RF > RAMMED * Deadline extension? * W3C should serve the PUBLIC interest

To summarize my comments: The comment deadline should be extended.
The Working Draft policy would undermine the creation of widely
available open standards, by providing patent-owning companies the
opportunity to derail the W3C process into channels that benefit their
private interest at the expense of the public interest.  Non-RF
standards would largely preclude open source implementations, such as
the original Web server software written at CERN.  Patents on software
are a dubious concept legally; many are invalid; and the concept does
not exist in most worldwide jurisdictions.  These issues and dangers
are barely mentioned in the draft policy.  The draft policy should be
revised to require RF licensing of all W3C-recommended technologies.

I see from the sudden influx of comments at 
  http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Sep/
that the free software world has woken up to the challenge posed by
this committee of proprietary software companies writing proposed
changes to the W3C standards process.  However, most of the comments
are probably hurriedly made, since they were being written on the last
possible day, with almost no advance notice (that was actually
*noticed* by the affected community).

I hope that the W3C will at least extend the deadline for comments, so
it can hear more closely reasoned comments from all sides on the issue.

RAND terms basically outlaw open source implementations, because they
permit per-user or per-copy fees to be required.  Such licensing terms
are incompatible with open source implementations of the W3C
recommendations, because open source licenses permit each end-user to
make unlimited numbers of copies of the implementation, without
further permission or payment.

It might be legally possible for an open-source implementation to buy
a one-time "buyout" license to the required patents, for all
maintainers and users of their software, if the patent holder was
willing to offer such a license.  But the proposed W3C RAND terms
would require that the exact same one-time buy-out price and terms be
offered to every other implementer without discrimination.  Since
per-copy royalties from licensees of varying success would vary
widely, a "one price fits all" buy-out license would be unlikely to be
offered.  Either it would eliminate the potential gain from the very
high end of the market (receiving a per-copy price from Microsoft, for
example), or if it did not, would be too expensive for the rest of the
market to ever pay.

I understand that RAND terms are common among the national and
international standards bodies.  I've served on standards committees.
I also understand why these bodies are full of fights among
organizations to get THEIR technology adopted as a standard.  It's so
THEY can get the windfall profit from forcing everyone else to license
it.

The companies have rigged the government standards game so that big
companies with big patent portfolios get extra advantages from
standardization.  (Even if a big company has to pay someone else for
one standard, it will be the winner on some other standard.  The
little guys and the non-patent-owning public always pay and never
receive payment.  Thus big companies generally favor forcing the
market to use patents, even though the public interest may not be
thereby served.)

It would be much preferable if, like the AES and DES encryption
standard competitions, and IETF standards today, any participant in
the standards process with a patent is required to license it for free
and unlimited use if it is accepted as part of a W3C standard.  This
gives such donors the first-mover advantage of having set the
standard, understanding it better than others, already having
compatible products in the market, etc.  But it does not make everyone
else in the world pay them for the privilege of using the standard.
This is the RF model.

I believe that "RF" is the W3C policy today, and I believe it should
remain so.  I'd be interested in hearing good reasons to change it.  I
don't see any in the Working Draft.

In fact, the Working Draft points out "Consensus Points" in section 2.2,
but is eerily silent about the points of non-consensus, and about the
motivations behind those points of non-consensus.

Clearly the draft policy goes beyond the Consensus Points, by
advocating that patent holders be granted the option to impose
per-copy fees on users of a W3C standard (if they can manipulate a
standards committee to take such a vote).  But somehow the discussion
of what motivated the PPWG to do so is not part of the public record.

Perhaps there is a hint of commercial interest in this motivation,
perhaps not.  I can conceive of principled positions such as, "W3C
should be able to standardize on good technologies that no company
will give up its patent rights in."  I suspect from the lack of
representation in the PPWG by end-users of standardized products, or
by creators of open-source software that uses W3C standards, that it
was not this principled position that provided the motivation.  But
the whiff of vendor greed isn't the real problem.

