- From: Rufus Polson <dpolson@sfu.ca>
- Date: Wed, 03 Oct 2001 16:25:18 -0700
- To: www-patentpolicy-comment@w3.org
Dear sirs, I am concerned about an issue regarding the inclusion of patent licensing in worldwide standards which does not seem as yet to have surfaced. That issue is national sovereignty and the extension of national laws into international contexts. Most patents are national. Rules vary between countries; most software patents are U.S. based due to its relaxed attitude to the granting of such patents. In the European Union, on the other hand, software patents remain technically illegal although a loophole exists, and the question of whether they will be legalized remains open and in vigorous contention; it is currently by no means settled. A W3C standard, however, is intended to be international in nature. If W3C standards incorporate patents and mandate paid licensing for the use of those patents, those patents gain global reach. The W3C currently is framing the debate in a way that, perhaps deliberately, ignores this point. From the W3C response to the initial wave of feedback, "W3C also recognizes that software patents exist (and patent issues have become more prevalent with the growth of the Web), and ignoring them will do more harm than good." But software patents don't, in fact, exist on the global basis on which the W3C is supposed to operate. The W3C claim not to have an opinion on the validity or appropriateness of software patents--to be apolitical on the subject. But the act of incorporating national patents, largely United States based, and payment schemes for same into international standards is a very political act, one which acts as a wedge to push software patents into the rest of the world. The very framing of what is in fact a controversial subject on which laws across the world are all over the place ("are there, or should there be, software patents?") as a simple feature of the world ("software patents exist . . . ignoring them will do more harm than good") is a political move. Whether the intent is political or not is irrelevant--the effect most certainly is. If a political effect was not intended, it might be wise for the W3C to consider whether they wish to advance the political agenda associated with the extension of U.S. patent laws to the world stage. Of course, the only factor that makes RAND licensing remotely plausible is that these national patents are U.S. patents. Imagine if some other nation were the major source of software patents--say, Nicaragua. Would it not seem ludicrous to mandate worldwide standards that incorporated Nicaraguan patents on the basis that "software patents exist"? Even Chinese patents would seem to us a rather flimsy basis for worldwide extension. How then does this suddenly become simply part of the background of what "exists" when the major country in which the patents are based is the United States? Depending on how things work out politically, the passage of the RAND licensing policy could result in greater pressure for U.S. style software licensing worldwide, or even de facto extralegal application of many existing U.S. software patents on a worldwide basis. Or it could result in backlash; if the European Union became disgruntled by this threat to their sovereignty, they might choose to create a new standards body of their own and get serious about disallowing software patents. Much of the world might follow. This might be fine as far as it went, but it could result in there being two Webs: a World-wide Web and a States-wide Web. Not quite--the reality would be messy. Many countries with close ties to the states would follow the RAND model, and to a large extent the Web would behave somewhat independent of geography as usual, so any given country would be mixed, with large corporate sites toeing one line, but many other organizations and individuals going different directions, and lots of sites probably doing a kludgey job of trying to support both sides. The interaction between this national-sovereignty alternative standards reaction and a free-software alternative standards reaction could add still more complexities. For interoperability, the results could be nightmarish. The ramifications of the attempt to extend national patent laws to the international stage could be as bad for the web and the politics of software as the basic problem of the patent-based standards themselves. The W3C should beware of the unintended political content and consequences of any initiative that would help national patentholders to charge royalties internationally on their patents, no matter how "non-discriminatory" the terms. Rufus Polson "And it's a hi! ho! hey! ho! Farmers bar their doors When they see the Jolly Roger on Regina's mighty shores!" (Arrrr, Metis) ---Arrogant Worms, The Last Saskatchewan Pirate
Received on Wednesday, 3 October 2001 19:27:38 UTC