- From: arle lommel <arle@lisa.org>
- Date: Mon, 08 Oct 2001 09:26:47 -0500
- To: <www-patentpolicy-comment@w3.org>
To: The World Wide Web Consortium and interested parties Re: Proposed RAND policy change Date: 8.October 2001 [8:45 Central time] Summary: This posting lists six major objections posted in response to the proposed RAND policy change. Each one is explained briefly. (NOTE: this posting is based on an article available on-line at http://www.lisa.org/2001/rand/rand.html) **************** Dear W3C, I am writing this message in the hopes that I may have some positive impact on the current debate over RAND licensing. In particular this response concerns the potential impact that the creation of standards subject to RAND licensing fees might have. It does not address the disclosure or revised RF parts of the proposal, which are not the primary issues at stake. I have read many of the postings on this subject here and found that many of them show little or no understanding of the issues involved. Between threats and irrelevant comments that show a lack of comprehension of the issues, it is somewhat difficult to distill what the relevant criticisms of the policy really are. This clearly makes the W3C's job harder. Nonetheless, after going through many of the posts it seems that opposition to the RAND provisions in the proposed policy is focused on six items: 1. For software development with no revenue model no licensing fees could be reasonable. For free software RAND is a contradiction in terms. RAND would force free software developers to either leave features out of their software or even cripple existing features in it. 2. The RAND policy violates the W3C's mandate by letting the W3C create standards that could stand as barriers to universal access to the Internet. 3. Only a few countries currently recognize software patents, meaning that the legal framework behind the RAND proposal is not codified in national law throughout most of the world. The RAND proposal would still require the payment of licensing fees, even though the software might be sold or distributed where the patents hold no validity. 4. Some smaller software developers feel that RAND would put them at the mercy of larger corporations and not free to fully implement standards. 5. RAND would create a climate of fear or uncertainty in which developers would not know if or when a company might choose to exercise patent rights on a standard, making planning difficult and perhaps forcing developers to dispense with features entirely. 6. If RAND goes into effect, companies might choose to not follow patent-encumbered W3C standards, or might choose to create alternate de facto standards outside the W3C. (This is commonly being referred to as a "fork".) Each of these criticisms deserves a brief, but more detailed, examination: 1. RAND discriminates against free software The RAND proposal does seem to assume a revenue-producing business model behind software development. In the absence of a revenue model there is no apparent way in which free software developers could pay licensing fees. Brooke also points to cases in which free software has had to abandon central features (such as GIF image or LZW image compression support) because of licensing fees being imposed on standards after such software had used them for some time. The W3C's original proposal does not mention open-source or free software anywhere in the document, and this is an area that appears not to have been considered in the Working Group to any real extent (at least as far as can be determined in the proposal). The W3C's public response to criticism has not addressed this point either. This issue is a major one, involving not just the W3C, but questions of patent rights in general and how non-revenue models can co-exist with businesses that must be concerned about revenues. This issue must be publicly debated before the proposed RAND policy takes effect. 2. RAND erects barriers to Internet access The W3C states that one of its three goals is "Universal Access: To make the Web accessible to all by promoting technologies that take into account the vast differences in culture, education, ability, material resources, and physical limitations of users on all continents" Opponents claim that charging for use of W3C standards violates this goal (particularly the part about "material resources") by putting financial barriers in place to those seeking to implement standards. If all software used for Internet access were commercial (or at least had some revenue basis to pay patent licensing fees) this issue would not particularly matter, but a significant amount of the software used on the Internet is either free or open source (the Apache web server being a prime example). Given the vast amount of such software used for Internet-related activities, particularly by lower-budget operations, RAND fees could end up providing a major block to open and free access to the Internet. 3. Only a few countries recognize software patents The W3C's response to this criticism has been that they have had participation in the working group from people in all regions of the world to this point, and they have posted descriptions of software patent law in those countries that have such law. This does not really answer the question, however, of how RAND licensing fees could be required in countries that do not recognize software patents. For software developers outside the U.S., Australia, China, Japan, Korea, Malaysia, New Zealand, Singapore, or Thailand, this rule could cause problems since they would be subject to patent laws of these countries if there is the possibility that any of their software could be distributed or imported in these countries. This would, in effect, give national law in these few countries an international reach. Given the patchwork of laws and the varying legal attitudes regarding software patents at the very least the W3C owes an explanation of what it sees the legal basis for the RAND policy to be. The W3C also needs to explain how licensing might work in international situations. 