- From: Simon Brooke <simon@beesianum.jasmine.org.uk>
- Date: Wed, 03 Oct 2001 16:23:02 +0100
- To: www-patentpolicy-comment@w3.org
Responding to RAND Author: [1]Simon Brooke Summary: this paper describes the W3C proposal to accept 'RAND' licensed technologies in W3C recommendations, the responses to it thus far, and action the free software community could take to defend itself against the consequences. Created: Wed Oct 3 09:30:22 BST 2001 Current version: [2]http://www.jasmine.org.uk/~simon/bookshelf/papers/rand-response.html _________________________________________________________________ Contents [3]The issue [4]Why does this matter? [5]Who is behind this proposal? [6]Responses so far [7]So what are we going to do about it? The issue The [8]World Wide Web Consortium (hereinafter 'W3C') has recently produced for public comment a proposed [9]draft policy on patents. Under this draft, members of the W3C would be permitted to advance as proposals, and have endorsed as recommendations, technologies on which they had already obtained patents. They would then be able to collect license fees from all implementers of the recommended technology. Why does this matter? Why does this matter? In practice, many other standards setting bodies - including the [10]ITU and the [11]IETF - have the same policy. But while ITU and IETF standards are frequently implemented in hardware, for which the principle of patents is internationally uncontentious, W3C standards have, to date, related exclusively to software. Most countries internationally do not recognise software patents as valid. Free Software Futhermore, and more importantly, hardware, because it has physical existence, cannot (yet) be duplicated at marginal cost, and consequently there is not currently any considerable free hardware movement. The contrast with the software used on the Web is stark. There can be very few significant Web sites anywhere which do not make extensive use of '[12]Open Source' or '[13]Free' software. This software is typically developed by volunteers, and is given to the community at no cost. It is not an understatement to say that the free software movement has [14]built the Web. This proposal effectively prevents the free software movement from continuing to have an effective part in Web development. Because no fees are collected for the distribution of free software, and the principle of free software requires that it should be capable of being passed on indefinitely, there is no means of tracking all the users of any free software module, let alone of charging them license fees. No level of license fees are 'reasonable and non-discriminatory' with respect to free software; on the contrary, any license fee automatically discriminates against all free software projects. The International Dimension It's also unclear how this proposal relates to international patent law; it seems to have been written from a narrow, US-centric perspective. As stated above, the view that software is patentable is to say the least an unusual one. Only half a dozen territories world wide recognise the legal validity of software patents; the American position on this does not by any means carry international concensus. Would [15]Opera, for example, based in Norway, be required to pay licence fees on RAND technologies in respect of users also based in Norway (or elsewhere in Europe), where software patents have no force? If so, on what legal basis would it be so required? Alternatively, would they be required to keep audited records of exactly what territories each of their users inhabited? If so, who would bear the cost of this? Why should Opera bear the cost of this? Who is behind this proposal W3C proposals, such as this one, are written by the members of W3C, not by its staff. The W3C has always been a rich corporations' club, and that has always been its key weakness: full membership costs US $50,000 per annum, and even associate membership costs US $5,000. In this case the authors are: * Michele Herman, Microsoft, micheleh@microsoft.com * Scott Peterson, Hewlett-Packard, scott_k_peterson@hp.com * Tony Piotrowski, Philips, tony.piotrowski@philips.com * Barry Rein, Pennie & Edmonds (for W3C), barry@pennie.com * Daniel Weitzner, W3C/MIT, djweitzner@w3.org * Helene Plotka Workman, Apple Computer, plotka@apple.com Are axes being ground? I personally find it deeply disappointing to see Hewlett Packard in that company. Hewlett Packard is one of the companies which has publicly acknowledged its (very considerable) debt to the open source community. It is not, however, surprising to see either Microsoft or Apple here. Microsoft has been publicly campaigning against free software for some time, describing it as '[16]a cancer'. Microsoft clearly sees free software as its most significant remaining competition. For an attack on free software to have originated with Micris no surprise. Apple pays a great deal of [17]lip-service to free software, but their track record on free software issues is by no means unblemished. It is a disappointment, of course, but no particular surprise to me to see them involved in this proposal. Responses so far I have read through all the responses to the proposal as of 3rd October. Up until 27th September there had been thirteen responses out of which only two had been on topic (the rest being UCE); of the on-topic responses [18]one had been against RAND and [19]one commented only on typographical errors. From the 27th of September onwards, as commuinity news sites became aware of the issue, the rate of comment rose dramatically, and although some responses