Re: [patwg-charter] All Working Group members agree to licence input data for specifications on FRAND terms (#30)

Aram,

I am aware of the issues you refer to. References to Safari’s inadequacies and the fact that it lags developments in Chromium is not a new issue and also not one germane to my point. There appears to be a misunderstanding here. Floc and Fledge did not become standards and failed to comply with GDPR so the point I made did not arise. (The proposal for First Party Sets was a close-run thing though and is part of the reason for the UK’s CMA’s decision about Google’s Privacy Sandbox ). Thankfully, the First Party Sets proposal ended when the TAG recognised that it reinforced the position of a small number of major corporates. The issue of standards reinforcing dominance was therefore avoided. However, the issue still exists. Not only that but so does Section 7 of the EU Horizontal Guidelines that are applicable to standards making and standards making bodies wherever they are situated. I recommend them to you and provided a link in my previous email.

I your reference to things that I may or may not understand to be an “ad hominem” comment – don’t you? I am not sue that ad hominem comments are helpful- do you?

You then state: “Any attempt to use this group's charter or the W3C to bind user agents to particular legal terms is incompatible with how their membership in the W3C works. This includes FRAND. The only way one could attempt to integrate something like FRAND into user agent behaviors is to make it part of a standard so that when a user agent adopts it they would have to adopt FRAND to be considered compliant with the standard.”

This needs to be broken down to avoid misunderstanding.

Firstly, I have not advanced the idea of using a group charter to “bind” user agents to particular legal terms. I advanced a mechanism for W3C compliance in the development of standards when people are in a group discussing them. In common with other standards making bodies, W3C already includes FRAND in relation to IPR in the W3C membership agreement. I was merely pointing out that FRAND is there to prevent non-compliance with competition law in the event that a SEP is engaged. Extending that approach to other issues where non-compliance could arise is a sensible compliance approach to avoid a likely risk.

Secondly, since I did not make either the above or subsequent points that you asserted, the points that follow concerning how the charter would work etc do not need to be addressed. (They are your points not mine and I don’t follow what you are saying there).

I am happy to be complimented on “excellent work” in explaining my point. But I have to apologise as I am afraid that I have clearly failed on this occasion to explain things clearly enough! Your note did not address or appreciate the points that I am making and continue to make.

How compliance with the law is achieved is a matter for W3C and its members: it is for you. I was merely drawing your attention to law which applies to you and W3C and its members. I was also making an observation that I thought might be helpful in the spirit of trying to enable the W3C to move forward.  However, leaving the issue hanging without being resolved might be problematic. Operating openly as a standards body means operating reasonably with relation to reasonable inputs and observations. I hope mine have been so and can be addressed as outlined. Your suggestion that you might to close-down the debate on using FRAND as a preventative mechanism to secure increased compliance for W3C and its members might be interpreted as an attempt to avoid addressing an issue of compliance for W3C and its members might it not?

Ultimately that is, of course, a matter for you and W3C members. I am trying to help you navigate your obligations and offering to support your deliberations.

I would be happy to discuss alternative ways forward with you and others.

Given the fact that the spotlight of antitrust is on browsers both in the UK, EU and USA, I would have thought that now might be a good time for increased vigilance and compliance. You make reference to the antitrust guidelines of the W3C. They are something that ought to be reviewed at the present time and that might be something to be picked up with appropriate support. I would of course be happy to help in that endeavour.

With kind regards

Tim.




From: Aram Zucker-Scharff ***@***.***>
Sent: 29 June 2022 16:57
To: patcg/patwg-charter ***@***.***>
Cc: Timothy Cowen | Preiskel & Co ***@***.***>; Mention ***@***.***>
Subject: Re: [patcg/patwg-charter] All Working Group members agree to licence input data for specifications on FRAND terms (Issue #30)


Briefly addressing @timcowen<https://github.com/timcowen>'s comment:

It was also observed that W3C standards are voluntary. That is not correct as a matter of competition law since they are in effect mandatory being endorsed by dominant browser owners (see further below).” - patcg/meetings#52 (comment)<https://github.com/patcg/meetings/issues/52#issuecomment-1169927141>

This does not reflect reality and reflects a comprehensive failure to understand how W3C and browser vendors are interlinked. Let's go through some examples:

  *   The relatively recent history of Internet Explorer.
  *   The Color module (Safari adopts, others have not yet done so) - https://www.w3.org/TR/css-color-4/
  *   The history of slow to sometimes nonexistent adoption of specific features by Safari, detailed in length here - https://infrequently.org/2021/04/progress-delayed/
  *   And the interop dashboard shows significant drift between stable browser releases - https://wpt.fyi/interop-2022?stable

None of this is intended by me to be critical of participants, but to demonstrate that major browser vendors adoption of standards is neither guaranteed nor specified by their participation in the W3C. If FLoC had reached a standard level, for example, it is almost certain browsers other than Chrome wouldn't implement it ( see<https://www.theverge.com/2021/4/16/22387492/google-floc-ad-tech-privacy-browsers-brave-vivaldi-edge-mozilla-chrome-safari> ).

Any attempt to use this group's charter or the W3C to bind user agents to particular legal terms is incompatible with how their membership in the W3C works. This includes FRAND. The only way one could attempt to integrate something like FRAND into user agent behaviors is to make it part of a standard so that when a user agent adopts it they would have to adopt FRAND to be considered compliant with the standard.

This is my concern with comments in regard to FRAND at this point, they reflect a fundamental misunderstanding of:

  1.  How the charter would work
  2.  How chartering in the W3C works
  3.  How the W3C works
  4.  How the standards process within the W3C works

Thanks to @jwrosewell<https://github.com/jwrosewell> and @timcowen<https://github.com/timcowen> I do believe we have heard this objection, and--thanks to their excellent and detailed work explaining it--I believe we have understood it sufficiently in this regard and recognized it.

@seanturner<https://github.com/seanturner> at this point I believe we should not further engage on the concept of adding FRAND into the charter. I do not see broad support and believe this to be a question of how W3C as a larger organization might choose to handle antitrust concerns, or of specific standards to which it might be relevant in the future. Do you agree?

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Received on Wednesday, 29 June 2022 17:39:26 UTC