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Re: MS views on Last Call Patent Policy Draft

From: D F <dave.fluri@onlink.net>
Date: Fri, 24 Jan 2003 22:08:47 -0500
To: www-patentpolicy-comment@w3.org
Message-Id: <200301242209.23326.dave.fluri@onlink.net>

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It would appear that the nugget which resides at the heart of 
Microsoft's objections to royalty-free patents is their belief that 
the freedom of the corporate hegemony, perforce, trumps the freedom 
of the individual at every turn.

- From David Turner's (Microsoft's) contribution, we have:

     Many of these enterprises [Microsoft's customers]  have long
     established patent portfolio departments that derive revenue
     commensurate with some of their significant business units.  We
     have heard from many of these customers who are also W3C
     members that they will not participate in standards development
     activities if it means that they will have to agree to license
     their patents on a RF-only basis.

It would appear that Microsoft's contention is that the PPWG should 
consider these comments, ostensibly reported solely to Microsoft, 
as being of greater value than those of any individuals who have 
written in. I would posit that, if the concerns of these 
"enterprises" were not sufficiently pressing to elicit their 
tabling them here, that suggests that they are not of sufficient 
weight to garner much consideration by the PPWG. Microsoft's Mr. 
Turner goes so far as to say that the concerns of individuals 
posted here are of lesser worth:

     The fact that the current proposal treats all participants
     (except invited experts and perhaps W3C staff) and licensees
     the same is especially noteworthy given that the interested
     parties employ different business models and use web
     technologies in very different manners.

I note, but I am not deceived by, the measured tone of Microsoft's 
use of the term "noteworthy."

Microsoft also notes that:

     While most web developers and users alike would prefer RF
     standards it is not clear that everyone arrives at this
     preference for the same reasons.

I'm forced to wonder why this should concern anyone in any way. One 
might say the same about just about anything one might imagine. 
People come to Rome by way of many roads. Doesn't the fact that 
such consensus can spring from a disparate group lend more weight 
to that consensus? If "most ... developers and users ... would 
prefer RF standards" why should they not have them?

Microsoft, in an effort, I suppose, to denigrate the position of 
others, also seems to be painting dissent where no real dissent 
exists.

     On the one hand we have Bruce Perens hailing the W3C's RF-only
     decision because it represents a victory on the way to
     eliminating the enforceability of software patents even though
     a significant percent of his constituency is apparently unable
     to distribute software based on W3C Recommendations, while his
     colleague Eben Moglen urges his constituents to amend the W3C
     patent policy in a way that would surely lead to a mass exodus
     of the W3C's current membership.

I think a fair analysis of SPI's and FSF's positions would reveal 
that both groups are on record as supporting RF standards and both 
are against the 'field of use' provisions. It seems duplicitous of 
Microsoft to suggest that they are at any meaningful variance.

Another troubling aspect of Microsoft's position can be seen in the 
following:

     While the open source software community, like the commercial
     software community, has and continues to contribute to the
     development of the Web, in part, by creating and supporting Web
     standards, these communities do have different relationships
     with the W3C.  As you consider whether or not a RF-only policy
     is the right patent policy for the W3C we hope you will not
     only think about the pros and cons of such a policy but why
     some parties are issuing a call to arms to individuals who may
     have little engagement with the W3C other than to comment on
     this patent policy.

In other words, it is Microsoft's position that the merits of RF 
standards are less important than the motivation of those who 
support them. In a strange sense, I agree with this. If one 
examines the record, I think it is clear that the motivation for 
Microsoft's opposition to RF standards is that the adoption of such 
standards would ham-string Microsoft in their desire to extend 
control over the Internet. Apparently, though, I am more 
magnanimous and less mercenary in my approach. I believe that RF 
standards should stand or fall on their own merits and I believe 
that they are meritorious enough to stand.

In conclusion, let me state, once more and without equivocation, 
that I am of the firm belief that RF standards are the only 
workable solution which can guarantee innovative and rapid 
development of the Internet. We need only look to the vast majority 
of international standards bodies to see that most people are in 
agreement with my position. If the 'field of use' provisions are 
the price that we must pay to ensure that RF standards are 
preserved, then I must. reluctantly, 'hold my nose' and support the 
draft proposal. This does not mean that I think encumbered RF 
standards are a good thing; only that I prefer encumbered RF 
standards to closed standards.

Thank you for your patience and consideration of my analysis.

- -- 
Dave Fluri
PGP Public Key-ID 3F64B9AC
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Received on Friday, 24 January 2003 22:20:22 GMT

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