file://localhost/var/home/simon/tmp/rand-response.html#what
8. http://www.w3.org/
9. http://www.w3.org/TR/2001/WD-patent-policy-20010816/
10. http://www.itu.int/home/
11. http://www.ietf.org/
12. http://www.opensource.org/
13. http://www.fsf.org/
14. http://www.netcraft.co.uk/survey/
15. http://www.opera.com/
16. http://www.theregister.co.uk/content/4/19396.html
17. http://www.opensource.apple.com/
18. http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Aug/0004.html
19. http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Sep/0005.html
20. http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Sep/0033.html
21. http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Sep/0436.html
22. http://www.w3.org/TR/2000/REC-xml-20001006
23. http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Sep/0434.html
24. http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Oct/0055.html
25. http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Sep/0736.html
26. http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Sep/0650.html
27. http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Oct/0027.html
28. http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Oct/0175.html
29. http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Oct/0018.html
30. http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Oct/0316.html
31. mailto:simon@jasmine.org.uk
Hidden links:
32. http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Oct/0454.html
Received on Wednesday, 3 October 2001 11:23:59 UTC