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

"Non-discriminatory" commercial licenses impossible

From: Adrian Tymes <atymes@findlaw.com>
Date: Mon, 08 Oct 2001 11:38:24 -0700
Message-ID: <3BC1F2A0.1020801@findlaw.com>
To: www-patentpolicy-comment@w3.org
I respectfully submit that it is, in most cases, simply impossible to
have a "non-discriminatory" licensing scheme for software patents that
charge any amount of money.  My reasoning is as follows:

* If a license charges a fixed fee per user (or copy, or site, or
   whatever), this necessarily discriminates against free software:
   software can not be free by definition if its users must pay to use
* If a license has an exemption for free software, this is
   discriminatory against non-free software, again by definition.  In
   addition, certain commercial interests could "seperate" their software
   into two pieces that will not work without each other, where one
   (freely available) contains the licensed part and the other (which
   must be purchased or leased) does not, thus subverting the entire
   intent of the license (and possibly forcing a reversion to "fixed fee
   per user" if the patent holder is to get any money, thus forcing the
   patented invention out of free software).
* If a license charges a percent of sales or similar, so as to
   apply the same definition to everyone but in effect remain free
   for free software, its practical effect is as per the second

In addition, platform vendors such as Microsoft will be even harder
pressed to come up with non-discriminatory licenses, other than "free
for everyone".  No matter what they charge, their own developers will
be able to come up with products that use the license essentially for
free (their developers' licensing fees are but account shuffling within
Microsoft), whereas everyone else will have to pay the license fees out
of pocket, most likely passing these costs on to their own customers.

Therefore, allowing "reasonable and non-discriminatory" patent licensing
will have the practical effect of W3C standards being subject to
discriminatory licenses, and perhaps unreasonable as well: if perfect 
compliance is impossible, then compliance beyond lip service may seem to 
be an unnecessary waste of resources (and falsely perceived as a loss of
income, ignoring - as many companies seem to do - the fact that
reasonable licenses will be more widely purchased licenses).  This will
make said standards of less value to developers, possibly to the point
where they become largely ignored.  These developers will then take less
interest in refining the "broken" processes, leading to the W3C's
eventual irrelevance.  I, and many others, would prefer that this not
Received on Monday, 8 October 2001 14:39:39 UTC

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