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Re: PPWG reply on issue L3 -- GPL & W3C RF license requirements

From: Adam Warner <lists@consulting.net.nz>
Date: 15 Mar 2003 13:06:45 +1300
To: Daniel Weitzner <djweitzner@w3.org>
Cc: "Www-Patentpolicy-Comment@W3. " Org <www-patentpolicy-comment@w3.org>
Message-Id: <1047686804.1213.264.camel@work.consulting.net.nz>

On Sat, 2003-03-15 at 11:02, Daniel Weitzner wrote:
> Adam, thanks for your quick reply. Some answers inline...

Thank you for your direct and thorough answers. Some clarifying
questions/rebuttal inline...

> On Friday, March 14, 2003, at 04:23  PM, Adam Warner wrote:
> 
> > On Sat, 2003-03-15 at 08:17, Daniel Weitzner wrote:
> >> A number of commenters have raised questions about whether there is a
> >> conflict between the GPL and the royalty-free licensing requirements
> >> set in the W3C RF Patent Policy. In particular, commenters expressed
> >> concern that the W3C Patent Policy contains a 'field of use'
> >> restriction that would bar GPL implementations. The most immediate
> >> response to this concern is to note that there are no field-of-use
> >> restrictions whatsoever required by the policy. Hence, the fact that a
> >> Recommendation issues under the policy does not impose any 
> >> field-of-use
> >> restrictions on an implementer. The Patent Policy WG has discussed 
> >> this
> >> matter and reached the following conclusion:
> >>
> >> The policy addresses the patent licensing requirements for
> >> implementations of W3C Recommendations, while remaining neutral as to
> >> what patent owners may do as to licensing for other purposes.The 
> >> policy
> >> neither creates a presumption that any WG member will offer any 
> >> license
> >> to its patents for any other use, nor that the Member will impose any
> >> conditions on implementers to limit their implementations to the Rec.
> >>
> >> We hope that this addresses the concerns of the commenters. If not,
> >> please reply back by 18 March 2003.
> >
> > I hope you will address the issues I raised in my last comment. I'll
> > provide some focusing questions:
> >
> > 1. Can members restrict their patent grants to the current revision of 
> > a
> > specification? That is, can any future revision of a specification be
> > "for other purposes"?
> >
> 
> I'm not exactly sure what scope you mean to apply to the term 
> 'specification' so let me see if I can answer your question. The RF 
> licensing commitment is for whatever Recommendation is finally produced 
> by the working group. So, if this policy had been used by the working 
> group (WG) that wrote P3P1.0, the licensing commitments would only 
> apply to that Recommendation. If another WG is chartered to work on 
> P3P1.1, then a new set of licensing commitments would be sought.

Shouldn't licensing commitments only need to be sought for new parts of
a specification? That is if a commitment was granted in recommendation
1.0 why should members have the power to again negotiate whether their
1.0 licensing commitment be included in recommendation 1.1? Every single
licensing commitment that was resolved becomes a sword of Damocles at
1.1, able to derail progress towards a new recommendation.

Isn't it enough that new patents are able to derail progress towards a
new recommendation? Should all the old patents be rehashed each and
every time?

If a member decides that it will no longer provide a licensing
commitment to an essential part of 1.0 technology in a 1.1
specification, is that the end of any compatible future recommendations
(until the patents expire)? Should the W3C be making provision to
develop future compatible recommendations?


> > 2. Can members use this same neutral policy to prohibit the
> > implementation of any extensions to a recommendation? That is can an
> > extension to a recommendation be "for other purposes"?
> 
> If the extension is something specified as normative in the W3C 
> Recommendation then the answer is no. The RF license must cover all 
> normative features of the Rec. If the extension is something that an 
> implementer decides to do, then there's nothing in the patent policy 
> that requires the patent holder to grant a license to those extra 
> things that the implementer does. However, it would violate section 
> 3(7) of the license requirements[1] -- prohibiting " further conditions 
> or restrictions on the use of any technology, intellectual property 
> rights, or other restrictions on behavior of the licensee" to include a 
> restriction against extensions in the RF license that the patent holder 
> is required to grant under this policy.

