- From: Christopher Blizzard <blizzard@mozilla.org>
- Date: Tue, 09 Oct 2001 21:52:19 -0400
- To: www-patentpolicy-comment@w3.org
Introduction
We would like to take the time to thank the W3C for extending the
comment period for this Working Draft. It appeared on our radar
only when much of the other free software community took notice at a
very late time in the comment period. The extension has given us at
mozilla.org the time to review the draft and to mull over what the
suggested changes would mean to our project and to the Web at large
as seen through our eyes. We do have some concerns about the
direction that the W3C is going as expressed through this Working
Draft.
The W3C Mission
We feel that the existence of RAND-based standards endorsed by the
W3C goes against the stated role of the W3C as defined in its
mission statement: ( located at:
http://www.w3.org/Consortium/#mission )
"3. Standardization: W3C contributes to efforts to standardize Web
technologies by producing specifications (called
"Recommendations") that describe the building blocks of the
Web. W3C makes these Recommendations (and other technical reports
freely available to all."
This mission statement item does not make clear whether the use of a
recommendation is free, as opposed to the recommendation being
freely available, but its uses potentially encumbered.
We feel that the existence of RAND-based standards endorsed by the
W3C goes against the stated Design Principles of the Web in the W3C
mission statement: ( http://www.w3.org/Consortium/#mission )
"1. Interoperability: Specifications for the Web's languages and
protocols must be compatible with one another and allow (any)
hardware and software used to access the Web to work together."
and:
"3. Decentralization: Decentralization is without a doubt the
newest principle and most difficult to apply. To allow the Web to
"scale" to worldwide proportions while resisting errors and
breakdowns, the architecture(like the Internet) must limit or
eliminate dependencies on central registries."
The inclusion of patents into the W3C's standards moves the W3C from
being an organization that "promotes and develops its vision of the
future of the World Wide Web" to an industry group that defines
standards to build revenue streams for its Members. None of the
goals of the W3C talk about making money from the infrastructure of
the Web. In fact, the discussion of commerce of any kind is
noticeably absent. The role of the W3C appears to be to help build
technical standards for the Web so that all other forms of
communication and commerce can take place on top of that
infrastructure.
If there needs to be a venue where companies can get together and
create documents that describe their patent-encumbered standards,
they should do that outside of the W3C. The W3C should promote
standards that are truly freely available. This would promote truly
interoperable software and standards and would put the resulting
technologies into the hands of as many people as possible.
Selling Standards Compliance
The direction and deployment of standards requiring the use of "RAND
Licenses" will require a focus on the patent holder rather on the
decentralized forces stated in the Design Principals. Even worse, a
standard including "RAND" Licensed technology could potentially be
tied to the single implementation of that vendor's choosing. (The
RAND license guidelines don't rule this out as near as we can tell.
It only specifies that the license must be available equally to all.
Non-discriminatory licensing might dictate the use of a specific
implementation.)
Vendors might offer to grant patent licenses for those creating
alternative implementations, but might make it inconvenient to
obtain such licenses as compared to licensing the vendor's software
and patent as an integrated package, thus effectively discouraging
the creation of alternative implementations and helping to ensure
that the vendor's own implementation becomes the de facto "standard"
in the marketplace.
If you truly want to allow "(any) hardware and software" to
participate in the Web then we believe that the use of RAND patent
licensing significantly undermines that goal, since the use of
patents that are not royalty free raises enormous, perhaps
insurmountable barriers to broad adoption, particularly for software
licensed under free software or open source software terms.
A standard that is encumbered by RAND Licenses may not be evaluated
in the same way that standards are usually evaluated. In the case
where the patent holder does not allow for more than one
implementation or discourages the creation and use of alternative
implementations in favor of their own, that standard can not be
tested for interoperability. Interoperability is demonstrated by
proof that multiple existing implementations can operate together,
following the standard. The existence of multiple implementations
is up to the licensing policies of the patent holders instead. This
allows licensing policies to affect the technical viability of the
standard itself, which is a sure path to deteriorating standards.
