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

Risks to content (digital rights management) in proposed framework

From: Andy Oram <andyo@oreilly.com>
Date: Wed, 10 Oct 2001 09:06:32 -0400 (EDT)
Message-Id: <200110101306.f9AD6WU07960@smtp2.oreilly.com>
To: www-patentpolicy-comment@w3.org
Previous complaints about the proposed Patent Framework have
focused on its possible restraint of development in
technology, protocols, applications, etc. No complaint I
have yet seen points out the dangers of the proposed
framework for content control.

The concepts of fair use (allowing users to reuse material
for legitimate educational purposes, commentary, and
criticism) and of derivate works (allowing users to add
value to information through adding to it innovatively) are
threatened by current trends in digital rights management.
As W3C members undoubtedly know, DRM has weaknesses that
require it to be bolstered by laws like the Digital
Millennium Copyright Act (DMCA) that lead to heavy-handed
restrictions on the distribution of software and
information.

I believe it to be critical that the World Wide Web not put
in place a DRM system that cuts off fair use and derivative
works. Yet the proposed Patent Framework could do so as
follows:

1. Someone can invent a file format and protocol that
   contains the kinds of DRM the content providers have been
   talking about for years, while patenting the key features
   that enforce the rules on viewers.

2. The format and protocol get adopted as specifications.

3. Content providers pay software companies to create
   browsers and servers that accommodate the format and
   protocol. Licensing ensures that all systems preserve
   the intended controls. (Licensing need not, however,
   prevent systems from over-reaching the restrictions or
   removing ancillary user rights.)

4. Anyone developing an alternative server or browser gets
   sued for patent infringement, in addition to any criminal
   penalties imposed by the DMCA or the recently proposed
   Security Systems Standards and Certification Act (SSSCA).

We already see content providers imposing controls on users
such as making it difficult to save a document to disk or
even cut and paste a few words, trying to force users to
come through a home page instead of using deep links, and
tracking user behavior in order to build a profile for
advertising. These and other questionable practices could
become quickly enshrined in Web protocols and file formats
if the W3C adopts the proposed Patent Framework.

The problem cannot be solved by tweaking. It doesn't help
for the proposal to say that the "core Web infrastructure"
should remain on a royalty-free basis--the damage is done by
the license itself, not by royalties. Furthermore, the
damage can occur outside the "core" on the application
layer.

Nothing in the proposed framework allows independent
developers to access the new formats without keeping the
controls. If the stated purpose of a system is to limit
use, a license requiring such controls would ipso facto be
considered "reasonable" and "non-discriminatory."

I understand that, if the Web is to stay free, we must still
face the problem of how to work around pre-existing patents
taken out by corporations or individuals who are happy to
hold the technology ransom and feel no loss if the
technology never becomes a W3C recommendation. We may have
to rely on moral exhortation and facing down the opponent in
these cases; luckily, a large percentage of innovations stem
from government-sponsored or public research (although the
rush of universities toward patents and commercial
partnerships threatens this too).

Andrew Oram
Member, Computer Professionals for Social Responsibility
Editor, O'Reilly & Associates
(This comment represents my personal opinions only)

O'Reilly & Associates
90 Sherman Street
Cambridge, MA 02140-3233       
617-499-7479
andyo@cpsr.org
Received on Wednesday, 10 October 2001 09:08:53 GMT

This archive was generated by hypermail 2.2.0+W3C-0.50 : Tuesday, 27 April 2010 00:13:42 GMT