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RE: [xml-dev] Cutting special deals for open source developers --noway!

-----Original Message-----
From: Jonathan Borden [mailto:jborden@mediaone.net]

Bullard, Claude L (Len) wrote:

> That is in fact, the climate you do work in.  Patents
> have been applied for and granted.  In general, the
> W3C has been specifying technologies that are for the most
> part based on work done previously in government groups,
> universities etc and some of these are patented.  The MIT
> suits are an example.

>>Patents may be granted, but their 'force' depends at least in part upon
>>they are acknowledged. The mere possession of a patent means nothing - in
>>and of itself - rather it is the threat of legal suit, actual force of
>>or simply the reaction of the community that makes a patent more than a
>>scribbles on a piece of paper somewhere.

That is not wrong but a little narrow.  The patent process has a goal 
and both the force of law and the community reaction need not be at 
odds here.   The possession of the patent grants property rights.  The 
reality is that members of the community have to ensure that patents 
which affect their work are valid.  This is proving to be expensive 
and some way to bring that expense down has to be found.  The parts 
of the patent policy that require acknowledgement are a step in that 

>W3C Recommendations intended to be an agreed upon standard practice. The
>Internet/WWW community does not need to accept such practices if they are
>truly proprietary, and more importantly the Internet and WWW communities
>_should not_ give credibility to the vast majority of these patents.

I agree that proprietary or patented technology should not be a common 
practice.  I think such should be used only in the extreme cases where 
the excellence of the technology confers substantial benefits to the 
community of use.  Otherwise, a better solution can be found.  As to 
credibility, how credible is an organization that overlooks the norms 
of the standards community at large, the laws of its local governments, 
and the practices of its business members?  Not very.  If by this, you 
mean the scumbag patents taken out merely to extort, I agree.  Such 
should be fought tooth and nail.  It will take effort to know which is
Consider the economists just given a Nobel Prize for observing that 
control of information affects markets.  Duh.  But there it is.

What about Sun, Jonathan?  Did RF legitimize a bad patent and did everyone 
simply lay down because of RF?  XPointer is still encumbered.  Apparently, 
so is SVG?  What is to be done?  Would it not have been better to have a 
policy in place before Adobe quietly tightened a leash around SVG?

>> That is something you
>> may want to look into.  The claims of a norm for freely
>> giving away company assets to engender company profits
>> is to put it mildly, extraordinary.

>What is your point? Are you suggesting that every proprietary piece of VB
>code become a standard? 

Ad absurdam.  Of course not.  On the other hand, if it is proprietary as 
you say, it is not ours to do with as we please.  I am saying that if your 
company does have a policy about information you "give away" in spec
you might want to be aware of it.  Not being aware is not responsible.  And 
freely giving away valuable assets is not normal.   Again, responsible and 
professional standards bodies have been aware of and responded to this 
problem for some time now with carefully crafted policy.

>We really really need to think about what ought to
>and what ought not become a standard. 

I agree.  Cherry picking projects better, ensuring that all precautions 
are taken, inquiries made, and responses understood in advance of standards 
work is the norm for standards work.  It isn't the norm for the W3C
process and several expensive and excellent pieces of work are now
That tells me we should also look very critically at bodies that have taken 
it upon themselves to create standards and examine their credibility.
to provide policy that would be considered the norm for other bodies that 
successfully do that work does not add to their credibility.   Beyond that,
we have to look 
at the community being represented and inquire into its rights and claims.
The W3C is not a body that represents public interest.  It represents 
commercial entities.  The nature, powers, rights and restrictions of such 
entities scopes the definitions of the products it produces.   I do not 
think the W3C is a credible standards body because a standard, in my 
opinion, reflects and protects public interests, not private interests. 
The W3C is a specification body and in that role reflects the interests of 
its members adequately.  If it stumbles over a patent, it affects the 
commercial entities.  Standards should be sought elsewhere.  Given 
that specifications can become standards, the cooperation of the 
W3C with legitimate public standards bodies is very necessary.

>What is so extraordinary about
>demanding that any language that we _standardize_ for intercommunications
>freely implementable?

Nothing at all but I have claimed nothing to the contrary.  I said that 
claiming a norm for giving away the property of others is extraordinary. 
I repeat: being Robin Hood is romantic but still a hood.

>> Commerce One just laid off almost half of its work force.
>> Did freely implementable ideas help that to happen or
>> prevent it?  Was it a factor at all?

>How have W3C Recommendations _hurt_ CommerceOne? If there were no Internet
>there would be no CommerceOne in the first place. 

I don't know in either case.  A valuable patent portfolio would help 
its book value.  The scary thing is that the concepts over which 
CommerceOne has built its business are excellent and free and the 
results are the same.

>This recent stockmarket
>bloodbath was the direct result of alot of misconceptions regarding the
>Internet (IMHO), particularly the one that any one company could in some
>"own" a significant piece of the internet (hence justifying the initial
>ed valuations). 

Speculative investments often work that way.  However, the bloodbath is not 
about the "ownership" at all.  It is about the failure to make profit and 
return on investment.  This isn't about the commons; it is about the stock 
value of companies some of which lied to investors, a press that spread that
and a public greedy enough to risk substantial sums on that lie.   The
industry lied; the public believed it; everyone lost money.

>Imagine software patents didn't exist. Would every VB demo
>have been worth 2 billion dollars? No raised expectations, no crash.

You are begging your position.  As so many of you have been pointing out, 
that environment thrived on a myth of free ideas and concepts.  The 
expectations were not based on that.  They were based on a myth of 
limitless growth without the need to show profits.  Classic stock bubble.

>> This is why special deals for open source developers are
>> unwise.  It suggests that the value of assets can be
>> applied in ways counter to their intent which is to
>> exact licensing fees.  Fair for all or none.

>I agree with this point. Standards should be freely implementable by all.

Not in every case.  There can be cases where the excellence of the 
technology ensures that the public interests are best met by licensed 
technology.  I think this will be the exception.

>Requiring a conformance test -- e.g. as Sun has done with XPointer -- as
>long as such a conformance test can be reasonably specified, is fine, but
>anything a candidate for _standardization_ should be openly and freely

The Sun patent is the primary example of a patent that should have been 
refused and for which, the W3C should not have provided support.  There 
is clearly prior art.  This is where the system broke and why the patent 
policy is extremely important to hone for the W3C specifications.