- From: Seth David Schoen <schoen@eff.org>
- Date: Thu, 11 Oct 2001 20:55:54 -0700
- To: www-patentpolicy-comment@w3.org
Dear W3C Patent Policy Working Group Members: The Electronic Frontier Foundation (EFF), the leading civil liberties organization working to protect rights in the digital world, submits the following comments on the PPWG's draft patent policy. In general, the draft policy of August 16 makes progress in addressing the thorny patent issues standards groups may encounter. We join other commentators, for example, in supporting the proposed Disclosure Obligations in Section 7 of the draft. We focus our attention on the most controversial provision, Section 5.2, which creates a RAND ("reasonable-and-non-discriminatory") licensing mode for W3C Working Groups. Adopting this policy would mean that, for the first time, W3C would have a formal mechanism for promoting some patent-encumbered web standards -- with the knowledge that these standards could not be implemented by everybody. As WWW inventor Tim Berners-Lee observes in _Weaving the Web_, "patents ... are a great stumbling block for Web development. ... Small companies may be terrified to enter the business [in the face of patent claims]." Because of its harmful effects on smaller organizations, and the resulting risks to openness and interoperability on the web, we urge W3C to reconsider its support for a RAND licensing mode. The draft policy notes that participants in a standards body will be unwilling and unable to work collaboratively if, at the end of the process, the jointly-developed standard can only be implemented by meeting licensing terms that are unduly burdensome, unknown at the beginning or even the end of the design process, or considered unreasonable. This uncertainty is a significant risk to standards development, but participants are not the only beneficiaries of the process (nor the only parties whose support is called for). Where a standards body undertakes to develop public standards for general use -- clearly the aim of W3C standards work -- the larger community of prospective users and implementors also has a deep interest in standards' licensing terms. As the policy continues, this community has a "longstanding preference for Recommendations that can be implemented on a royalty-free (RF) basis". This "preference" must not be treated lightly; it has been essential to the success of the World Wide Web and the Internet as a whole, and one of the key features setting the Web apart from closed, proprietary content-delivery systems. Royalty-free web standards have provided the raw material for an explosion of creativity and the development of diverse but interoperable implementations. For many members of the web community, the RF licensing tradition is not merely a "preference", but a requirement. Royalty-based technology licensing, whether "discriminatory" or "non-discriminatory", grew up amidst large commercial players, who could typically afford a sizable licensing fee, accepting it as a cost of doing business. As you know, the World Wide Web community is much more diversified. It includes tiny startups, multinational corporations, individuals, non-profit organizations, consortia, libraries and archives, among other kinds of entities. Many of these participants are ill-equipped to cope with the one-size-fits-all world of RAND licensing, and have very different notions of what is "reasonable" or even "non-discriminatory". Much of the software which runs today's web is open source, like the W3C's own reference implementations. The world's most popular HTTP server package, Apache, is a leading example; W3C's own web site is using it, as is EFF's. But although a flat royalty structure might seem perfectly "reasonable" to a large corporation, the Apache Software Foundation -- and Apache licensees -- might well see things otherwise. Prospective implementors are all different, but when any implementor is left behind by a patent licensing system, everyone suffers. The draft policy attempts to distinguish between high-level and low-level web standards, in a largely informal way. Section 2.2, reporting on consensus within the Patent Policy Working Group, draws this distinction: [I]t is especially important that the Recommendations covering lower-layer infrastructure be implementable on an RF basis. Recommendations addressing higher-level services toward the application layer may have a higher tolerance for RAND terms. We agree that openness of infrastructure is particularly important. However, the distinction between infrastructure and higher-level services does not seem to be clearly drawn (nor does the policy appear to implement this consensus view in any specific way, e.g. by categorically forbidding the RAND licensing mode for certain Working Groups deemed "architectural"). Experience has shown that this distinction can be unstable; services once optional often become indispensable. We cannot stress enough that services originally conceived of as applications may eventually -- even rapidly -- come to be seen as infrastructural. For example, HTTP is often used as an example of an extremely high-level network protocol, yet it serves an infrastructural role, in turn, for other protocols like SOAP. We recognize that W3C cannot guarantee that none of its Recommendations will ever be encumbered by patent claims. W3C has no control over third party patent holders who are not W3C members, and there is no way to be absolutely certain that an encumbrance will not appear after a Recommendation has been issued or even implemented. (A troubling example is BT's hyperlink patent, which was definitely not foreseen as a risk to implementors of WWW user agents.) However, this does not mean that W3C should allow its members to use the W3C Recommendation process to knowingly promote encumbered technologies as public standards! W3C does have the ability to decline to endorse a standard where it is already aware of licensing problems (e.g. through the proposed disclosure requirements). It seems that the community strongly expects W3C to use that ability, and to preserve the existing RF tradition in the eventual W3C Patent Policy. EFF thanks W3C for extending the comment period and for the opportunity to comment on this draft. Please do not hesitate to contact us for any further information or clarification. Sincerely, Seth Schoen EFF Staff Technologist -- Seth Schoen Staff Technologist schoen@eff.org Electronic Frontier Foundation http://www.eff.org/ 454 Shotwell Street, San Francisco, CA 94110 1 415 436 9333 x107
Received on Thursday, 11 October 2001 23:55:56 UTC