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Comments on http://www.w3.org/TR/2003/WD-patent-policy-20030319

From: L. Peter Deutsch <ghost@aladdin.com>
Date: Fri, 21 Mar 2003 12:28:18 -0800
Message-Id: <200303212028.h2LKSIN31262@coral.aladdin.com>
To: www-patentpolicy-comment@w3.org

A minor typo: I believe 3.3 incorrectly refers to "copyright licenses"
rather than "patent licenses."

The major problem is that to the best of my understanding, the draft policy,
as it stands, still prevents Open Source implementations of W3C
Recommendations to which Essential Claims apply, for the following reasons.

1) Section 5 grants only a non-assignable, non-sublicensable license.  This
   is incompatible with all Open Source licenses, which automatically
   propagate themselves to all recipients of the software.  The current
   draft policy requires anyone who wishes to modify Open Source software
   incorporating an Essential Claim to go to the licensor to obtain their
   own RF license, Just In Case.  (*Users* will not need to do this, since
   as I understand it, software patents apply to *constructing* the program
   as opposed to *running* it.  If "practicing" the patent includes running
   the program, every user will need to get their own RF license.)

2) Item 3 of section 5 says the license "may be limited to implementations
   of the Recommendation, and to what is *required* by the Recommendation."
   (emphasis added) Open Source licenses place no restrictions on the
   ability of recipients to modify the software.  Thus any Open Source
   software implementor will be at risk from assertions by the patent-holder
   that the program practices an Essential Claim for a purpose that "goes
   beyond what is required by the Recommendation," even if the purpose is
   part of an implementation of the Recommendation.

3) Item 10 of section 5 says "If the Recommendation is rescinded by W3C,
   then no new licenses need be granted but any licenses granted before the
   Recommendation was rescinded shall remain in effect."  This too is
   incompatible with Open Source licenses: someone who receives a copy of an
   Open Source licensed program incorporating an Essential Claim cannot be
   expected to know that they do not have the right to use it because of
   W3C's action.

Re (1), I strongly recommend making it clear that anyone who meets
requirements 3, 4 (if relevant), 6, and 8 of section 5 receive an
*automatic* license to the Essential Claims, *without* having to have any
interaction with the licensor.  This is clearly not the intent of the
current draft, which says:

    All Working Group participants are encouraged to provide a contact from
    which licensing information can be obtained and other relevant licensing
    information. Any such information will be made publicly available along
    with the patent disclosures for the Working Group in question.

I also recommend removing the assignment and sublicensing restriction.

Re (2), I strongly recommend adding language that makes it clear that the
incorporation of an implementation of the Recommendation into a larger work
cannot affect the validity of the license, and removing the restriction to
that which is "required".

Re (3), I strongly recommend stating that licenses *for implementations
created before the Recommendation was rescinded* shall continue to be
available on a RF basis.

				Sincerely,

L. Peter Deutsch     |    Aladdin Enterprises   |  203 Santa Margarita Ave.
ghost@aladdin.com    |  http://www.aladdin.com  |  Menlo Park, CA 94025

   No government censorship of software!  Oppose the CBDTPA!  www.eff.org
Received on Friday, 21 March 2003 15:50:20 GMT

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