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SPI response to Microsoft comment of January 16.

From: Bruce Perens <bruce@perens.com>
Date: Sun, 19 Jan 2003 09:11:54 -0800
To: www-patentpolicy-comment@w3.org
Message-ID: <20030119171154.GA28285@perens.com>

Software in the Public Interest, Inc., would like to respond to
Microsoft's comment of January 16.

Microsoft suggests that standards are only successful if their customers'
requirements are being met through their active participation in the
standards setting activity. They go on to imply that their customers who
are electronics and telecommunications companies will not participate in
W3C due to RF policy.

SPI would like to point out that many of these same customers are
currently engaged in deployment of the Linux kernel and other Open Source
software within their products. Indeed, Microsoft's largest customer,
an enterprise heavily involved in the production of electronic devices
for personal use, is represented on the W3C Patent Policy Working Group
and publicly opposes Microsoft's position on making exceptions to the
RF policy.

About a dozen companies today are developing Linux-based cellular
telephones, and of course thousands are developing devices incorporating
Open Source. One of their major reasons for their interest
in the Linux kernel is the royalty-free nature assured by its GPL
licensing. Another is that the nature of Open Source development
establishes a neutral ground upon which competitors willingly set aside
their individual intellectual property concerns in the name of a mutually
beneficial collaboration.

These enterprises do indeed have long established patent portfolios,
as Microsoft asserts. Some of them presently hold patent policies that
are hostile toward the same model that is providing them with software
that they can use, modify, and redistribute without the need to pay
any royalty. A continued supply of royalty-free software and the effective
collaboration model of Open Source is in their interest. Thus, they
will eventually come to understand that it will sometimes be necessary for
them to set aside their own royalty demands.

SPI rejects Microsoft's representation that we feel that "we don't
need" participants from the electronics and telecommunications
industry. Rather, we assert that no partnership can tolerate members
who insist on participating only upon their own terms. SPI accepted
a compromise that is rather painful to us regarding the possibility
of field-of-use restriction in some patent licenses attached to W3C
standards. We suggest that others might also have to go through some
pain in the name of partnership.

Microsoft asserts that there is no toll booth on a web standard today. We
suggest that the Unisys position on GIF image compression is one example of
such a toll booth. Much effort has had to be made by Microsoft and others to
support the PNG image file format in their browsers in order to avoid the
effect of this patent.

Microsoft suggests that there is a tendency to look at the royalty issue
in black or white terms. This is very true for us, for a simple reason.
The royalty issue is a blocker for Open Source software. We don't charge
our own royalties, and thus can't pass royalties on to patent holders.
Some patent holders make extensive use of our own software while still
attempting to assert their royalties upon us, or block us through mechanisms
like W3C patent policy. Theirs is a hypocritical position, and will not
remain tenable.

Microsoft suggests that because standards organizations place a burden upon
their working group members to disclose early, it's possible to determine
whether acceptable licenses will be available during the development of a
standard. Yet a significant part of the current patent policy draft, and a
great deal of recent PPWG discussion, is concerned with making allowance for
patent holders to keep both the nature of their effected patents, and the
licensing terms of those patents, undisclosed to the working group.

Microsoft suggests that I personally have an agenda upon patents that
extends far beyond the purview of W3C, citing an editorial I published
on CNET's News.com and ZDnet. Yes, of course SPI and I have an agenda that
extends beyond W3C. Microsoft's agenda is not more limited.

We are concerned that software patents are a total blocker for Open Source
software everywhere. We are fighting a worldwide battle against them. We
fight a more limited battle within W3C to assure that W3C standards remain
implementable in Open Source software while the larger battle progresses.

Microsoft discounts this agenda as "special interest". Yet, in this
we are representing a community including the predominant provider of
web servers, the provider of kernels for 30% of web infrastructure systems,
and many thousands of creators of software essential to the Internet.
Rather than a special interest, we represent some of the many legitimate
interests that are present at the W3C PPWG. Microsoft's interests are no
less special.

Microsoft suggests that companies using the GPL for their products would
not be able to incorporate W3C implementations containing field-of-use
restrictions. The reality is more complex than that, and we are aware of
legal means to implement field-of-use-restricted algorithms in connection
with GPL software.

Microsoft suggests that the various constituencies in Open Source / Free
Software are not unified on the issue of field-of-use restrictions. We are
unified upon the larger battle in opposition of software patenting. That
FSF and other organizations differ somewhat regarding the field of use
restriction is less significant than the fact that Microsoft's largest
customer opposes Microsoft's position on exceptions to the RF policy.

Microsoft asserts that our primary interest in a RF-only policy does not lie
with the W3C remaining a good forum for developing web standards. Indeed, our
insistence on an RF policy is based in the need for W3C to remain a good forum
for all participants. A non-RF policy would exclude us. It would also
eventually present insurmountable problems for many small and medium-sized
proprietary software creators, some of whom are represented on W3C but not the

Microsoft feels that some of our members have issued a call-to-arms to
"individuals who have little engagement with the W3C other than to comment
on this patent policy". But those individuals represent the implementors of
W3C standards in Open Source software, and the users of those implementations.

Microsoft cites a rejected proposal to make exceptions to the RF policy
as being "included in the last call document". We would like to point out
that the proposal was included in the document to make it clear that the
PPWG had considered - and then rejected - that proposal. Indeed, PPWG has
left few stones unturned in the years-long process of determining a patent
policy. But they decided to reject the exception proposed by Microsoft, and
the broader W3C should continue that rejection.

SPI urges W3C to adopt an RF policy without a RAND exception mechanism. Only
that choice will assure that W3C standards are implementable by all
participants without exception. A standard that would completely exclude some
parties should not be called a "standard", and W3C should not engage in
producing non-standards.

	Respectfully Submitted

	Bruce Perens
	Software in the Public Interest Incorporated
Received on Sunday, 19 January 2003 12:59:59 UTC

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