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Don't drown the spirit of generosity.

From: Rory Ewins <rory@speedysnail.com>
Date: Thu, 11 Oct 2001 13:39:11 +0100
Message-Id: <a05100303b7eb224db8c6@[194.81.244.110]>
To: www-patentpolicy-comment@w3.org
Thank you for the opportunity for public comment on your 16 August 
2001 Working Draft. I write as an academic with an interest in the 
intellectual property issues surrounding the web, and as a 
web-designer who has confronted some of those issues directly in site 
development over recent years. (The comments below represent, of 
course, my personal opinions, and not necessarily those of my 
employers past or present.)

All of us know that the Web was built on a gift: on work that could 
have been patented, but was instead given to the world. Without that 
act of generosity it's doubtful whether the Web would have come as 
far as it has. I'm concerned that countless small acts of 
self-interest, incorporated into future W3C Recommendations in the 
form of patents, could drown out the original spirit of generosity 
that is so important to so many of us who use and build the Web.

After reading your draft and various third-party responses to it in 
recent weeks, I recognise that your development of this policy is an 
attempt to address existing problems in a way that aligns as closely 
as possible to 'the Web community's longstanding preference for 
Recommendations that can be implemented on a royalty-free basis'. I 
also acknowledge that it must be frustrating to receive hundreds of 
objections at the eleventh hour to a policy that has been arduously 
developed over many months. Nevertheless, I must add my voice to the 
list of critics.

My first concern stems from your statement of the 'Larger Role of 
Patents on the Web Landscape' (2.1). Your list of patent-related 
trends - convergence, rise in patent issuance, etc. - will be 
familiar to anyone who has followed these issues in recent years. But 
the conclusions you have drawn about where these trends will lead - 
for example, 'the tradition of patenting technology from [the 
telecommunications, broadcast media and consumer electronics] 
industries will likely be carried over to the Web' - are debatable, 
and not at all proven. Patent offices may be issuing patents at 
record rates, but there is no certainty that they will continue to do 
so; the very recognition of this fact in the software community has 
already prompted challenges to their unseemly haste. Non-computing 
industries, most notably the entertainment industry, have certainly 
sought to extend their interpretations of intellectual property into 
the Web, but despite some successes have met opposition at every 
turn, and could well continue to. The battle is not over yet.

My fear is that by inviting patents into the W3C Recommendation 
process, even in a heavily circumscribed form intended to prevent 
last-minute surprise claims by Members acting in bad faith, the W3C 
could make these prophecies of a litigious, patent-filled future 
self-fulfilling. The struggles over patents may simply move to the 
start of the Recommendation drafting process rather than the end; and 
in the meantime, the W3C will have sent the message that patenting 
key Web technologies is acceptable. The question of what exactly 
constitutes 'bad faith' immediately becomes much more vague and 
contestable.

The alternative is for the W3C to accept that some parties will 
occasionally act in bad faith and cause headaches in the drafting 
process, but to send a clear message about such behaviour by 
rejecting patents as part of W3C Recommendations. The very existence 
of your 16 August 2001 Working Draft suggests that such an outcome is 
unlikely, and that patents in some form will become part of future 
Recommendations. I can't help feeling that if they do, the moral 
authority of the W3C to insist on royalty-free Recommendations, or 
even a 'preference' for them, will be weakened - perhaps not 
immediately, but increasingly over coming years as more and more 
patents become incorporated into Web standards.

The proposed RAND licensing of patents within Recommendations 
attempts to address some of these concerns, but raises others. The 
concept of 'reasonable, non-discriminatory royalties or fees' is a 
weak link: what appears reasonable to a large corporation can appear 
wholly unreasonable to a small web-design company or private 
individual. Given that even the most modestly-priced shareware never 
attracts payment from all of its users, it is hard to imagine any 
definition of 'reasonable' that will satisfy the entire 
web-development community; as soon as royalties become an inescapable 
part of the web-design landscape, part of that community will be shut 
out. The threat is perhaps not so much from any single royalty 
payment as from the prospect of dozens or hundreds that add up to a 
considerable financial burden, whether paid directly one-by-one or 
indirectly through higher-priced web-development software or hosting 
fees.

The Working Draft, again, attempts to limit this potential impact by 
allowing RAND licences only when it is 'not possible' for Members to 
adhere to the 'preference' for royalty-free terms. This leaves 
another door open to those Members who would wish to advance their 
own interests, as it would appear that they will be the ones who 
determine whether or not it is 'possible' to contribute royalty-free 
elements to Recommendations. Is it too suspicious to imagine that 
many of them will say, more often than not, that it isn't?

My final concern is about our all-too-human inability to predict the 
future. I have already suggested that this Draft may be an 
over-reaction to a patent-filled future that may never come to pass. 
But I'm also concerned that we have no way of predicting with any 
certainty which of today's Recommendations will become the essential 
foundations of tomorrow's Web (the 'lower-layer infrastructure [that 
should] be implementable on an RF basis'), and which will be the 
'higher-level services' that 'may have a higher tolerance for RAND 
terms'. It is quite possible that a Recommendation implemented on a 
RAND basis in 2001 might be an inescapable part of the Web of 2011, 
condemning every designer and developer to paying royalties in some 
form; we have no reliable way of knowing what the next 'killer app' 
web standard will be.

Today's luxury is tomorrow's necessity. Having just moved to a 
country that persists with an outdated 1950s policy of charging 
substantial licence fees for television sets, I would hate to see the 
Web start heading in the same direction. Our aim should be to remove 
any barriers to its use, including its design and development - not 
to encourage those who would erect them.


Rory Ewins
Received on Thursday, 11 October 2001 08:39:07 GMT

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