Bait and Switch
Section 5.3 of the Patent Policy Framework also lays out a method by
which the licensing mode of an existing working group can be
changed. As proposed, the mode change renders any licensing
commitments void that were made under the old charter for that
Working Group. This opens the door to a lot of possible abuse in
our opinion and violates the good faith of the members of the
Working Group who participated in a royalty free mode.
Default Licensing Mode
We feel that the fact that any Essential Claims made by Members are
automatically licensed under RAND terms instead of royalty free
terms goes against the principle of least surprise and violates the
spirit of a working group that works together in good faith.
Essential Claims should be licensed under royalty free terms unless
the Member opts out. This is a simple choice.
Patents and the Growth of the Internet
We feel that the Internet and the Web evolved into the mainstream
without the use of patented standards and the statement that "The
second decade of the Web has already demonstrated that patents will
be a factor in the ongoing development of the Web infrastructure" is
an inadequate foundation for the W3C's proposed actions. By
allowing "RAND" licensing, the W3C will eliminate the ability of
individual programmers (except those who are very rich) to develop
and implement standards-compliant software. Standards compliance
becomes possible only for corporate entities who have adequate
patent licensing budgets. This will dissipate the very energies
that ought to be encouraged.
If the W3C endorses the use of patents through the use of RAND
licensing it means that companies participating in the
standardization process will have one more reason to pursue patents
in key Web technologies. This will limit the number of players in
those key Web technologies and could prevent their widespread
adoption in many implementations.
Universal Participation in Standards
A significant goal of many free software and open source projects is
the creation of a freely available implementation of a standard.
For example, mozilla.org's licensing policy includes the use of the
Mozilla Public License ("MPL") which includes a specific,
royalty-free patent grant applicable to the code governed by the
MPL. The proposed policy will make such implementations far less
likely. The proposal would allow the W3C to promulgate standards
that can be implemented only by those with a patent licensing
budget, since even if the royalties for any single RAND license are
relatively small, licensing the entire set of patents required for
real-world products might require substantial amounts of money.
Under this scenario, a W3C "standard" will be out of reach of much
of the development community, and may well be worse than no
standard.
A standard that can't be implemented by free or open source software
projects, but can only be implemented by those few possessing enough
revenue to pay for it, is not an effective standard. The W3C should
not seek to define the future of the Web in a way that inhibits the
development of open source and free software.
Software Patents and International Law
We are also concerned that the RAND licensing proposal threatens the
development of effective, international standards. The extent to
which software can be patented varies a great deal between the
United States and much of the rest of the world. Patents issued by
the United States affect implementors outside the United States, but
this does not make U.S. patent policy an accepted international
policy. Those companies which have the money and are interested in
the U.S. market may well try to implement RAND-encumbered standards.
But there is little reason for governments to endorse or adopt
standards which require payments for a type of intellectual property
recognized primarily in the United States (i.e., software patents).
And those entities (governments, companies, open source and free
software projects and individuals) whose primary interest in the Web
is not focused on the United States will need to evaluate whether
the imprimatur of a W3C standard is worth determining the degree to
which the RAND Licensing purports to affect activities outside of
the United States. The international appeal of a W3C label may be
reduced since (as noted above) there will be parts of the
U.S. development community that will not be able to participate in
the W3C RAND-encumbered standards as well. Recent data suggests
that a great deal of the growth of the Web in the upcoming years
will occur outside the United States. We believe it is unwise to
try and impose a U.S.-centric view of software patents on this
future.
Ambiguity of RAND Licensing Definition
We are also concerned that the "reasonable" in RAND will prove to be
a misnomer. Patent licenses are often very complex documents.
Trying to simplify the required terms, and develop requirements
applicable to the range of settings in which a standard ought be
implemented will be difficult, if not impossible. A few examples
are stated below, many more could be described.
Example 1: Lack of process for determining "reasonable."
We cannot tell if the terms of a RAND License will be reviewed by
the W3C before a technology is included in a Recommendation.
Either answer to this question leads to serious problems. If the
answer is yes, then the W3C will need to become a licensing body,
reviewing terms and payment requirements of the proposed "RAND
Licenses" before technology can be included in a Recommendation.