misunderstood the proposal, the overwhelming proportion are well expressed, clearly written, and stongly against the proposal that RAND licensed technologies should be accepted as W3C recommendations. What key members of the community think about it From among the 1069 responses posted as of this morning I've tried to pick out those made by people I recognise as influential and authoritative members of the free software, Web and Internet communities. Here are those I found: * [20]Jeremy Allison (Samba) * [21]Tim Bray (editor of [22]XML 1.0) * [23]Ken Coar (Apache Foundation) * [24]Alan Cox (Linux Kernel) * [25]John Gilmore (Cygnus and Electronic Frontier Foundation) * [26]Eben Moglen (Free Software Foundation) * [27]Bruce Perens (Debian, Open Source Initiative) * [28]Tim O'Reilly (O'Reilly & Associates) * [29]Richard Stallman (EMACS, Free Software Foundation) * * and finally, [30]me (no, I'm not important) If I've missed anyone I shouldn't have, I'm sorry - blame tired eyes. I was particularly looking for comments by Brian Behlendorf, Eric Raymond, Larry Wall, Linus, Hakon Lie, Vint Cerf and Tim Berners-Lee, but if they were there I didn't see them. So what are we going to do about it? We have to face the fact that these days commercial companies have a lot of power on the Web. If AOL/Time Warner/Netscape, Microsoft, CNN, the movie studios and the big music companies get together to invent new, patented (in the US) Web technologies which won't interoperate with Open Source technology, then 90% of the Web using public will not notice. If they do notice, they'll blame our software for 'not working'. So we have to make a determined, co-ordinated grab for the moral high ground. I'm prepared to bet that W3C will be a bit shaken by the furore they've brewed up here, and I would endorse everyone else's suggestions that anyone who hasn't responded yet to the consultation document does so now, in calm, polite, grammatical, spelling-corrected words, explaining why you see 'reasonable and non discriminatory' license fees as unacceptable. This may in itself be enough. I hope it will, but I think we should prepare against the possibility that it won't. What should we do? I believe we should take immediate steps to set up a new, independent, standards setting body for the Web spearheaded by people with a wide international reputation with the avowed intention of forking the standards base and maintaining free, open, standards for the Web. Why not use the IETF? Why a new one, instead of working through the existing (and mostly admirable) processes of the IETF? Well, frankly, it would be better if we could got to the IETF, but unfortunately as detailed above their policy on patents is no different. In fairness, as discussed above, many IETF RFCs relate to hardware. But because of this, we cannot view the IETF as a safe owner for Web standards, and, indeed, we should perhaps reconsider whether it forms a safe owner for Internet standards. We should work to include the corporates who have already shown their commitment to Open Source into a broad coalition alongside the recognised open source projects, and seek to isolate Apple, Hewlett-Packard and Microsoft (the companies who actually authored this proposal). The long term objective is not to have two competing standards setting bodies: it is to hold over the W3C a credible threat of two competing standards setting bodies. In the face of that credible threat it's my opinion that W3C will rethink. If they don't, we would have to do this for real, but that is in my opinion very much a suboptimal option. _________________________________________________________________ [31]Simon Brooke Last modified: Wed Oct 3 15:28:00 BST 2001 References Visible links 1. mailto:simon@jasmine.org.uk 2. http://www.jasmine.org.uk/~simon/bookshelf/papers/rand-response.html 3. file://localhost/var/home/simon/tmp/rand-response.html#issue 4. file://localhost/var/home/simon/tmp/rand-response.html#why 5. file://localhost/var/home/simon/tmp/rand-response.html#who 6. file://localhost/var/home/simon/tmp/rand-response.html#responses 7. file://localhost/var/home/simon/tmp/rand-response.html#what 8. http://www.w3.org/ 9. http://www.w3.org/TR/2001/WD-patent-policy-20010816/ 10. http://www.itu.int/home/ 11. http://www.ietf.org/ 12. http://www.opensource.org/ 13. http://www.fsf.org/ 14. http://www.netcraft.co.uk/survey/ 15. http://www.opera.com/ 16. http://www.theregister.co.uk/content/4/19396.html 17. http://www.opensource.apple.com/ 18. http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Aug/0004.html 19. http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Sep/0005.html 20. http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Sep/0033.html 21. http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Sep/0436.html 22. http://www.w3.org/TR/2000/REC-xml-20001006 23. http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Sep/0434.html 24. http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Oct/0055.html 25. http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Sep/0736.html 26. http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Sep/0650.html 27. http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Oct/0027.html 28. http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Oct/0175.html 29. http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Oct/0018.html 30. http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Oct/0316.html 31. mailto:simon@jasmine.org.uk Hidden links: 32. http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Oct/0454.html
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