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Proposal for clarification of RAND licence definition.

From: David Woodhouse <dwmw2@infradead.org>
Date: Thu, 04 Oct 2001 18:11:33 +0100
To: www-patentpolicy-comment@w3.org
Message-ID: <29345.1002215493@redhat.com>
The definition of a RAND licence would appear to be in need of 
clarification. Quoting from the definitions listed at 
http://www.w3.org/TR/2001/WD-patent-policy-20010816/ 

(e) RAND License

    RAND stands for "reasonable and non-discriminatory" terms. A "RAND
    License" shall mean a license that:

    1. shall be available to all implementers worldwide, whether or not
       they are W3C Members;
    2. shall extend to all Essential Claims owned or controlled by the
       licensor and its Affiliates (except as described in section 8.2
       concerning licenses relating to Contributions);
    3. may be limited to implementations of the Recommendation, and to 
       what is required by the Recommendation;
    4. may be conditioned on a grant of a reciprocal RAND License to all
       Essential Claims owned or controlled by the licensee and its 
       Affiliates. For example, a reciprocal license may be required to 
       be available to all, and a reciprocal license may itself be 
       conditioned on a further reciprocal license from all (including, 
       in the case of a license to a Contribution, the original licensee).
    5. may be conditioned on payment of reasonable, non-discriminatory 
       royalties or fees;
    6. may not impose any further conditions or restrictions on the use 
       of any technology, intellectual property rights, or other 
       restrictions on behavior of the licensee, but may include 
       reasonable, customary terms relating to operation or maintenance 
       of the license relationship such as the following: audit (when 
       relevant to fees), choice of law, and dispute resolution.


The concern of many people is that the above definition would permit patent 
licensing agreements which effectively prohibit the development of Free 
Software which complies with new standards, by demanding that a fee be paid 
per unit shipped, or per product/version released, or even per developer.

Let us deal with these possibilities in turn.

A licence agreement which requires a fee per unit shipped would effectively
prohibit the use of the licensed technology in products which are intended
to be shipped free of charge. It is clearly discriminating against such
products. Therefore, any RAND patent licensing agreement must not impose a
per-unit fee unless that fee is waived for gratis software.

Furthermore, any licence agreement which requires a fee per product or per
version released is clearly discriminating against Free (i.e. libre)
Software, where the development model generally involves a rapid progression
of interim releases, and many 'products' being evolved from a single source
base. Therefore, any RAND patent licensing agreement must not impose a
per-release fee unless that fee is waived for Free (libre) Software.

It is equally clear that a per-developer payment model would also 
discriminate against the development model of Free Software, and is also 
not permitted.

Indeed, it is also the opinion of many that to create a web 'standard' for
which there cannot be a reference implementation which is both libre and
gratis is in violation of the fundamental principles which made the World
Wide Web successful, and is extremely unreasonable - thereby falling
foul of the RAND licence definition on more than one count.

In summary, my interpretation is that any patented technology must be
unconditionally available for use in any Free Software in order to meet the
definition of a RAND licence. 

I strongly recommend that the W3C clarify the definition of the RAND 
licence to make this situation obvious. I propose the addition of a seventh 
clause to the definition above:

    7. shall be available unconditionally and without charge for the
       development and use of free software which is intended to implement
       the Recommendation.

This, or similar, wording, would explicitly allow the development of free
implementations of future standards, while limiting the required licence
grant to the minimum that is reasonable and hence allowing the patent
holders to maintain a revenue stream from the licensing of the patented
technology to commercial third parties. 

--
dwmw2
Received on Thursday, 4 October 2001 13:11:39 GMT

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