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RAND Will Discredit W3C

From: Andreas Pour <pour@mieterra.com>
Date: Sun, 30 Sep 2001 18:27:03 -0400
Message-ID: <3BB79C37.214B4678@mieterra.com>
To: www-patentpolicy-comment@w3.org

With RAND, there will no longer be Open Standards.  Since the licensing
has to be only non-discriminatory only in terms of the amount of the
fee, regardless of anybody's ability to pay, it is quite obvious that
someone can set the royalty payments to high that only vendors with the
highest distribution -- such as the Members involved in the RAND
proposal -- can afford to pay the royalties.  I may remind you of the
famour US Supreme Court comment, "The power to tax is the power to
destroy".  Royalties are a tax.

In effect, then, this proposal stands to legitimize the established
vendors setting "standards" that are "officially" approved yet only they
can comply with.

But that is not an "open standard".  In fact, W3C should do exactly the
opposite:  have a policy that if someone submits a standard to the W3C
they grant a perpetual, royalty-free license to anyone implementing the
standard to use any patent or other intellectual property which covers
the standard, regardless of whether the patent was obtained before or
after the submission and regardless if the patent is then owned or
subsequently acquired.  This should be an automatic license, which the
submitter must agree to in the process of submitting the proposal, or
any part thereof.

Has the W3C been "captured" by big corporate interests now?  Looking at
the membership of the authors of the Working Draft -- Microsoft,
Philips, HP, Apple, as well as two apparently neutral parties -- as well
as the others who helped these authors -- AT&T, HP, IBM, ILOG,
Microsoft, Nortel Networks, The Open Group, Philips Electronics,
Reuters, and Sun -- it does seem that the W3C has been "captured" by
those who can pay the tax, as they appear to be the only ones involved
in this process.  In case the structure of the decision-making wasn't
clear enough, the Overview section unabashedly states:

  ... [M]any *Members* invest significant research
  effort in the development of their own intellectual
  property portfolios, so are concerned about protecting
  and benefiting from proprietary technology they have
  developed or acquired.

Exactly, the Members want to use the W3C to "legitimize" their
proprietary "standards".  Is this really something a standard-setting
body should be concerned with, particularly when patents nowadays are
granted on the most trivial matters?

Despite attempts by the W3C to make it seem like RAND licensing terms
must be non-discriminatory, they patently are not.  In fact, the very
definition of RAND (http://www.w3.org/TR/patent-policy/#def-RAND)
contradicts any concept of "non-discriminatory" licensing, by providing
for reciprocal licenses.  What this means is that the large corporations
don't have to pay each other, but independent parties have to pay them. 
How is this "non-discriminatory"?  Even absent this obvious
"codification" of discriminatory pricing, if the big companies have
patent-sharing agreements in place (either independently of the RAND
proposal or in order to avoid its requirements), there would also be no
need for any of them to pay each other.  So in effect the licensing will
be discriminatory, as the big players will pay no royalties for the
"standard" and small companies/individuals will.

And what exactly is the remedy for an invididual who is charged
"unreasonable" or "discriminatory" fees?  If the individual refuses to
pay "unreasonable" fees, the patent holder can file a claim against the
individual, and I do not see how RAND will be a defense for that
individual (not to mention that in reality the threat of a large company
filing suit against an individual will be enough to dampen the
enthusiasm of all but the most determined).  Not surprisingly, I do not
see a provision in the proposal which renders all current or future
implementors of a RAND "standard" as an intended third party beneficiary
of this provision.  

In other words, the RAND provision is only a condition precedent to a
standard being adopted by the W3C, but there is no provision for
*enforcing* the RAND terms.   I cannot even find a remedy that the W3C
would have against the submitter who violated the terms -- once the
"standard" has been approved, but the submitter charges unreasonable or
discriminatory fees, what can the W3C or the individual do in court to
remedy this violation?  Apparently nothing.  But, as I said, this is not
surprising, why would the companies behind this proposal actually want
these limitations to be enforceable?

It is also patently obvious that once this RAND standard is in place,
the W3C members will favor their patented technologies over true
standard proposals, even if the latter are technically superior.  Since
the companies behind RAND are so influential on W3C (having apparently
completely captured it at this juncture), the W3C can be expected to
just ignore any "free" standard proposals, particularly if the free
proposal competes with a "proprietary standard" submitted by the W3C
membership.  This presents a major conflict of interest for W3C.

The Internet was developed at taxpayer expense, and should remain a
public, democratic utility.  Attempts to have the world's richest and
most powerful corporations control the Internet through W3C "standards"
must fail.  The entire concept that a "standard" can be proprietary is
an oxymoron that seems only to plague the computer software industry.

I highly urge the W3C to reject this attempt by undemocratic parties to
"privatize" the Internet.  If someone wants to make a "proprietary
standard", let them try to do it without the blessing of the W3C.  There
is absolutely no reason the W3C should bless such a standad, because it
in fact is *not* a standard.

Incidentally, looking at who was involved in recommending this proposal,
has someone considered the antitrust implications of the biggest
Internet companies agreeing to impose royalties on using the Internet?

Regards,

Andreas Pour
Received on Sunday, 30 September 2001 18:27:07 GMT

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