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W3C Patent Policy Framework Comment

From: Adam Warner <lists@consulting.net.nz>
Date: 29 Sep 2001 01:52:37 +1200
To: www-patentpolicy-comment@w3.org
Message-Id: <1001685157.3684.13.camel@work>
Dear W3C Members,

I have prepared a document dicussing the W3C's Patent Policy Framework
that is available on my web site at:

http://www.openphd.net/W3C_Patent_Policy/draft.xhtml
(Plain/print version)

and

http://www.openphd.net/W3C_Patent_Policy
(Web site version)

I have also included the document below in the event that my web site
becomes inaccessible.

Please give the issues I have raised careful consideration.

Regards,
Adam Warner



W3C and the Promotion of Fee-based Standards for the Web
Adam Warner

On 16 August 2001 the W3C made public a proposal to substantially change
their patent policy framework. Amongst the changes is support for a new
licensing model (called RAND) that legitimises the W3C's role in
developing and promoting standards that could require the payment of
royalties.

This is a substantial shift in the philosophical direction of the W3C
and should be of extreme concern to anyone who values being able to
implement W3C standards in a royalty-free manner. In particular this has
profound implications for the support and implementation of future W3C
standards by the free software community. It is likely to extinguish
free software development and deployment in the areas where the payment
of royalties is required.

The last call review period closes on 30 September 2001 (two days from
the time I am writing this abstract). The W3C is aware of the importance
of this issue and states "As the policy has ramifications on the Web
community at large, and as the Web Community have consistently helped
W3C in its efforts, views from this diverse community are essential."[1]
However, as evidence of how well this issue has been publicised, only
two relevant public comments have been made to the W3C archive to date.
It is a matter of urgency that you make your views known. A final policy
is expected from the W3C by February 2002.

Please email all comments or suggested corrections to this document to
comment@openphd.net.

This draft is copyright Adam Warner, 28 September 2001. It may be
distributed freely.

Table of Contents

    An Overview of the W3C

        W3C Recommendation Process
    RAND Licensing

        Legitimising RAND
        Back-door RAND
        RAND in Action
    What You Can Do
    Essential Reference


An Overview of the W3C

The World Wide Web Consortium (W3C, http://www.w3.org) has been highly
successful to date in its pursuit of "leading the Web to its full
potential". It actively promotes vendor neutral open and universal
standards. Its membership is to be commended for its ability to achieve
consensus and coordination with other standards bodies and consortia.

The W3C has over 500 member organisations and approximately 66 full-time
employees. Even large and influential companies have only one vote at
the Advisory Committee level.

Tim Berners-Lee, the Director of the W3C
(http://www.w3.org/People/Berners-Lee) is also the inventor of the World
Wide Web. The W3C is a distinguished organisation producing quality
specifications, guidelines, software and validation tools.

The W3C is involved in these important areas:

    * The architecture domain (e.g. DOM, the Document Object Model).
    * Document formats (e.g. HTML, mathematics and graphics).
    * Interaction (e.g. multimedia).
    * Technological and societal issues (e.g. privacy, encryption and
the legal issues).
    * Web accessibility initiatives (e.g. for user agents and authoring
tools).

Crucially the work of the W3C is available to all.

The W3C has an ongoing role in the development of the World Wide Web
from purely static document hosting to dynamic documents, application
services and automated applications.
W3C Recommendation Process

The W3C recommendation process typically follows a five step procedure:

    * Interested parties submit notes to the W3C.
    * A working draft is produced (these typically come with big
disclaimers, and their citing as anything other than work in progress is
inappropriate).
    * Candidate recommendations are made.
    * A recommendation is proposed (this means the working group has
reached consensus and the work has been proposed by the Director to the
Advisory Committee for review).
    * Recommendation. These have been ratified and can be relied upon to
not change.

The W3C's Patent Policy Framework is at the Working Draft stage. The
Working Draft plainly states: "This Last Call period will be the only
opportunity for public comment."[2]

Remember that "The Last Call period closes 30 September 2001."