Such behaviour wouldn't violate 3(7) because that section only applies
to "any further conditions or restrictions" other than already outlined
in the section. The licensor is already able to able to limit
implementations to what is required by a recommendation in 3(3).


> > For technological progress to occur extensions to standards will and
> > must develop over time. If your answer is yes to at least question 2
> > then some of your constituency may have no means to contribute to
> > further technological progress. Extensions could make an implementation
> > non-conforming and outside licence grants. And if one holds off
> > implementing any extensions (and engaging in innovation) one eventually
> > becomes irrelevant.
> >
> > Allowing members to do whatever they want is also a neutral policy. 
> > This
> > claim of neutrality is whitewashed of meaning. Rather than being 
> > neutral
> > the W3C should be actively pursing policies that will enhance general
> > technological progress rather than allow members to lock in
> > technological stagnation for everyone but those with the means to
> > licence their technology on other terms.
> >
> >> From my last call comment:
> >
> > "I strongly suggest you clarify that the implementation of any 
> > extension
> > (third party or otherwise) to a W3C recommendation is still covered by
> > the licence grant.
> 
> I understand your point but to solve the problem you posit would 
> require the participants agree to grant a seemingly unbounded licenses 
> to any patent they hold regardless of the relationship between the 
> original Recommendation (for which the patent-holder must grant an RF 
> license) and the extension. Under your proposal, an implementer would 
> be entitled to a free licenses for anything that the implementer 
> decides is an extension. The PPWG has only been willing to require 
> licenses to patent claims that are essential to the Recommendation 
> because that enables the patent holders to identify (if they chose) the 
> scope of claims which must be made available RF. The experience of the 
> PPWG is that some patent holders require that degree of certainty about 
> the scope of their obligation to be willing to make an RF commitment at 
> all.
> 
> 
> >
> > "If it is not then what you may have done is deleted the Core/Extension
> > process and replaced it with an informal one that could force future
> > non-proprietary technology stagnation. We may be worse off than if you
> > had kept out of the whole process. So long as companies have an
> > incentive to get developers and users to adopt their technologies they
> > will continue to consider granting royalty-free licenses to implement
> > their specifications. If the W3C assists them in obtaining widespread
> > adoption then the incentive to provide future royalty-free licenses is
> > diminished. As extensions inevitably develop that also use the same
> > patented algorithms then future implementations may have to become
> 
> happily it's still not possible to patent algorithms, at least in the 
> US. ;-)
> 
> > proprietary."
> 
> What you've pointed out here is that our proposed policy does not 
> eliminate all power that patent holders have to control the direction 
> of technology. One camp of commenters believes that requiring a RF 
> license at all robs patent holders of too much power. Those in the 
> other camp, like you, believe that we haven't done enough. Those in the 
> first camp are making a public policy judgment that the only way to 
> promote innovation is to allow patent holders total control over 
> licensing in standards. You make a policy-based argument on the other 
> side that the only (or best) way to promote innovation is to eliminate 
> patents from the process.  What we have done is to assure that when a 
> piece of technology becomes a Web standards that there are reasonable 
> assurances that it will be royalty-free. We've identified what we 
> believe to be a practical way forward. Larger questions about the 
> innovation-promoting/retarding nature of patents are the province of 
> legislatures.

With the greatest of respect Daniel, this is your organisation's
concern. You are the ones encouraging implementation of technologies on
the basis that they are royalty free. In good faith free and open source
software developers will implement these technologies and help lock in
patented software techniques as common standards.

Implementations could become progressively grey and eventually illegal
as common extensions develop over time (but before the patents expire).

This is not just a question in the province of legislatures as the W3C
will influence the market share that patented software techniques
achieve. Locking in software patents as standards coupled with licensing
commitments that reduce in usefulness over time could do more harm than
good. Whether the W3C could end up encouraging more harm than good is
clearly not just the province of legislatures.

If this cannot be addressed now then it will have to be addressed in the
future on a case-by-case basis by reviewing each licensing commitment
for each recommendation.

Regards,
Adam
Received on Friday, 14 March 2003 19:07:43 GMT

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