W3C home > Mailing lists > Public > www-patentpolicy-comment@w3.org > July 2002

W3C BACK to "RAND" Exception?

From: Seth Johnson <seth.johnson@realmeasures.dyndns.org>
Date: Tue, 09 Jul 2002 23:20:32 -0400
Message-ID: <3D2BA800.7F845D93@RealMeasures.dyndns.org>
To: www-patentpolicy-comment@w3.org
CC: djweitzner@w3.org, C-FIT_Community@realmeasures.dyndns.org, C-FIT_Release_Community@realmeasures.dyndns.org, fairuse-discuss@mrbrklyn.com, patents@aful.org, fsl-discuss@alt.org, fsl-discuss@alt.org, developers@dotgnu.org, lists@consulting.net.nz

In October of last year, Daniel Weitzner, Chair of the W3C's
Patent Policy Working Group, was presented with numerous,
specific and crucial questions and comments which had been
raised by the act of considering a W3C policy supporting
royalty licensed and patented protocols for the World Wide

At that time, the W3C received a profound, broad expression
of popular support for their not undertaking this direction,
despite the pressure being brought on the organizations from
parties seeking to get W3C endorsement for royalty-based

The issue is returning once again, by means of back door
"exception" proposals.

The important question has now become: who is encouraging
the W3C and its PPWG to introduce these provisions.  Let
these parties explain why they feel this move is of benefit
to the W3C, and to the public at large.

This is a question that cannot be addressed without such a
disclosure and presentation on the part of those seeking to
benefit from the institution of such a policy by a body such
as the W3C.

Seth Johnson

> http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Oct/0227.html

From: Adam Warner <lists@consulting.net.nz>
To: "Daniel J. Weitzner" <djweitzner@w3.org>
Cc: www-patentpolicy-comment@w3.org
Date: 02 Oct 2001 23:39:54 +1200

On Tue, 2001-10-02 at 18:15, Daniel J. Weitzner wrote:
> Hello Adam,
> You've take a lot of time to provide you're views on
> our patent policy proposal, so I hope you can spare a
> bit more to reply to my questions.

I appreciate the opportunity.

> ----- Original Message -----
> From: "Adam Warner" <lists@consulting.net.nz>
> Sent: Tuesday, October 02, 2001 12:49 AM
> > Hi all,
> >
> > Having read through:
> >
> > http://www.w3.org/2001/10/patent-response
> >
> > "The draft policy does attempt to answer this question:
> > In a world where patents exist and may be used to
> > constrain conformance to standards, how should W3C best
> > proceed in order to accomplish its mission? Even if a
> > patent holder claims that a patent is relevant to a W3C
> > Recommendation and that party offers a license, this
> > does not mean that W3C (or anyone else) shares the
> > belief that the claim is valid, or that an implementer
> > has infringed upon it."
> >
> > Thanks for asking and answering the wrong question.
> Perhaps there were other questions we should have
> answered as well, but W3C recent experience with patents
> established that we needed to answer this one.

Yes, of course :-)

> > In this respect what I originally wrote still
> > stands:
> >
> > "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."
> >
> > What I meant by that is obvious: If the W3C
> > agrees to a Recommendation that includes RAND
> > fees/restrictions and the official W3C logo/body
> > is used to promote that Recommendation it can't
> > help but promote those non-free licensing terms
> > as well (for incorporation into our future WWW).
> >
> > What we need from the W3C are some well reasoned
> > examples for why RAND licensing terms are
> > necessary for the future functioning of the W3C
> > and for the BENEFIT OF THE WWW (that's the
> > overriding criterion of everyone here after all).
> > So we can all nod our heads and go "Yeah, that
> > makes sense."
> I believe that we've already provided two sets of
> answers to this question in the policy.

Daniel as the Director of the W3C's Technology and Society
division I understand you are more than qualified to address
issues of Internet public policy. Please point out any areas
of my ignorance so we can overcome those issues quickly.

As you are also a teacher of Internet public policy I hope
you will be able to provide some hypothetical situations
that we can discuss--where RAND licensing is necessary--in
more than abstract terms.

> First is a set of general observations about how
> the patent environemnt around Web standards has
> changed including a number of situations in which
> W3C working groups have already run into patents
> not available on Royalty-free terms

OK. This is concrete. We have hit a philosophical divide.
Those who are looking to maintain free Internet standards
will want the W3C to stop at this point and make one of,
say, three decisions: work around the patent; lobby hard to
get the respective company to provide the technology on RF
terms (especially if the patent is held by a member
organisation); or disband for the time being and if relevant
(i.e. it is widely concluded the patent is specious) call
upon the Internet community to challenge the patent.

> and convergence between the Web and the telecom &
> consumer electronic industries. As you know, those
> industries and their standards bodies work in a
> patent-intensive environment. (see section 2.1
> Larger Role of Patents on the Web Landscape [1] for
> more.)

(Following URI [1]


Why does convergence have to go the way of RAND licensing?
OK it's pretty much guaranteed it will happen if the W3C
adopts RAND licensing as a viable, sanctioned option.

But what if the W3C is the standards body that upholds the
RF rights of its members and the wider community? As these
other technologies converge towards free Internet standards
perhaps they will have to adapt to a free Internet rather
than the other way around.

And if the W3C is not willing to draw this line in the sand,
what will stop another organisation with an invigorated
moral mandate drawing that line in the sand themselves and
others moving to support them?

The free Internet is too wonderful an ideal to give up so
easily. The only reason we are having a conversation now is
because of free Internet standards enabling me to be an
independent publisher at extremely low cost. As media
industries converge towards the WWW they will desire to
increase the cost of independent publishing. W3C sanctioned
RAND licenses will help to achieve that objective.

