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Continuing discussion of RAND Licensing

From: Daniel E. Maddux <dpaladin@hal-pc.org>
Date: Mon, 22 Jul 2002 14:38:32 -0500
Message-ID: <3D3C5F38.E3F5F2BA@hal-pc.org>
To: www-patentpolicy-comment@w3.org

For reasons that I stated in my comments of October 10, 2001 (see
http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Oct/1398.html)
and November 06, 2001 (see
http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Nov/0014.html),
and which I reiterate, the W3C should continue to prohibit RAND
Licensing from their proposed Patent Policy.  As I stated in Points 3(i)
of my October 10 comments and "B." of my November 06 comments, any
provision for RAND Licensing in the W3C Patent Policy will wipe out RF
Licensing.  The current economic recession will motivate W3C Member
corporations to choose RAND Licensing over RF Licensing, and once
started, W3C Member Corporations will not return to RF Licensing.  Since
RAND Licensing will wipe out RF Licensing, the W3C should prohibit RAND
Licensing from their proposed Patent Policy.

Calling RAND Licensing an exception or extension is simply
window-dressing.  Whatever the W3C calls RAND Licensing, it will have
the same effect of wiping out RF Licensing.  The reason for this effect
is as follows: if RAND Licensing is only available for extensions, then
W3C Member Corporations will manuever to make the part of any new W3C
standard covered by their patents an extension, thus subject to RAND
Licensing.  The recent example of MICROSOFT and OpenGL demonstrates this
point (See "Microsoft stakes IP claims on OpenGL" at
http://www.theregister.co.uk/content/4/26125.html and "SGI transfers 3D
graphics patents to MS" at
http://www.theregister.co.uk/content/54/23708.html).  The new OpenGL
standard was ready for release when MICRSOFT announced that they had
patents covering vertex_program extension and fragment shaders.  I
suggest that we can expect similar situations should the W3C allow RAND
Licensing in any shape or form, whether the W3C calls it extensions or
exceptions or anything else.

Some posters have wondered which 3 W3C Members are advocating RAND
Licensing.  2 of these Members are obvious: IBM and MICROSOFT.  IBM has
been pushing RAND Licensing through the W3C Patent Policy Working Group
from day 1 (See, for example, "IBM risks billion dollar Linux strategy
with W3C RAND demands" at
http://www.theregister.co.uk/content/6/22052/html and "Berners Lee: WWW
royalties considered harmful" at
http://www.theregister.co.uk/content/6/22561.html).  IBM also has a
sizeable patent portfolio of software patents.  Since IBM has a sizeable
patent portfolio of software patents, they will profit greatly from
RAND Licensing.  Furthermore, IBM has lost money the past couple of
quarters (check the stock market for info), so IBM is looking for
additional revenue streams, like licensing their patents.  Thus,
IBM supports RAND Licensing to generate revenue and thus enhance
shareholder value.

The second Member pushing RAND Licensing is MICROSOFT.  LINUX and
APACHE and other open Source software are starting to eat M$'s lunch in
the server market.  M$, like IBM, has a large portfolio of software
patents.  M$ can use RAND Licensing to block OSS developers from
implementing W3C standards by making the RAND Licensing terms
discriminatory towards OSS developers.  In addition to charging
exorbitant royalties that OSS developers cannot afford to pay, M$ can
also use "random" auditing of OSS developers to hinder the
OSS developers work.  Alternatively, M$ can require RAND Licensees to
only use M$ software to implement the RAND Licensed W3C Standard, or
prohibit RAND Licensees from using PERL or GPL'ed software in
implementing RAND Licensed W3C Standards, as M$ recently did with some
of their SDKs.  Again, consider M$'s behavior at the release of the
latest OpenGL standard.  The bottom line is M$ supports RAND Licensing
as a way to block OSS from implementing W3C Standards and thus destroy
OSS's threat to M$ monopolizing the server software market.

Daniel
Received on Monday, 22 July 2002 15:28:33 GMT

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