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Re: [Fwd: SVG & XPointer - When I write SVG code can I be sued?]

From: Rigo Wenning <rigo@w3.org>
Date: Thu, 18 Jan 2001 22:49:55 +0100
To: Chris Lilley <chris@w3.org>
Cc: svg-developers@egroups.com, www-xml-linking-comments@w3.org, www-svg@w3.org, eve.maler@east.sun.com, marc.foodman@sun.com, www-svg@w3.org, Daniel.Veillard@w3.org, Daniel Weitzner <djweitzner@w3.org>
Message-ID: <20010118224955.D2456@w3.org>
Hi all, 

Chris justed notified me of that mail. I think this needs some
comments. (not clarifications, as those may be legal advice and
W3C is not in the shape to give legal advice) I'm not a
US-Lawyer, but a lawyer nevertheless (Germany/France)

First, I think, Sun has omitted to provide the manual for their
legalese. Perhaps this can be remedied by some explanatory
remarks and some clarifications of the intention of the given
conditions. 

I find it an exotic construction to grant a right "not to be
sued". In civil law areas, this will probably be interpreted as a
license. But I don't know about the US.

It seams that your fear to be sued is a bit too high, as far as I
understand the terms and conditions. 

If you carefully read, Sun is not requiring notification to W3C!
for _any_ implementation, but only for Modifications, as defined in
the thingy. Modifications are defined as _extensions_ etc... to
XPointer. So: Notification only for extensions + Notifications
should go to W3C.

Furthermore, I might think, it is possible to implement only
parts of XPointer. The text says:
...making, using, selling, offering for sale, otherwise disposing
of or importing a fully compliant implementation of the XPointer
Specification or _subsets_ thereof.

But part or full implementation, it has to be compliant. That's
what we try to reach with validator, css-test-suite etc.. What
does that mean, fully compliant? Who will determine that? It is
not said, that Sun will determine that. So I assume, this will be
decided by the test-suite or by some expert from W3C or some well
recognized expert in an testimony before some court.

If you do an implementation and you do a bad job, the thing might
be not compliant, but you aren't aware of it. I don't think you
risk that much until you dicover that you're not compliant. The
test-suite give's you an easy way to discover it.
(for US, I'm not sure, to be confirmed by a US Lawyer)

Finally, if it were all true, Sun's Patent would not only protect
Sun, but eventually also You (at Sun's discretion!). The text
says: 
You covenant on a worldwide basis not to sue Sun or any _third_
_party_ for infringement of _any patents_ ....for the making..
or...implementation of the XPointer Specification. 

So Sun reserves itself the right to sue somebody upon this
patent, if this somebody sued you for infringement of one of
somebodies patents..

Than, there is an "open source" provision. To me it is 
new (and interesting) to see, that they tried to base that on 
a patent and not on normal copyright. The "open source" 
provision only applies to the "Modifications", so a commercial
implementation without extensions might remain possible. 
AND, they put W3C! in an editor-role (that we never accepted
officially ;), as you'll have to provide documentation of your
_extentions_ to W3C! and NOT to Sun.

Summa summarum, I think the word "sue" or "sued" should be
avoided in texts, that are made to be used by non-lawyers.
At least, such statements should be tidied before they go to
techniciens.

But if I'm wrong, Eve Maler could correct me. It would be really
interesting to here about their intentions behind those
conditions. 

I keep the full quote because of the extensive cross-posting
without reference, so all information remains contained
(including the URI of the mail with the conditions and terms)

Note, that this is NOT a legal advise nor does it reflect any
official statement of W3C as an entity on that issue (this is
Danny's Job) These are just some remarks from me to clear up some
apparent misunderstandings. (Imagine additionally a
US-Disclaimer, disclaiming everything possible)

Best, 

Rigo Wenning            W3C/INRIA
Policy Analyst          2004, Routes des Lucioles
mail:rigo@w3.org        F-06902 Sophia Antipolis
+33 (0)6 73 84 87 31    http://www.w3.org/



On Thu, Jan 18, 2001 at 06:52:44PM +0100, Chris Lilley wrote:
> 
> It seems to me that anyone creating any but the most trivial Scalable Vector 
> Graphics, SVG, code may arguably be breaching a patent held by Sun 
> Microsystems. And therefore, in theory, would be open to being sued. I hope 
> that this email will elicit a definitive response from Sun that no such 
> danger exists - for me or for anyone else creating SVG code.
> 
> I am going to try to ask this question in as balanced a way as possible. Some 
> recipients will be aware that there has recently been an expression of 
> anxiety e.g. on the XML-DEV list regarding the implications of a Sun 
> Microsystems patent for the further development of XPointer. Some have gone 
> as far as to suggest that XPointer will be "DOA" as a result.
> 
> Hitherto I have seen no expressions of concern relating to the impact of 
> Sun's patent on the use of XPointer in SVG.
> 
> But when writing anything but the most trivial SVG code we cannot avoid using 
> "XPointer" syntax e.g. to access a filter using syntax along the lines of 
> "filter:url(#MySpot)" - the so-called "bare bones" XPointer syntax.
> 
> Some recipients may shrug and say "So what?". But there is a bizarre logic 
> that underlies the possibility of being sued for writing SVG code.
> 
> The W3C XPointer specification acknowledges the validity of a Sun patent. 
> Whether or not that is correctly acknowledged is a side issue at present. As 
> a consequence when anyone either "downloads" or "implements" XPointer ... as 
> we must when creating SVG ... we "agree" to provide Sun with our code no 
> later than the time we make that code available to anyone else.
> 
> See
> http://lists.w3.org/Archives/Public/www-xml-linking-comments/2000OctDec/0092.h
> 
> tml
> 
> So, in creating for example www.svgspider.com/Page05.svg which includes an 
> XPointer reference to a filter I have arguably breached Sun's patent and 
> theoretically, could be sued for doing so. Despite the fact that I did not 
> know of the "requirement".
> 
> At the time I posted that page I hadn't been made aware of the "legal" 
> requirement to notify Sun of my code. Am I now open to be sued?
> 
> The current wording of the XPointer Working Draft and the tacit (or perhaps 
> explicit) acknowledgement of the validity of Sun's patent seems to impose a 
> huge legal burden on anyone using SVG.
> 
> I am no lawyer but I understand that such conditions would be thrown out in a 
> UK or British Commonwealth court. But Sun might choose to sue me or anyone 
> else in, for example, a US court since ... given the World Wide Web ... my 
> "illegal" code can be viewed from there.
> 
> I don't want to overstate the danger. I hope that this email will elicit from 
> Sun and it's legal representatives a definitive statement that no danger of 
> being sued exists for those who "implement" XPointer by writing SVG code.
> 
> If SVG is soon to move forward to a Proposed Recommendation SVG developers 
> need to be sure that no cloud of legal uncertainty hangs over this matter.
> 
> I would value informed responses from recipients at Sun or at the W3C.
> 
> Andrew Watt
Received on Thursday, 18 January 2001 16:50:43 GMT

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