- From: Rajendra Shrestha <rajendra@yomari.com>
- Date: Wed, 10 Oct 2001 21:45:39 -0400
- To: www-patentpolicy-comment@w3.org
Thank you for extending the deadline to comment on W3C's new patent policy. In your summary, you list three of the main changes that will be implemented in future W3C standard-making process if your proposal is passed. I whole-heartedly agree with the first two (specifying patent licensing requirements in all charters; disclosures of all relevant patents by members before the standard is finalized). However, like 99.9% of the people who have commented on this, I forcefully object to your third proposal (commitment to RAND licensing term). Before I expand on my objections, I'd like to get rid of this "RAND" term, which is an obvious misnomer. "RAND" licenses, esp. as applied to Web standards, are neither reasonable nor non-discriminatory. Since this proposal was written by a bunch of IP lawyers from big multinationals, I understand their need to use an euphemism to describe what is essentially an attempt to allow their companies to monopolize the Web. However, for the rest of us, referring to the proposed licensing scheme as "RAND" would be handing these companies a PR victory. The proposed licensing scheme is Unreasonable and Discriminatory, and as such, I am going to refer to it as the UAD (Unreasonable and Discriminatory) licensing scheme. 1. Unreasonable - Who defines what is reasonable? If some part of a W3C standard is patented by a company, who gets to decide the terms of the license? The patent holder? The W3C? The government (which one)? The courts (again, which one)? Some aliens from outer space? The document does not clarify this. What is "reasonable" lies in the eyes of the beholder. What is reasonable to AOL, Sun or Microsoft will certainly not be reasonable to an independent developer, or to a company based in Burkino Faso. For Free and open-source developers, the only "reasonable" patent license would be one that would let them use it royalty-free without any other restrictions. But then, this is what the RF licensing scheme already is. Maybe a patent holder could grant different license terms to an open-source developer, a small company in the Third World and to an American company. But then, your proposed scheme would not allow it. Even if it did, it would be discriminatory, so would violate the second part of the so-called "RAND" license. 2. Discriminatory - For Web standards, any patent licensing scheme other than royalty-free with no other restrictions would be inherently discriminatory no matter how loud the American IP lawyers claim otherwise. It seems the lawyers who wrote this proposal think that there are nobody other than big Western companies doing Web development. Well, they should use the Web a little bit more themselves. They would find that there are thousands of open source developers all over the world developing free implmentations of Web standards. They would find that there are millions of users in developing countries using the Web, and there are thousands of small buisnesses and non-profit organizations in such countries who are using the Web to break down the technology divide between the rich and poor nations. Any attempt to impose licensing fees and restrictions on them would be rightly seen as an attempt by big American multinationals (and, by extension, the governments supporting them) to unfairly maintain this "digital divide". Leaving asides the philosophical arguments above, from a practical standpoint, here is the most discriminatory part of this proposal - it would discriminate most against individual and open source developers in the United States. Here is why. Most companies outside the USA will just ignore these patent license restrictions. Since software patents is not legal in most countries outside the USA, companies (and individuals) outside America will simply ignore them and continue to build applications using the patented standard without conforming to the license requirement. Maybe the US patent holder can sue some big companies in Europe or East Asia (assuming they find a legal loophole to enforce their patents overseas), but that risk will be minimal for most (if I had a small company in Vietnam, would I even stop one minute to consider if what I was doing would violate some American patent? of course not!). So, the practical effect of this would be that the only ones who would be discriminated against would be individuals and open source developers in America. Maybe this is exactly what all these big companies want. They don't care what a programmer in Vietnam does. But they don't want developers in America creating free programs to compete with them! Therefore, implementing this proposal would mean that the W3C would be developing Unreasonable and Discriminatory standards. That can only mean one thing - the irrelevance of W3C iteself. What this saga illustrates is the need to change W3C to, or create a rival organization, that is truly representative of the Web so that whatever standards are developed are open and free to all in the true sense of their meaning (and not in the twisted meaning of some over-paid lawyer). Rajendra Shrestha
Received on Wednesday, 10 October 2001 21:47:19 UTC