Re: Encrypted Media proposal: Summary of the discussion so far

On Tue, Mar 13, 2012 at 3:00 PM, Tab Atkins Jr. <jackalmage@gmail.com>wrote:

> On Mon, Mar 12, 2012 at 1:51 PM, Glenn Adams <glenn@skynav.com> wrote:
> > On Mon, Mar 12, 2012 at 1:24 PM, Charles Pritchard <chuck@jumis.com>
> wrote:
> >> Confirmation that the development of CDM "key systems" is covered by the
> >> W3C Patent Policy: should a company decide that they want to create
> their
> >> own CDM, and they do so, they should not face face IP litigation from
> W3C
> >> members. Each existing CDM vendor, who is also a w3c member, would check
> >> their patent holdings for relevant IP. A fictional example would be
> >> "Encryption of a network video stream and management of a collection of
> keys
> >> for decoding of the data".
> >
> > nothing in the proposal requires a specific CDM to be covered by W3C PP;
> nor
> > does the W3C PP or PD require this; so you are asking for something that
> is
> > out of scope; this is no different from someone defining a canvas context
> > that is IPR encumbered and publishing its availability via
> > canvas.getConext("anEncumberedCanvasContext");
>
> Once again, *please* stop attempting to derail conversations about the
> badness of CDMs by falsely claiming they are "out of scope".
>

We disagree.


> CDMs are novel, essential pieces of technology for the API.  There is
> *no reasonable argument* for calling them "out of scope".
>

Wrong. Other than Clearkey, individual CDMs are not part of what is
specified in the proposal.

The W3C PP explicitly excludes such aspects. More specifically Section 8.2
[1] of the PP states:

The following are expressly excluded from and shall not be deemed to
constitute Essential Claims:

   1. any claims other than as set forth above even if contained in the
   same patent as Essential Claims; and
   2. claims which would be infringed only by:
      - portions of an implementation that are not specified in the
      normative portions of the Recommendation, or
      - enabling technologies that may be necessary to make or use any
      product or portion thereof that complies with the Recommendation and are
      not themselves expressly set forth in the Recommendation (e.g.,
      semiconductor manufacturing technology, compiler technology,
      object-oriented technology, basic operating system technology, and the
      like); or
      - the implementation of technology developed elsewhere and merely
      incorporated by reference in the body of the Recommendation.

[1]
http://www.w3.org/Consortium/Patent-Policy-20040205/#def-essential-exclusions


>
> The argument about canvas contexts is misleading.  Canvas contexts can
> *theoretically* be royalty-encumbered or closed-source, but all of the
> current specced or proposed contexts are RF and open-source.  Both you
> and Mark Larson (and internal discussion I'm privy to) have indicated
> that the CDMs that will be used by Netflix and other major video
> distributors will be royalty-encumbered and/or closed-source.  Thus
> this is not a theoretical concern.
>
>
> > further, the W3C PP does not, in general, indemnify W3C members from one
> > another
> >
> >>
> >> My understanding is that companies should be able to create and maintain
> >> CDM providers without fear of competitive patent disputes.
> >
> >
> > the W3C PP is no guarantee against patent disputes, so this is a red
> herring
> >
> > IANAL, but it seems that you may wish to consult one to formulate
> questions
> > that are reasonably in scope of the W3C PP and PD;
>
> The W3C PP *is* a guarantee against patent disputes for patents
> involved in the relevant spec and owned by W3C Members in the relevant
> WG.  Members in the WG are required to offer an RF license without
> field-of-use restrictions for all essential technologies.  That's the
> *entire point* of the PP.
>

wrong, you need to read the PP again or consult with an attorney on what it
actually says; CDMs that are not defined by the W3C are out of scope as far
as essential claims are concerned

you may wish it to be otherwise, but you will need to change the PP to make
it so