This will slow the work of the W3C dramatically.
If the answer is no, then we fear a W3C Recommendation will be
significantly devalued. Until the terms of each of the RAND
Licenses required to implement a Recommendation are publicized, it
will be impossible to know the cost of implementing a
Recommendation, or the business practices that will be required to
comply with the applicable set of RAND Licenses ( see Example 4
below for details on this point). It's hard to imagine having any
idea of the value of a Recommendation in this setting; the
Recommendation may be out of reach of much of the development
community at the moment of its creation. And the publication of
the set of applicable RAND Licenses may simply confirm that the
ability to implement a Recommendation is effectively limited to a
small wealthy group.
Example 2: Difficulties in determining "reasonable."
It's nice to believe that "reasonable" can be an effective
standard. But even people who share a common set of referents may
find that they disagree vehemently over what is considered
reasonable in a particular setting. Here are some areas where we
might expect disagreement:
a. Who determines "reasonable?" Does the patent holder
unilaterally set a price? Unilateral price setting could make
sense if the price and terms are disclosed before the
Recommendation is complete, and factored into the determination of
whether to include something in a Recommendation. But
promulgating a Recommendation that requires a patent license to
implement, and then allowing the patent holder to unilaterally set
the price is a recipe for disaster.
b. What criteria go into determining a "reasonable" price? Is a
reasonable amount that which would allow the licensor to recover
its costs in a set period of time? Or perhaps an amount that
would allow the licensor to obtain a certain return on investment
in a set period of time? If so, would this be the type of return
the venture capital community generally looks for, or a return on
investment found among more mature companies? Taking a different
tack, might a "reasonable" amount be that which approximates the
value of the technology to the Recommendation? Who determines
this? What happens if the cost of developing the patented claims
is high, but the patent affects only a small piece of the
Recommendation?
c. If a reciprocal patent license is required, does its scope
affect the amount which would be "reasonable?"
d. Is the "reasonableness" of the payment amount affected by the
more limited scope of software patents outside of the United
States? If so, how is it applied in a non-discriminatory manner?
Example 3: Limits on incremental improvements to a Recommendation.
Point 3 of the definition of "RAND Licenses" states that such a
license
"3. may be limited to implementations of the Recommendation, and
to what is required by the Recommendation;"
This sounds simple and "reasonable" but leads to problems. Assume
Company A pays Company B for a "RAND License" to a set of
Essential Claims. Company A then develops an "improvement" to the
Essential Claims which have been licensed. That is, Company A
creates an invention that builds upon, but is separable from the
Essential Claims it licensed. Does Company A have the ability to
implement its improvement? Perhaps not. It may be that "what is
required by the Recommendation" doesn't include the improvement,
so the "RAND License" doesn't include it, and nothing in the
proposal requires Company B to be reasonable in its response.
Company A is paying for the right to implement a Recommendation,
and has still been effectively precluded from innovation. Now
assume Company B develops this improvement. As far as we can
tell, company B has no obligations regarding the improvement.
Company B is now in the setting where its "RAND License" is
required to implement a standard, and where improvements to that
technology can be subject to unreasonable, discriminatory
licensing practices. We could be heading for a situation where
the W3C promulgates standards that when they are included in
future products, even those created by other people, can only be
implemented only through additional payments to the initial patent
holders.
Example 4: Potential effects on business and distribution models.
Point 6 of the definition of a "RAND License" states that such a
license "...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."
