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Conern of the term "reasonable and non-discriminatory royalty fees"

From: Paul H. Smith <paulhsmith@sisna.com>
Date: Fri, 05 Oct 2001 23:26:08 -0700
Message-ID: <3BBEA400.80F8C0A5@sisna.com>
To: www-patentpolicy-comment@w3.org
To Whom it may Concern;

The definition of a RAND license in section 4.e.5 of the "W3C Patent
Policy Framework" indicates that a RAND license may be conditioned on
payment of "reasonable non-discriminatory royalties or fees".  While
this statement may be considered a reasonable constraint in the
commercial software industry, it effectively locks out open-source
software solutions which are not backed by an organization which can
demand fees for the use of their software.  This is especially
disturbing given the current number of Apache webservers currently in
use (approx 60% according to www.netcraft.com).

Implementation of RAND licensing would block the open-source
communities' efforts to continue to extend and improve open-source web
enabling technologies such as Apache.  Such an effect would clearly
change the current market dynamics and would impose unreasonable
restrictions on how sites could implement their solution.

The implementation of RAND licensing would also change the market
dynamics of client side software (such as web browsers) since only
commercial software would be able to implement standards using RAND
licensing.   Web browsers provided royalty free would be seriously
effected by this policy change, including Netscape, Konqueror, links,
and lynx.

RAND also raises serious questions regarding licensing in countries that
do not support software patents.   Would a commercial software house
implementing a W3C standard with RAND licensing developed in a country
that did not support software patents be required to pay royalties ?
Would that company be restricted to sell the software only in countries
that do not support software patents ?   What about open-source projects
implemented in countries that do not support software patents ?   What
about free-software, which by its very definition can not restrict
access to use (by imposing fee's, by borders, etc.) ?

Imposition of standards requiring RAND licensing would force developers
of royalty free, open-source, or free-software to develop alternate
standards (since they obtain no income to draw on to pay royalties),
causing the www to become splintered with multiple incongruent
standards....Such an event is clearly bad for both software developers,
web developers, and end users.

Given the above concerns, I would strongly urge the W3C to either
require only RF licensing, or at minimum, a modified form of RAND
licensing which clearly spells out what "reasonable and
non-discriminatory" means and which clearly spells out the impact of
software developed and/or used in foreign countries.   Such a modified
RAND license MUST allow for existing open-source software licensing
schemes, existing free software licensing schemes, all reasonable
shareware licenses and all reasonable freeware licenses.  Such a RAND
license could demand such things as credit for its contribution to the
standard, or require that software suggest donations be provided to the
organization owning the software patent.

Thank you;

Paul H. Smith
paulhsmith@sisna.com
Received on Saturday, 6 October 2001 01:29:00 GMT

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