[xml-dev] [Fwd: W3C ridiculous new policy on patents]

[David Brownell <david-b@pacbell.net>]

Forwards removed.  Did I miss a discussion on this topic
from this list?  Such a fine opportunity for W3C bashing... :)

Among other things:  "This Last Call will be the only stage
open for public comment".  Yep, comment period ends
tomorrow/today, Sunday 30-Sept (EST?).


> >From: "Adam Warner" <usenet@consulting.net.nz>
> >Date: Sat, 29 Sep 2001 02:32:29 +1200
> 
> Hi all,
> 
> I have prepared a document dicussing the W3C's Patent Policy Framework
> that is available on my web site at:
> 
> http://www.openphd.net/W3C_Patent_Policy/draft.xhtml
> (Plain/print version)
> 
> and
> 
> http://www.openphd.net/W3C_Patent_Policy
> (Web site version)
> 
> I have also included the document below in the event that my web site
> becomes inaccessible.
> 
> Please give the issues I have raised careful consideration and provide
> the W3C with a comment by Sunday if you have concerns about this issue
> (by emailing www-patentpolicy-comment@w3.org).
> 
> *** Everyone, this is not an operating system advocacy post. There is no
> reason Linux and Windows users cannot unite to protect royalty-free web
> standards ***
> 
> Regards,
> Adam Warner
> 
> 
> 
> W3C and the Promotion of Fee-based Standards for the Web
> Adam Warner
> 
> On 16 August 2001 the W3C made public a proposal to substantially change
> their patent policy framework. Amongst the changes is support for a new
> licensing model (called RAND) that legitimises the W3C's role in
> developing and promoting standards that could require the payment of
> royalties.
> 
> This is a substantial shift in the philosophical direction of the W3C
> and should be of extreme concern to anyone who values being able to
> implement W3C standards in a royalty-free manner. In particular this has
> profound implications for the support and implementation of future W3C
> standards by the free software community. It is likely to extinguish
> free software development and deployment in the areas where the payment
> of royalties is required.
> 
> The last call review period closes on 30 September 2001 (two days from
> the time I am writing this abstract). The W3C is aware of the importance
> of this issue and states "As the policy has ramifications on the Web
> community at large, and as the Web Community have consistently helped
> W3C in its efforts, views from this diverse community are essential."[1]
> However, as evidence of how well this issue has been publicised, only
> two relevant public comments have been made to the W3C archive to date.
> It is a matter of urgency that you make your views known. A final policy
> is expected from the W3C by February 2002.
> 
> Please email all comments or suggested corrections to this document to
> comment@openphd.net.
> 
> This draft is copyright Adam Warner, 28 September 2001. It may be
> distributed freely.
> 
> Table of Contents
> 
> An Overview of the W3C
> 
>     W3C Recommendation Process
> RAND Licensing
> 
>     Legitimising RAND
>     Back-door RAND
>     RAND in Action
> What You Can Do
> Essential Reference
> 
> 
> An Overview of the W3C
> 
> The World Wide Web Consortium (W3C, http://www.w3.org) has been highly
> successful to date in its pursuit of "leading the Web to its full
> potential". It actively promotes vendor neutral open and universal
> standards. Its membership is to be commended for its ability to achieve
> consensus and coordination with other standards bodies and consortia.
> 
> The W3C has over 500 member organisations and approximately 66 full-time
> employees. Even large and influential companies have only one vote at
> the Advisory Committee level.
> 
> Tim Berners-Lee, the Director of the W3C
> (http://www.w3.org/People/Berners-Lee) is also the inventor of the World
> Wide Web. The W3C is a distinguished organisation producing quality
> specifications, guidelines, software and validation tools.
> 
> The W3C is involved in these important areas:
> 
> * The architecture domain (e.g. DOM, the Document Object Model).
> * Document formats (e.g. HTML, mathematics and graphics).
> * Interaction (e.g. multimedia).
> * Technological and societal issues (e.g. privacy, encryption and the
> legal issues).
> * Web accessibility initiatives (e.g. for user agents and authoring
> tools).
> 
> Crucially the work of the W3C is available to all.
> 
> The W3C has an ongoing role in the development of the World Wide Web
> from purely static document hosting to dynamic documents, application
> services and automated applications. W3C Recommendation Process
> 
> The W3C recommendation process typically follows a five step procedure:
> 
> * Interested parties submit notes to the W3C.