Even such a principled position would need substantial factual backing
in order to prevail in an honest argument.  No such backing is
apparent in the Working Draft.  So far the W3C has had no apparent
problem in coming up with technologies that it can standardize and
that do not require payment of patent royalties.  In areas where this
is not true, the best course for the public may be to wait to
standardize, or to encourage freely available research and development
to fill the gap.  As a past example, the Web community invented the
PNG file format, after it became clear that the patented GIF format
was not being made available on RF terms.  As an even earlier example,
there were many proprietary information publishing and navigation
systems such as Compuserve, Dialog, Lexis, and Nexis, but the Internet
community invented a much better open standard (HTTP and HTML), which
has come to serve the public interest with many orders of magnitude more
benefit than the proprietary ones ever did or will.

The document states, "our goal is to affirm the Web community's
longstanding preference for Recommendations that can be implemented on
a royalty-free (RF) basis.  Where that is not possible, the new policy
will provide a framework to assure maximum possible openness...".  The
document does not address the concern that the new policy will
actually undermine the community's longstanding preference for RF
standards, by making an alternative for-pay standards process
available to patent holders.

Under the RF policy, companies still had strong incentives to
contribute technology, even if it would become royalty-free if
selected (the first-mover advantage, etc).  Under the new policy,
companies have less incentive to do so, since if they merely bluster
and threaten long enough, they can force the standards process down a
path that favors their private interest, to the detriment of the
public interest.

The Working Draft also does not explicitly state that all existing
Working Groups have a policy of "RF".  Instead it is silent on what
the policy of existing working groups is, though it requires each
new Working Group to define its policy.

The Working Draft also provides in section 5.3 a policy for changing
the policy of a working group, but there is a huge flaw in it.  If the
working group changes its licensing mode, then "licensing committments
made by Working Group members under the older charter are void".

This means that even when W3C has received written assurances in
existing working groups that any controlling patents will be available
royalty-free, companies can squirm out of these committments by merely
arranging that a majority of (commercial companies in) a working group
vote to change its policy.  Then all those existing assurances blow
away, and each such company is free to charge whatever "reasonable"
fees it likes, despite its earlier assurances.

The dubious nature of many existing and upcoming software patents also
provides a problem that the Working Draft does not address.  Many
software patents are of dubious validity due to pre-filing disclosure
of their method, or due to obviousness to others skilled in the art.
However, at least in the US, the process of contesting such claims is
painful and expensive, since the public is not notified of pending
patents, yet once a patent is issued, it is legally presumed to be
valid.  Suppose that the W3C was interested in standardizing a method
of looking up information about musical recordings, and a company such
as Gracenote, for example, proffered its dubious patents in an attempt
to derail or control such a standard.  It's not clear that the W3C
process contemplated by the Working Draft would be able to essentially
thumb its nose at the patent-holder and say, "So sue us if you're
serious, and we'll get your patents invalidated."  Instead, it might
be forced down some less useful course of action by the mere threat of
patent action by an unscrupulous (or merely misguided or greedy)
patent holder.

A further complication is that many software patents are only valid in
a small number of jurisdictions (principally the IP-lawyer-dominated
United States).  It would be inappropriate to jeopardize a worldwide
standard because of patent issues in a few countries that have
broadly overreaching intellectual property laws.  Instead, a better
course would be for patent holders from those countries to waive their
patent rights in W3C-recommended technology -- which is what the
RF policy does.

To summarize, the Working Draft policy would undermine the creation of
widely available open standards and widely available open
implementations, by providing patent-owning companies the opportunity
to derail the W3C process into channels that benefit their private
interest at the expense of the public interest.  RAND standards would
largely preclude open source implementations, such as the original Web
server software written at CERN.  These dangers are barely mentioned
in the draft policy.  The draft policy should be revised to require RF
licensing of all W3C-recommended technologies.

	John Gilmore
	Entrepreneur and Civil Libertarian
	(Author of GNU Tar, previous maintainer of GNU GDB,
	co-founder of open source company Cygnus Support,
	co-founder of civil rights group the Electronic Frontier Foundation,
	co-founder of the Usenet "alt" newsgroups)
	http://www.toad.com/gnu/

Received on Sunday, 30 September 2001 23:10:29 UTC