Furthermore, "As we have begun to use portions of the policy in the
day-to-day operations of W3C, we plan to skip the Candidate
Recommendation and move directly to an Advisory Committee Review of a
Proposed Recommendation draft." Later in this article I will show some
of the consequences of this in the release of the Scalable Vector
Graphics (SVG 1.0) Recommendation.


RAND Licensing

This is the new licensing model the W3C is proposing that will allow for
non-royalty-free standards to become W3C sanctioned recommendations.
RAND stands for "Reasonable And Non-Discriminatory" terms. "RAND means
that someone may or may not need to pay a fee, and that it is at the
discretion of the license holder."[3]

In essence it requires that any company that imposes licensing
restriction must impose those restrictions uniformly (the
non-discriminatory part of the definition). It appears to follow that
non-commercial organisations cannot be given any preferential treatment
over commercial organisations since that would be discriminatory
licensing.

The Working Draft (http://www.w3.org/TR/patent-policy/) (reproduced in
the Patent Policy Frequently Asked Questions,
http://www.w3.org/2001/08/16-PP-FAQ) also states that RAND allows for
licensing audits (RAND "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.")


Legitimising RAND

The W3C states that "Recommendations addressing higher-level services
may be appropriate for licensing on reasonable and non-discriminatory
(RAND) terms." It is clear that "patent processes will increasingly
affect the Web. These factors make it clear that the W3C must have an
effective policy to address the inevitable increase in patent issues
that will come before the W3C Membership and the development community
as a whole." What isn't clear is that the appropriate response is for
the W3C to condone RAND licensing terms and to actively promote non-free
licenses.

As part of the theoretical underpinning of this new policy we are told:
"On the other hand, there are other technologies, typically higher
level, where it might be appropriate to accept fee-bearing requirements
in a Recommendation. It is worth restating that, as of today, W3C is not
aware of any fee-based license required for any of its Recommendations.
Thus, there is an established history of RF [Royalty Free]."

This distinction between lower and higher level technologies appears to
be somewhat arbitrary and misleading. Any technology that becomes
sufficiently used on the World Wide Web will become a part of everyday
infrastructure. For example it might be considered that a moving picture
format is sufficiently high level for RAND licensing to be appropriate.
But if that moving picture format becomes an integrated baseline
technology in future products then the chance of a future fee being
associated with that technology could be devastating.[4]

The W3C has recognised the pressures from (some of) its members to be
able to exploit the potentially lucrative Internet-related patents they
have been accumulating. There appears to be a resignation that it may be
better for the W3C to promote standards that have non-free conditions
attached rather than to receive no consensus on potential
recommendations.

However by doing this the W3C is diminishing the significant tool they
have to encourage royalty-free licensing: their official stamp of
approval on Internet technologies and credit to the companies that
provide those technologies. The support of the W3C is an important
factor for a web-based standard to achieve dominance. A company might be
willing to provide their intellectual property on royalty-free terms to
receive W3C approval and thus an increasing chance for their sponsored
standard to become widely adopted. Now those same companies may think
they can get the best of both worlds: A W3C recommendation and the
reserved right to charge licensing fees in the future.

The prospect of future fees could also have a chilling effect upon
free/open source software development. Standards that require licensing
fees to implement are, for obvious reasons, totally incompatible with
the use of free software. If the free/open source software communities
will not be able to rely upon the W3C to pursue royalty-free standards
the question has to be raised whether the support of a new institution
is appropriate. Given my admiration for all the W3C has contributed to
the development of the World Wide Web this would be a tragic
development.


Back-door RAND

If an Advisory Committee Representative to the W3C (each member
organisation of the W3C has an ACR) fails to respond to requests for
patent disclosures by default "they will commit their Member company to
license all Essential Claims needed to implement W3C recommendations on
at least RAND terms. This is true whether any personnel from the Member
company participates in a WG or not."