> * A working draft is produced (these typically come with big
> disclaimers, and their citing as anything other than work in progress is
> inappropriate).
> * Candidate recommendations are made.
> * A recommendation is proposed (this means the working group has reached
> consensus and the work has been proposed by the Director to the Advisory
> Committee for review).
> * Recommendation. These have been ratified and can be relied upon to not
> change.
> 
> The W3C's Patent Policy Framework is at the Working Draft stage. The
> Working Draft plainly states: "This Last Call period will be the only
> opportunity for public comment."[2]
> 
> Remember that "The Last Call period closes 30 September 2001."
> 
> Furthermore, "As we have begun to use portions of the policy in the
> day-to-day operations of W3C, we plan to skip the Candidate
> Recommendation and move directly to an Advisory Committee Review of a
> Proposed Recommendation draft." Later in this article I will show some
> of the consequences of this in the release of the Scalable Vector
> Graphics (SVG 1.0) Recommendation.
> 
> 
> RAND Licensing
> 
> This is the new licensing model the W3C is proposing that will allow for
> non-royalty-free standards to become W3C sanctioned recommendations.
> RAND stands for "Reasonable And Non-Discriminatory" terms. "RAND means
> that someone may or may not need to pay a fee, and that it is at the
> discretion of the license holder."[3]
> 
> In essence it requires that any company that imposes licensing
> restriction must impose those restrictions uniformly (the
> non-discriminatory part of the definition). It appears to follow that
> non-commercial organisations cannot be given any preferential treatment
> over commercial organisations since that would be discriminatory
> licensing.
> 
> The Working Draft (http://www.w3.org/TR/patent-policy/) (reproduced in
> the Patent Policy Frequently Asked Questions,
> http://www.w3.org/2001/08/16-PP-FAQ) also states that RAND allows for
> licensing audits (RAND "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.")
> 
> 
> Legitimising RAND
> 
> The W3C states that "Recommendations addressing higher-level services
> may be appropriate for licensing on reasonable and non-discriminatory
> (RAND) terms." It is clear that "patent processes will increasingly
> affect the Web. These factors make it clear that the W3C must have an
> effective policy to address the inevitable increase in patent issues
> that will come before the W3C Membership and the development community
> as a whole." What isn't clear is that the appropriate response is for
> the W3C to condone RAND licensing terms and to actively promote non-free
> licenses.
> 
> As part of the theoretical underpinning of this new policy we are told:
> "On the other hand, there are other technologies, typically higher
> level, where it might be appropriate to accept fee-bearing requirements
> in a Recommendation. It is worth restating that, as of today, W3C is not
> aware of any fee-based license required for any of its Recommendations.
> Thus, there is an established history of RF [Royalty Free]."
> 
> This distinction between lower and higher level technologies appears to
> be somewhat arbitrary and misleading. Any technology that becomes
> sufficiently used on the World Wide Web will become a part of everyday
> infrastructure. For example it might be considered that a moving picture
> format is sufficiently high level for RAND licensing to be appropriate.
> But if that moving picture format becomes an integrated baseline
> technology in future products then the chance of a future fee being
> associated with that technology could be devastating.[4]
> 
> The W3C has recognised the pressures from (some of) its members to be
> able to exploit the potentially lucrative Internet-related patents they
> have been accumulating. There appears to be a resignation that it may be
> better for the W3C to promote standards that have non-free conditions
> attached rather than to receive no consensus on potential
> recommendations.
> 
> However by doing this the W3C is diminishing the significant tool they
> have to encourage royalty-free licensing: their official stamp of
> approval on Internet technologies and credit to the companies that
> provide those technologies. The support of the W3C is an important
> factor for a web-based standard to achieve dominance. A company might be
> willing to provide their intellectual property on royalty-free terms to
> receive W3C approval and thus an increasing chance for their sponsored
> standard to become widely adopted. Now those same companies may think
> they can get the best of both worlds: A W3C recommendation and the
> reserved right to charge licensing fees in the future.
> 
> The prospect of future fees could also have a chilling effect upon
> free/open source software development. Standards that require licensing
> fees to implement are, for obvious reasons, totally incompatible with
> the use of free software. If the free/open source software communities
> will not be able to rely upon the W3C to pursue royalty-free standards
> the question has to be raised whether the support of a new institution
> is appropriate. Given my admiration for all the W3C has contributed to
> the development of the World Wide Web this would be a tragic
> development.