"2.Rise in patent issuance."

Which can be dealt with by the grant of RF licenses by W3C

Is the W3C concerned that they will lose their member base
if they do not allow RAND licensing? (NB: Is there somewhere
I can view individual member contributions to the W3C?)

"3.Experience of Internet-related standards bodies: A number
of standards bodies including W3C, IETF, the WAP Forum, and
others, have encountered potential barriers to acceptance of
standards because of licensing requirements perceived as

That's how many people view reasonable and
non-discriminatory fees and audit requirements, especially
those who are accustomed to the free standards and software
of the Internet.

"4.Popularity of business method patents: Beginning with the
State Street decision in the United States and continuing
through high-profile litigation between Amazon.com and
Barnesandnoble.com, business method patents have become
increasingly significant factor in the ecommerce

I'm a New Zealander. How much sympathy do you think I have
for United States business method patents? But regardless,
what has this to do with RAND licensing? If Amazon.com (to
quote your example) wants to work with the W3C to promote a
Recommendation then I'd sure hope they'd generously provide
an RF license to (say) their single-click patent. And I'd
also hope the W3C would never dream of incorporating it on
more than RF terms.

The W3C's arguments are weak. They are not sufficient to
displace the history of free licensing that has made the
Internet what it is today.

We also see no analysis of how RAND licencing may affect
different sectors of the Internet community, especially
those in the free software community.

What's strange about the Patent Policy FAQ? It contains
three sections on implications: "Member Implications,"
"Working Group Implications" and "Legal Implications."
Here's a guess for why this policy change was off people's
radar (apart from the terrorism of last month): You
completely forgot to study "Internet Community
Implications." I bet, for example, that if the FAQ had
mentioned this could affect the free software community
someone would have spotted it before me (please point out
where it does if I've missed it).

Secondly, where is the rigorous economic analysis of the
benefits to the community you serve of RAND-style licensing?

And by the way that economic analysis should include
investigation of how the dynamics of standard setting will
change within the W3C because of some members' preference
for RAND-style licensing. I'm not the one who wrote this:

'From a licensor perspective, everyone would prefer the
comfortable choice of a "RAND commitment" (which need not
identify particular licensing fees or terms).'

It's your PP FAQ:

That economic analysis should be made public to allow
independent comment.

> This first set if answers points more to trends than
> concrete situations, so the policy offers the second
> set of answers by creating a process which requires
> that just the question pose be answered when we
> create an activity.
> Section 5.1 of the policy requires that:
> "Activity proposals and/or draft charters proposing
> licensing modes must state clear reasons for
> selection of the licensing mode proposed. Members
> commenting on these proposals during the Advisory
> Committee review process should state reasons for
> their views on the appropriate licensing mode given
> the specifics of the Activity, relevant market,
> along with any other factors." [2]
> With this, I believe we have assumed the burden of
> answering the question of the wisdom of RAND or RF
> for each activity that we start.

"Trust us, we know what we're doing." The answers above are
more concrete than this.

What "relevant market[s]" are we talking about? If the W3C
envisages these markets may not provide for free WWW
participation you better let us know now.

> The question will be asked an answered again by
> the entire development community when they go to
> implement a specification created in either a RAND
> or RF group (I expect that many will refuse to
> implement specs they believe to be chartered in the
> wrong mode) and each time a Working Group published
> a public working draft (every 3 months) for public
> comment. W3C certainly may make the wrong decision
> in some cases, but I'm confident that we'll heard
> about it and hope that we'll learn lessons about
> how to make these choices.

Well a power struggle is going on here because I'd rather
the W3C not have the ability to make the "wrong" (RAND
track) choice. But that's because of my preference for free

Perhaps you could point out the constituency that wants RAND
licensing. Let them put their hands up and be counted (a few
of them already have, in this comment archive and by their
unwillingness to provide the W3C with licenses on RF-terms).

The W3C is trying to serve two masters. I can understand how
difficult that is.

I have just spent some time trying to come up with some
really elaborate examples of how a higher-level service can
become a lower-level one over time (since this would refute
your theoretical underpinning for RAND: "Recommendations
addressing higher-level services may be appropriate for
licensing on reasonable and non-discriminatory (RAND)

But then I see Ron Arts has just given a beautifully
succinct example:

> http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Oct/0217.html

"Another problem is the low/high level separation. If you
look at the history you will notice that what currently is
high-level, can in a few years be seen as low-level (for
example: HTTP used to be high level but is now included in
the linux kernel). Accepting a high-level standard under
RAND may sound reasonable, but will result in a few years in
a low-level standard under RAND."

We could imagine that media services might become a part of
kernel operations in the future as well. What is your
comment on this phenomenon?

I can't remember the author/post but someone also brought up
the very important point that high level services may also
need to be processed at a lower level (for example by
converting it into another format). So even if encoding
ability was free and decoding ability was intended for, say,
consumer electronics devices (where the W3C also believes
convergence in this area may justify RAND licensing) it
would impact upon the server infrastructure as well.

I look forward to reading your comments on this matter and I
also invite others to respond to our respective comments.



[CC] Counter-copyright:

I reserve no rights restricting copying, modification or
distribution of this incidentally recorded communication. 
Original authorship should be attributed reasonably, but
only so far as such an expectation might hold for usual
practice in ordinary social discourse to which one holds no
claim of exclusive rights.
Received on Tuesday, 9 July 2002 23:23:39 GMT

This archive was generated by hypermail 2.2.0+W3C-0.50 : Tuesday, 27 April 2010 00:13:49 GMT