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Re: W3C patent license policy question

From: Ian Jacobs <ij@w3.org>
Date: Tue, 2 Aug 2011 19:50:42 -0500
Cc: www-patentpolicy-comment@w3.org, Gregory Maxwell <gmaxwell@gmail.com>
Message-Id: <AC669C9D-7BBB-4434-B2B6-6F6839C45FD6@w3.org>
To: bens@alum.mit.edu

On 2 Aug 2011, at 5:35 PM, Benjamin M. Schwartz wrote:

> On 08/02/2011 05:39 PM, Ian Jacobs wrote:
>> What does "end up in W3C" mean precisely? Does it mean that a Working Group would start with the IETF text as a contribution?
> I'm not familiar with the structure of RTC-Web, but it seems more likely
> that the IETF Opus text will end up as a normative reference in a W3C
> recommendation.  From the FAQ, I understand that the W3C's policies are
> much less strict in this case, and our license is unlikely to be an issue.

That's probably true. We refer to lots of IETF specifications normatively (and those of other organizations as well).

>>> How can we make sure that our license would be acceptable at the W3C?
>> Good question, but I think we need to understand the expectation more before finding the best solution. 
> Maybe this question is about how contributors actually license patents in
> the W3C.

>  For example the FAQ
> (http://www.w3.org/2003/12/22-pp-faq.html#ownlicense) says:
> "Organizations ... may not make individual modifications to or departures
> from the licensing requirements".  "each entity ... makes a choice between
> two straightforward options: 'we agree' or 'we don't agree' to the terms
> of the Patent Policy".
> but then also says
> "Organizations offering licenses meeting the W3C Royalty-Free requirements
> may point to the specific contact information and entity-specific license
> terms"
> The first part suggests to me that the W3C does not recognize any
> entity-specific license terms, and the second says that they _may_ or even
> _must_ offer their own licenses (that meet the requirements).

On the one hand the license you offer must conform to the licensing requirements of section 5. But section 5 does not address every last part of what would go in a license; for instance I seem to recall that "governing law" might be something covered in a license but that is not addressed explicitly by section 5. 

> Here's a concrete example: W3C appears to specify that the reciprocal
> grant and termination conditions only apply to "essential" patent claims,
> and provides some guidelines for determining whether a claim is essential.
> We have been unable to find a satisfactory definition for "essential",
> and so our license says:
> "If you ... file a Claim for patent infringement against ... an
> Implementation ... provided that a Reference Implementation also infringes
> the patents asserted in the Claim, then any patent rights granted to you
> under this License shall automatically terminate retroactively"
> We choose this wording to avoid lawsuits in cases where a non-infringing
> alternative exists but is impractical or undesirable.  Arguably, we are
> merely operationalizing the word "essential".  (WebM does something similar.)
> So what would happen if a W3C member were to offer this as their license
> in a working group?

The short answer is: it needs to meet the W3C licensing requirements in order to fulfill the patent policy obligations.

But note that W3C does not evaluate licenses. The discussion of concrete licensing terms is one that takes place between two separate parties.


>  I see 4 options:
> 1.  W3C doesn't care what their license says, because they have already
> automatically offered a license under the W3C Patent Policy (i.e. the
> policy is an automatic license).
> 2.  W3C sees this as an acceptable license.
> 3.  W3C sees this as an unacceptable license, rejects it, and requires the
> member to provide an acceptable license
> 3a.  ... because the only acceptable license is a copy of the text of the
> Patent Policy.

> 4.  W3C takes no position on whether a member has offered a compliant license.
> I'd like to know which of these options is most likely ... especially if
> it's 3, so that we don't end up recommending a license that puts people in
> conflict with the W3C.
>>> P.S. I think there's a bug in the patent policy text.
> ...
>> Your comment associates 5.6 #6 with Summary #3 but those aren't intended to be associated. 
>> In light of the above pairings, does it still seem like a bug?
> Nope, you're right.  The W3C draws a distinction here between "conditioned
> on a grant of a reciprocal RF license" and "may be suspended ... when
> licensor is sued".  I find this confusing and possibly redundant, but
> that's par for the course in licensing.

Ian Jacobs (ij@w3.org)    http://www.w3.org/People/Jacobs/
Tel:                                      +1 718 260 9447
Received on Wednesday, 3 August 2011 00:50:45 UTC

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