RAND licensing mode bad idea

At the Scholarly Technology Group we share the concerns expressed by
Alan Cox, John Gilmore, Theo de Raadt and numerous others with the
proposed inclusion of a so-called "reasonable and non-discriminatory"
(RAND) licensing mode in the charters of W3C Working Groups. The
"Response to Public Comments on the W3C Patent Policy Framework
Working Draft" states:

     "W3C recognizes that a Royalty-Free environment was essential to
     the growth of the Web, and the contributions of the open source
     developer community have been critical to its success. W3C also
     recognizes that software patents exist (and patent issues have
     become more prevalent with the growth of the Web), and ignoring
     them will do more harm than good. W3C is working hard to reach
     concensus in an area where there is an obvious tension, and to
     strike a balance among diverse interests."

We find a curious non-sequitur between the first and second
sentences. You assert the "essential" and "critical" role of a free
and open development environment, an assertion we agree with
wholeheartedly. However, it remains unclear how patented software
could or would be similarly critical to success. We know of no case
where patented software would have made a critical difference to the
success of the Web. For example, GIF, while widespread, could easily
have been replaced by PNG or another format had the patent issues
surfaced in a timely manner.

It is widely acknowledged in the computing community that many,
probably the overwhelming majority, of software patents should never
have been granted, due to obviuosness, prior art, or both. The fact
that patent applicants have no obligation to make any attempt to
discover prior art, and the fact that the PTO is grossly understaffed
and underequipped to avert bogus patents make this entirely
predictable.

At least in the United States, patents exist for the purpose of
promoting human understanding, not for the purpose of increasing
individual, let alone corporate, profit:

	The Congress shall have Power ... To promote the Progress of
	Science and useful Arts, by securing for limited Times to
	Authors and Inventors the exclusive Right to their respective
	Writings and Discoveries;
		-- U.S. Constitution, article I, section 8

The Constitution tolerates the monopoly of patents only as a means to
an end -- to promote the progress of knowledge and learning. In the
case of the Web it is clear that promotion of the arts and sciences
has occurred and can still occur without relying on state-guaranteed
exclusive rights to profit.

Secondly, no one is asking that you "ignore" the question of software
patents, only that you take a principled stand and insist on a
Royalty-Free licensing mode. As the de facto standards body for the
Web your first consideration should be to strongly defend the people
and processes that have - by your own admission - been responsible for
the Web's extraordinary growth.

The comments you have received clearly show that the supporters of
open source software do not perceive THEIR interests to be served by a
RAND licensing model, so why do you? Within the business community
itself, most small businesses will have neither any chance to
participate in the "trading card" model of patent cross-licensing nor
the resources to make and administer numerous license payments.

As many have noted, patents strongly favor large corporate interests,
often at the cost of technical, community, and national interests.
Since the Web has achieved outstanding success without needing
patented technologies, and since the W3C has the leverage to continue
that noble tradition, we consider it incumbent upon the W3C to stand
firm and utterly reject including any non-free technology in a W3C
standard. Corporations that wish can stay outside the standards
process; we consider the chance of some critical technology having no
workaround to be extremely small (indeed, the workarounds are
frequently better than the patented method, as PNG is arguably better
than GIF, in part because of the absurdly low bar the PTO presently
sets for patents).

Corporations can and will look after their own interests, that's why
they have patent lawyers. We think you should make it a matter of
principle that if those corporations wish to participate in
establishing the standards that will shape the future of the Web, they
must leave the lawyers at home.

-- 

Scholarly Technology Group
Brown University
www.stg.brown.edu
Box 1841, Brown University, Providence RI 02912

Received on Thursday, 4 October 2001 09:45:40 UTC