This may sound non-controversial, but raises a set of problems,
which we'll illustrate using the audit provision. Audits are used
to determine that the correct amount of fees have been paid. For
an audit to make sense, there must be some soft of tracking
requirement in place. A payment requirement of $XXXXX.xx per
quarter might not require an audit. But payment terms of $X.xx
per copy would require knowing a number of copies, and an audit
requirement would make more sense here. So if an audit is
permissible in a RAND License, we can assume that a requirement to
track the number of copies of a product may be required. This
sort of tracking obligation may impose restrictions on the
behavior of a licensee. For example, suppose the patent holder
determines that a "reasonable" fee is a per-copy fee, of $X.xx per
copy distributed. Not all implementors of a standard count the
number of copies that are distributed. This might be true of
those that permit anonymous downloading of software from mirror
sites, permit copying after download, and also those open source
and free software projects that provide freely downloadable source
code. The "reasonable" per copy fee could have the effect of
requiring such entities to change their entire method of
distribution. This required change of business and distribution
model might be fine in settings where people individually
determine that a technology is worth it to them. We feel strongly
that it is inappropriate to be forced into a predetermined
business and distribution model in order to implement a W3C
Recommendation.
The Fast Pace of Technology or "Standing on the Shoulders of Giants":
This statement is made in Section 2.2 of the Working Draft of the
W3C Patent Policy Framework
(http://www.w3.org/TR/2001/WD-patent-policy-20010816/#sec-response)
"* Importance of interoperability for core infrastructure, lower
down the stack: 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 an RF
basis. Recommendations addressing higher-level services toward the
application layer may have a higher tolerance for RAND terms."
The policy framework does not define where the division points lie
on the stack. Are HTTP and HTML at the top or at the bottom of the
stack? Depending on where you stand those could be at different
levels of "the stack."
How a piece of technology is looked at on that stack is only a
function of time. What is considered basic infrastructure at the
bottom of the stack at one point in time might have been considered
at the top of the stack years or even months previously. For
example, we would consider a browser to be pretty low on the stack
considering what people have built on top of just a browser.
However, a more strict interpretation of this statement in the frame
of the OSI model would include a web browser at the top of the
stack.
W3C Recognition of Patents
Despite the concerns we've expressed above, we feel that there must
be some good things that can come out of this patent work that the
W3C is exploring. For example it's good to see a written
requirement that patent claims are to be stated up front by Members
before a Working Group is created. The Members of that Working
Group are giving rights by participating in that working group.
This is a good step in the right direction, whether or not the W3C
chooses to support RAND licenses. Even if the W3C chooses not to
support RAND licenses we would personally love to see the W3C
require that any Members grant royalty free licenses before working
in a Working Group. The Patent Policy Framework states that there
have been royalty free patents in the past with regard to W3C
standards. Why not make this doctrine instead of opening the door
to non-free patents that restrict development and deployment?
Conclusion
Simply put, we feel that the proposed changes in the way that the
W3C operates threaten the organization that we have turned to in the
past as the arbiter of standards for the Web. The W3C is a resource
for those groups who want to create a standard that will allow
multiple implementations to interoperate. With the addition of
patents into that mix, the standard's merit is no longer the
important factor in determining how that standard is used and who
can use it. Instead, the effective power to make that determination
moves to the patent holder. This limits the creative ways in which
existing standards can be reused in new and interesting
implementations. This means that the effective power to determine
the direction of the Web and the Internet is in the hands of the
patent holders instead of the standards bodies and the implementors
of those standards. This fact itself undermines the entire purpose
of having a standards body. The alternative is having corporations
choosing a direction for the Web for their own benefit at the
expense of its users: the general public.
We hope that the W3C Working Group and the Director will take these
comments into consideration when considering this Patent Policy
Framework. Thank you.
The views expressed herein are the view of the named individuals and
do not necessarily represent the view of the employer of any
signatory.
Mitchell Baker <mitchell@mozilla.org>
Christopher Blizzard <blizzard@mozilla.org>
Frank Hecker <hecker@mozilla.org>
Daniel Nunes <leaf@mozilla.org>
Dan Mosedale <dmose@mozilla.org>
Gervase Markham <gerv@mozilla.org>
Myk Melez <myk@mozilla.org>
Brendan Eich <brendan@mozilla.org>
Dawn Endico <endico@mozilla.org>
Asa Dotzler <asa@mozilla.org>
Mike Shaver <shaver@mozilla.org>
--
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Christopher Blizzard
http://people.redhat.com/blizzard/
Mozilla.org - we're on a mission from God. Still.
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Received on Tuesday, 9 October 2001 21:54:01 UTC