This means oversight, negligence or perhaps deception is rewarded by
requiring the commitment to a RAND license rather than a royalty-free
one. If a relevant patent was disclosed at the appropriate time it might
have been worked around, or the working group may have even disbanded.
For members to face a financial incentive to disclose there should be a
deterrent in the form of royalty-free licensing. Few things would be
more lucrative than being entitled to charge RAND fees on an established
W3C web standard though a simple oversight.
RAND in Action

Even though RAND is only a Working Draft and public comment has for the
first time been solicited (and very shortly closes) the W3C has already
begun using RAND in its day-to-day operations. This can be seen in the
recently released Scalable Vector Graphics Standard (SVG 1.0):
http://www.w3.org/2001/07/SVG10-IPR-statements.html

Apple, IBM, Eastman Kodak and Quark have all only been willing to supply
their intellectual property or potential future intellectual property
under RAND licensing terms. This means that in the event that one of
their patents overlap the SVG specification they have reserved the right
to start charging royalties or set other licensing restrictions upon a
non-discriminatory basis.

Presently the SVG specification is free to use. The uncovering of a
favourable patent or a legal reinterpretation could change that. For
example it is stated: "Kodak does not believe it currently has any
essential claims that fall within the specification of the
Recommendation as currently understood and interpreted by Kodak for
implementors of SVG. However, Kodak hereby identifies U.S. Patent
5,459,819 and affirms that in the event that any claim of this patent is
interpreted as an essential claim within the specification of the
Recommendation in its current or later amended form, Kodak agrees to
provide a RAND License as set forth in the previous paragraph."

The significant change here is that Kodak (as a particular example) are
not giving standards users an assurance that they will be able to
continue to use SVG on a royalty-free basis in the future. A windfall
judgement and we could have a problem of GIF-style proportions--even
though SVG is a W3C sanctioned standard and the company potentially
doing the enforcing helped create the standard for people to freely use
in the first place. Users could feel far more secure that SVG will
remain a free standard if for example Kodak said that in the event that
any claim of their patent is interpreted as an essential claim within
the specification of the Recommendation in its current or later amended
form, Kodak agrees to provide a royalty-free license.
What You Can Do

   1. As a matter of urgency, send a comment to
www-patentpolicy-comment@w3.org before 30 September 2001. You can check
out the current archive of responses here:
http://lists.w3.org/Archives/Public/www-patentpolicy-comment/.
   2. Spread the word about this issue as soon as possible.
   3. Ask companies that are members of the W3C to give an undertaking
to only support the development of royalty-free standards. This will
require significant change to the Working Draft of the W3C's Patent
Policy Framework.
   4. Do you have a professional relationship with any of the authors or
companies of the Working Draft? If so it may be appropriate to send a
message to the relevant organisation. These are the listed authors of
the Working Draft:
          * Michele Herman, Microsoft, micheleh@microsoft.com
          * Scott Peterson, Hewlett-Packard, scott_k_peterson@hp.com
          * Tony Piotrowski, Philips, tony.piotrowski@philips.com
          * Barry Rein, Pennie & Edmonds (for W3C), barry@pennie.com
          * Daniel Weitzner, W3C/MIT, djweitzner@w3.org
          * Helene Plotka Workman, Apple Computer, plotka@apple.com

      It is also stated here: http://www.w3.org/2001/08/patentnews that
"W3C Members Apple, AT&T, Hewlett-Packard, IBM, ILOG, Microsoft, Nortel
Networks, The Open Group, Philips Electronics, Reuters, and Sun worked
on this draft together with W3C Team members."

Essential Reference

W3C Patent Policy Framework, W3C Working Draft 16 August 2001:
http://www.w3.org/TR/patent-policy/

Backgrounder for W3C Patent Policy Framework:
http://www.w3.org/2001/08/patentnews

Patent Policy Frequently Asked Questions (FAQs):
http://www.w3.org/2001/08/16-PP-FAQ

SVG 1.0 Patent Statements:
http://www.w3.org/2001/07/SVG10-IPR-statements.html

Notes
[1] http://www.w3.org/2001/08/patentnews
[2] http://www.w3.org/TR/patent-policy/
[3] http://www.w3.org/2001/08/patentnews
[4] For example, a scenario where the majority of future web appliances
included this decoding ability in their ROM.
Received on Friday, 28 September 2001 09:52:58 GMT

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