- From: David Woodhouse <dwmw2@infradead.org>
- Date: Thu, 04 Oct 2001 18:11:33 +0100
- To: www-patentpolicy-comment@w3.org
The definition of a RAND licence would appear to be in need of clarification. Quoting from the definitions listed at http://www.w3.org/TR/2001/WD-patent-policy-20010816/ (e) RAND License RAND stands for "reasonable and non-discriminatory" terms. A "RAND License" shall mean a license that: 1. shall be available to all implementers worldwide, whether or not they are W3C Members; 2. shall extend to all Essential Claims owned or controlled by the licensor and its Affiliates (except as described in section 8.2 concerning licenses relating to Contributions); 3. may be limited to implementations of the Recommendation, and to what is required by the Recommendation; 4. may be conditioned on a grant of a reciprocal RAND License to all Essential Claims owned or controlled by the licensee and its Affiliates. For example, a reciprocal license may be required to be available to all, and a reciprocal license may itself be conditioned on a further reciprocal license from all (including, in the case of a license to a Contribution, the original licensee). 5. may be conditioned on payment of reasonable, non-discriminatory royalties or fees; 6. may not impose any further conditions or restrictions on the use of any technology, intellectual property rights, or other restrictions on behavior of the licensee, but may include reasonable, customary terms relating to operation or maintenance of the license relationship such as the following: audit (when relevant to fees), choice of law, and dispute resolution. The concern of many people is that the above definition would permit patent licensing agreements which effectively prohibit the development of Free Software which complies with new standards, by demanding that a fee be paid per unit shipped, or per product/version released, or even per developer. Let us deal with these possibilities in turn. A licence agreement which requires a fee per unit shipped would effectively prohibit the use of the licensed technology in products which are intended to be shipped free of charge. It is clearly discriminating against such products. Therefore, any RAND patent licensing agreement must not impose a per-unit fee unless that fee is waived for gratis software. Furthermore, any licence agreement which requires a fee per product or per version released is clearly discriminating against Free (i.e. libre) Software, where the development model generally involves a rapid progression of interim releases, and many 'products' being evolved from a single source base. Therefore, any RAND patent licensing agreement must not impose a per-release fee unless that fee is waived for Free (libre) Software. It is equally clear that a per-developer payment model would also discriminate against the development model of Free Software, and is also not permitted. Indeed, it is also the opinion of many that to create a web 'standard' for which there cannot be a reference implementation which is both libre and gratis is in violation of the fundamental principles which made the World Wide Web successful, and is extremely unreasonable - thereby falling foul of the RAND licence definition on more than one count. In summary, my interpretation is that any patented technology must be unconditionally available for use in any Free Software in order to meet the definition of a RAND licence. I strongly recommend that the W3C clarify the definition of the RAND licence to make this situation obvious. I propose the addition of a seventh clause to the definition above: 7. shall be available unconditionally and without charge for the development and use of free software which is intended to implement the Recommendation. This, or similar, wording, would explicitly allow the development of free implementations of future standards, while limiting the required licence grant to the minimum that is reasonable and hence allowing the patent holders to maintain a revenue stream from the licensing of the patented technology to commercial third parties. -- dwmw2
Received on Thursday, 4 October 2001 13:11:39 UTC