> 
> 
> Back-door RAND
> 
> If an Advisory Committee Representative to the W3C (each member
> organisation of the W3C has an ACR) fails to respond to requests for
> patent disclosures by default "they will commit their Member company to
> license all Essential Claims needed to implement W3C recommendations on
> at least RAND terms. This is true whether any personnel from the Member
> company participates in a WG or not."
> 
> This means oversight, negligence or perhaps deception is rewarded by
> requiring the commitment to a RAND license rather than a royalty-free
> one. If a relevant patent was disclosed at the appropriate time it might
> have been worked around, or the working group may have even disbanded.
> For members to face a financial incentive to disclose there should be a
> deterrent in the form of royalty-free licensing. Few things would be
> more lucrative than being entitled to charge RAND fees on an established
> W3C web standard though a simple oversight. RAND in Action
> 
> Even though RAND is only a Working Draft and public comment has for the
> first time been solicited (and very shortly closes) the W3C has already
> begun using RAND in its day-to-day operations. This can be seen in the
> recently released Scalable Vector Graphics Standard (SVG 1.0):
> http://www.w3.org/2001/07/SVG10-IPR-statements.html
> 
> Apple, IBM, Eastman Kodak and Quark have all only been willing to supply
> their intellectual property or potential future intellectual property
> under RAND licensing terms. This means that in the event that one of
> their patents overlap the SVG specification they have reserved the right
> to start charging royalties or set other licensing restrictions upon a
> non-discriminatory basis.
> 
> Presently the SVG specification is free to use. The uncovering of a
> favourable patent or a legal reinterpretation could change that. For
> example it is stated: "Kodak does not believe it currently has any
> essential claims that fall within the specification of the
> Recommendation as currently understood and interpreted by Kodak for
> implementors of SVG. However, Kodak hereby identifies U.S. Patent
> 5,459,819 and affirms that in the event that any claim of this patent is
> interpreted as an essential claim within the specification of the
> Recommendation in its current or later amended form, Kodak agrees to
> provide a RAND License as set forth in the previous paragraph."
> 
> The significant change here is that Kodak (as a particular example) are
> not giving standards users an assurance that they will be able to
> continue to use SVG on a royalty-free basis in the future. A windfall
> judgement and we could have a problem of GIF-style proportions--even
> though SVG is a W3C sanctioned standard and the company potentially
> doing the enforcing helped create the standard for people to freely use
> in the first place. Users could feel far more secure that SVG will
> remain a free standard if for example Kodak said that in the event that
> any claim of their patent is interpreted as an essential claim within
> the specification of the Recommendation in its current or later amended
> form, Kodak agrees to provide a royalty-free license.
> 
> 
> What You Can Do
> 
> 1. As a matter of urgency, send a comment to
> www-patentpolicy-comment@w3.org before 30 September 2001. You can check
> out the current archive of responses here:
> http://lists.w3.org/Archives/Public/www-patentpolicy-comment/.
> 2. Spread the word about this issue as soon as possible.
> 3. Ask companies that are members of the W3C to give an undertaking to
> only support the development of royalty-free standards. This will
> require significant change to the Working Draft of the W3C's Patent
> Policy Framework.
> 4. Do you have a professional relationship with any of the authors or
> companies of the Working Draft? If so it may be appropriate to send a
> message to the relevant organisation. These are the listed authors of
> the Working Draft:
>    * 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
> 
> It is also stated here: http://www.w3.org/2001/08/patentnews that "W3C
> Members Apple, AT&T, Hewlett-Packard, IBM, ILOG, Microsoft, Nortel
> Networks, The Open Group, Philips Electronics, Reuters, and Sun worked
> on this draft together with W3C Team members."
> 
> Essential Reference
> 
> W3C Patent Policy Framework, W3C Working Draft 16 August 2001:
> http://www.w3.org/TR/patent-policy/
> 
> Backgrounder for W3C Patent Policy Framework:
> http://www.w3.org/2001/08/patentnews
> 
> Patent Policy Frequently Asked Questions (FAQs):
> http://www.w3.org/2001/08/16-PP-FAQ
> 
> SVG 1.0 Patent Statements:
> http://www.w3.org/2001/07/SVG10-IPR-statements.html
> 
> Notes
> [1] http://www.w3.org/2001/08/patentnews
> [2] http://www.w3.org/TR/patent-policy/
> [3] http://www.w3.org/2001/08/patentnews
> [4] For example, a scenario where the majority of future web appliances
> included this decoding ability in their ROM.
>