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

No to Unreasonable and Discriminatory Standards

From: Rajendra Shrestha <rajendra@yomari.com>
Date: Wed, 10 Oct 2001 21:45:39 -0400
Message-ID: <3BC4F9C3.40807@yomari.com>
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 GMT

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