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Responding to RAND

From: Simon Brooke <simon@beesianum.jasmine.org.uk>
Date: Wed, 03 Oct 2001 16:23:02 +0100
To: www-patentpolicy-comment@w3.org
Message-Id: <E15onrS-0000mM-00@gododdin.internal.jasmine.org.uk>

                              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 GMT

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