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Proposed W3 Consortium "Royalty-Free" Patent Policy is inconflict with the GPL !!!

From: Scheepens <s.scheepens@myrealbox.com>
Date: Thu, 12 Dec 2002 08:05:07 +0100
To: www-patentpolicy-comment@w3.org
Message-ID: <1039676707.c7234ea0s.scheepens@myrealbox.com>

I STRONGLY URGE THE W3C TO RECONSIDER IT'S "Royalty-Free" Patent Policy !!!!!

FSF's Position on Proposed W3 Consortium "Royalty-Free" Patent Policy

25 November 2002
(updated 4 December 2002)

[image of a Philosophical Gnu]
[ English ]
Our Position

The Free Software Foundation, represented by its General Counsel, Professor Eben Moglen of Columbia University Law School, participated in the W3 Consortium Patent Policy Working Group from November 2001 through the current Last Call draft. The Foundation regards the current Last Call draft, which proposes the adoption of a "royalty-free" or "RF" patent policy, as a significant step in the direction of protecting the World Wide Web from patent-encumbered standards. But the proposed policy is not an adequate final outcome from the Foundation's point of view.

The proposed policy permits W3C members participating in W3 technical working groups to commit their patent claims "royalty-free" for use by implementers of the standard, but with "field of use" restrictions that would be incompatible with section 7 of the GNU General Public License. Such "field of use" restrictions, in other words, would prevent implementation of W3C standards as Free Software.

Section 7 of the GNU GPL is intended to prevent the distribution of software which appears to be Free (because it is released under a copyright license guaranteeing the freedoms to use, copy, modify, and redistribute) but which cannot, in fact, be modified and redistributed because of patent license restrictions that limit the use of patent claims practiced by the software to a particular purpose. Though other Free Software licenses may not happen to contain provisions equivalent to GPL's Section 7, this does not imply that programs released under those licenses will be Free Software if the patent claims contributed "royalty-free" to the standard those programs implement are limited to a particular field of use.

As an example, W3 members may contribute patent claims to a standard describing the behavior of web servers providing particular functionality. A Free Software program implementing that standard would be available for others to copy from, in order to add functionality to browsers, or non-interactive web clients. But if, as the present proposed policy permits, the patent-holder has licensed the practicing of its patent claims "royalty-free" only "in order to implement the standard", reuse of the relevant code in these latter environments would still raise possible patent infringement problems.

For this reason, the proposed policy does not actually protect the rights of the Free Software community to full participation in the implementation and extension of web standards. The goal of our participation in the policy making process at W3C has not been achieved. The Foundation urges all those who care about the right of Free Software developers to implement all future web standards to send comments to the W3C urging that the policy be amended to prohibit the imposition of "field of use" restrictions on patent claims contributed to W3C standards. The address to which such comments should be emailed is <www-patentpolicy-comment@w3.org>. The deadline for receipt of comments is Tuesday 31 December 2002.
Further Non-Legal Explanation of Position

    Many in the community have requested some additional explanation of FSF's objections to the policy. We have added them below

FSF's objections center around Section 3 of the W3C's proposed patent policy. Item 3 of that section says that the royalty-free license may "may be limited to implementations of the Recommendation, and to what is required by the Recommendation". That is a "field of use" restriction.

The problem is the interaction of such a "field of use" restriction with Section 7 of GPL. Under Section 7, the "field of use" restriction is a "conditions are imposed on you [the distributor of GPL'ed software] that contradict the conditions of this License". The "conditions of this license" require, for example, that those receiving distributions of GPL'ed software have the right to run the program for any purpose (Section 0), the right to modify it for any purpose (Section 2), etc. Any of these "purposes" could easily practice the teachings of the patent beyond what the "field of use" restriction allows.

Here's a detailed step-by-step example that shows how this problem could play out:

   1. Programmer P downloads the Konqueror web browser, receiving it under terms of GPL.
   2. P learns of a new web standard that requires exercising a technique for parsing URLs that is patented by Corporation C. C has licensed the patent under an RF, non-exclusive license, but with a "field of use" restriction that says the license can be used to "implement the standard". The standard, as it turns out, covers only what browsers must do with URLs, and says nothing about the server side or clients that aren't user browsers.
   3. P implements this technique in Konqueror, and seeks to redistribute the modified version on his website so that other users can benefit from Konqueror now complying with the standard. If he does, he is bound by the GPL under copyright law, because he is redistributing a modified version.
   4. However, he knows full well of a condition on that code that contradicts the GPL (violating Section 7) -- namely, he knows that C's patent license prohibits folks from taking his URL parsing code and putting it into, say, a search engine. Therefore, under GPL Section 7, he is prohibited from redistribution.
   5. You might think that he can simply assign his copyright to the existing copyright holder of Konqueror let distribution happen from that source. They could distribute under GPL, but they would be granting a self-contradicting license. Nothing (to my knowledge, but IANAL) prohibits someone from distributing copyrighted works under licenses that make no sense and are self-contradictory. However, it is certainly true that those who receive distribution of the works are stuck and can't undertake further distribution or modification themselves.

Thus, regardless of who makes the changes, the result either shuts down distribution or forces the original developer to abandon GPL. Both outcomes are very unfortunate. This is why we encourage you to write to comment on the Last Call Draft. 
Received on Thursday, 12 December 2002 02:05:38 GMT

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