4. RAND puts smaller developers at the mercy of larger companies RAND stipulates that the charges be reasonable, but when potential licensors range from tiny start-ups run from someone's garage to large companies, how is reasonability to be determined? (The free software issue really represents the extreme end of this question.) The RAND agreement would allow per-use or per-copy charges as licensing requirements, or could require a flat fee for use. However, if a flat fee were charged it would have to remain the same for every entity seeking to license the patent rights, so companies would be unlikely to actually make this an option, or would be forced to make it very expensive (but reasonable for large companies). The use of per-copy or per-use licensing would force the implementation of accounting systems to track these numbers in areas where such tracking has traditionally not been done. This issue needs to be addressed before any RAND policy takes effect because of the potential costs and difficulties involved in adapting the policy to smaller companies. 5. RAND would create a climate of fear Opponents of RAND claim that RAND, by allowing costs to be attached to standards, would make it difficult and uncertain for companies to plan standards implementation since they would not know if or when fees would be levied, and they would be open to allegations of violation of RAND agreements. The so-called "back-door RAND" problem could allow companies to retroactively impose fees on further use of standards that were initially released as royalty free. In addition opponents claim that even though the W3C stipulates that adherence to agreements be made on a "good faith" basis and that members not be required to do extensive searches of patent portfolios, it would be difficult to prove that any lack of compliance was unintentional, so companies would be forced to expend considerable resources to ensure compliance. This would give larger patent-holding companies considerable leverage in their dealings with smaller companies, since the threat of examining whether smaller companies were complying with RAND licensing arrangements would pose the specter of large legal fees that smaller companies might not be able to bear, keeping them out of certain arenas entirely. The W3C, on the other hand, states that RAND is needed precisely to eliminate a climate of fear and uncertainty. They hold that the present situation allows patent holders to hold the standards process and implementation to standards hostage to patents not disclosed early on in the standards-creation process. By making RAND a rule for all companies in the W3C, the member companies would be forced, as a condition of participation in W3C, to make any patents they hold that are used in standards available at a reasonable cost, thus eliminating the need to worry about intellectual property rights and the possibility of one company putting the entire process in jeopardy. It seems that both sides of the argument have valid points on this issue, and it is hard to see how the two sides can be easily reconciled on this issue. Even if the "back door RAND" issue is just a chimera, then the basis for prevention of abuse needs to be explicitly stated before any RAND policy goes into effect. While there may be a legal framework to prevent abuse of the policy the present documents do not make this clear. This issue must be dealt with. 6. Developers might not use patent-encumbered standards Various individuals in their response to the proposed rule have openly advocated ignoring any patent-encumbered W3C standards, and some have gone so far as to suggest the creation of an alternate standards body dedicated to the RF model, should W3C implement the RAND policy. Other, more moderate, writers have acknowledged that starting an alternative to W3C is inherently unlikely, but have worried about the potential that developers would simply ignore RAND standards and "go it alone", leading to the creation of alternate and competing implementation of features on the Internet (like the ongoing feature war between Microsoft and Netscape browsers in which each side adds incompatible features and then lobbies to get its own implementation made standard). At present there seems to be no way to ascertain whether or not this would actually be a problem inasmuch as there are no RAND standards yet and no one has experience with the actual licensing fees and arrangements. The concern expressed by opponents to RAND seems to be substantial, and needs to be addressed by the W3C before any decision is made. Given the serious nature of these objections and the fact that the present policy document does not show that the Working Group has considered these issues, the W3C needs to explicitly address them before any policy goes into effect. (It is possible that these issues were considered in the drafting of the policy recommendation, but they are not apparent at all and a lot of the fury over the subject derives from this fact.) I hope that the W3C will give serious consideration to these issues before any actions are taken. Please do not tar all the serious issues with the same brush reserved for postings by people with no understanding of the issues. Regards, Arle Lommel LISA (Localisation Industry Standards Association) -and- BYU Translation Research Group
Received on Monday, 8 October 2001 10:26:54 UTC