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

RF vs. RAND

From: Mark Christensen <mchristensen@HTEC.com>
Date: Fri, 5 Oct 2001 16:07:43 -0400
Message-ID: <2100F5D84712D411A00E00B0D0221D1A202058@kodiak.htec.com>
To: "'www-patentpolicy-comment@w3.org'" <www-patentpolicy-comment@w3.org>
We live in a strange and complex world.  Software, intellectual property,
and communication standards are all complex in their own right, but when you
throw the three ideas together you certainly get a complex maze of issues to
work through.  

Your policy states that "[preservation of interoperability and global
consensus on core Web infrastructure is of critical importance. So it is
especially important that the Recommendations covering lower-layer
infrastructure be implementable on a Royalty-Free basis."  However, this is
placed in an informational rather than a normative section, and no
consideration is given to what exactly constitutes "lower-layer"
infrastructure.  This means that any standard could be started under RAND
mode -- in other words, this policy does nothing to enforce the protection
of low level standards from the encumbrance of RAND licensing terms. 

This coupled with the devastating effect that even moderate licensing fees
could have on the availability of "standards compliant" open source software
leads me to believe that this proposal needs to be largely rewritten.

I do however think that it is essential to address the issue of software
patents early on in the standards process, and this clearly means
implementing some kind of process which includes disclosure agreements, and
some kind of enforcement of RF policy (at least for the core infrastructure
standards). And I applaud you for attempting to create a well defined policy
on these important issues, but the current draft fails not simply because it
includes a provision for RAND licenses, but because it clearly fails to
define the large number of cases when those licenses are unacceptable.  

We understand that you are between a rock and a hard place.  It is obvious
that many large corporations with large patent portfolios don't want to be
forced into disclosure agreements. And so they want in return to be able to
include their patented technology under a more profitable (to them) RAND
license.   But at the same time I'm certain that nobody in the free software
movement will support this policy as it stands.  It has even been suggested
that we will "fork the web" in order to fight this, and while that may not
happen, I am certain that we will consistently condemn the WC3, and ignore
its standards, as we fight to establish alternative non-RAND-encumbered
de-facto standards.  

If the WC3 wants to remain true to it's mission to "make these benefits [of
the internet] available to all people, whatever their hardware, software,
network infrastructure, native language, culture, geographical location, or
physical or mental ability," it simply cannot exclude those who sell,
develop, and use open source software.  

That is not to say that we think every communications protocol must
absolutely be controlled by a RF standard.  I agree with Richard Stallman's
comment that "Perhaps there are some standards for specialized kinds of
business-to-business communication which are sufficiently unimportant that
it may not be disastrous if they are patented.  These standards do not
really deserve the term 'world-wide', but they may still be worth the W3C's
attention."  There may be a place for RAND licensed standards, but any
standard which is intended to be part of the reusable global infrastructure
which underlies the web absolutely must be RF and not RAND.  

I think you'll face opposition from some members of the free software
community if you allow RAND licenses at all, but I believe that there is a
way for you to include RAND licenses if you must.  But it requires  the
proposal to be amended to create a sufficiently broad definition of
"lower-layer" infrastructure, and to include the requirement that those
standards which fit into that category MUST be covered by RF licenses.
Moreover, this discussion should be moved from an informational section to a
normative section of the proposal.  This step is essential if the W3C is to
avoid an all out war with the leaders and members of the free software
movement. 

Yours
Mark Christensen
Received on Friday, 5 October 2001 16:07:50 GMT

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