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Ok. Let's do this. My fundamental position is that
the arguments offered by Lessing and the W3C are not
persuasive. They are based on undecidable propositions,
paranoid assertions, and assertions which can be
demonstrated to be false.
1. The web would not have emerged without non-royalty
based standards. (Note: specifications are issued
by the W3C; not standards. It is important to distinguish
specifications for systems to be created vs standards for
This is undecidable. Inventions have become standards
and are royalty-encumbered. It is possible and I
assert based on the amount of activity in the industry
that something similar to the web would have emerged.
It would not of necessity be controlled by the people
who control it now. It likely would be a similar system.
2. The open source community health is of vital importance
to the success of the web.
This is undecidable. The choice to use an open source economic
model is not without value, but it is not paramount. Given
the ubiquity of proprietary software, and the dominance of
the Microsoft operating systems, it is just as likely, perhaps
more, that the economic value of the web was vastly increased
by the MS hegemony. One can assert that it has thrived and
then and only then inquire into the reasons for its robustness
in the marketplace.
3. "process of standards creation should not be contorted,
subverted, and otherwise compromised by the private goals of
individuals or companies seeking to incorporate their patented
ideas into public standards"
This is paranoia. It asserts that this is the case
for individuals and companies. It is in effect, saying that
companies and individuals are guilty until proven innocent.
This is bad policy. Seeking to incorporate patented ideas
into public standards is not prima facie evidence of the
will or attempt to contort, subvert or compromise the public
good. It can be otherwise.
4. "unsustainable patents are increasing at an alarming rate,
swelling the patent portfolios of large companies dedicated to
stockpiling their arsenals of (they say) "defensive patents."
The first part of this is only decidable if the criteria for
"unsustainable" can be enumerated. In fact, the USPTO does
have policy for this. Why is this failing to work? This
is the problem to solve. In fact, the most productive response
the W3C can make is to show and prove that its technologies can
add value to this process. However, the validity of the claims
made for prior art must be investigated. In the cases of bad
patents cited, in at least one case of which I have personal
knowledge, the patent holder refused to investigate these
claims. If the claimnant cannot be required to exercise
due dilligence, the USPTO is not at fault.
The second part is paranoia. There is not proof that any
companies large or small or individual are "dedicated" to
stockpiling patents. Observation of behaviors does not
constitute proof of intent.
4. "implementation of open standards should not be impeded by
negative incentives arising from the legal requirement..."
The law is the law. This can be changed but the implementation
of open standards in no way is relieved of the obligation to
obey the law. This is a fanciful assertion. Like the open
source community, open source standards groups enjoy no special
privileges de jure.
5. "Standards organizations like W3C, ISO, IETF, and OASIS
would be well within their right to ask for voluntary, selective
non-enforcement of patents under their jurisdictions"
This is correct. It must be understood that the patent owner
has the right to refuse to do this. Both parties must accept
the consequences of their choices. It is possible that a
good technology will be standardized by other bodies. This
is irrelevant to the ownership of a patent, but pertinent to
the choice of the organization to which a patented technology
is submitted. A group has the right to constitute a different
organization for this purpose and to use as many resources as
available to market the technology and the organization. This
is how MPEG works and it is a well-recognized organization with
some successes and failures in promoting its artifacts of interest.
6. Reciprocal RF licensing represents one means of recognizing
intellectual property while eliminating the threat of (e.g. RAND)
royalty fees which could dramatically alter the balance of power
in favor of companies holding vast patent portfolios.
As stated, it represents one means. The MPEG organization is another
in which licensing is acceptable, payments are pooled and are made
to members. The concept of threat in this sentence is again,
7. "Sun backed that position up when it relinquished a set of IP rights
it had -- a move that cleared the way for the royalty-free use of the W3C standard for Xlink'..."
I am unaware that Sun has reqlinquished. AFAIK, it offered a license
acceptable to the W3C. Continuing royalty-free use is not insured.
Can someone show the agreement and make clear the terms and conditions?
8. "Standards bodies and industry consortia responsible for the
creation of open standards may look to the W3C for inspiration."
They might if they wish an example based on royalty free patents.
If not, there are other exemplars. Following these other exemplars
cannot be proven to be detrimental to open standards, the growth
of the web, or the balance of power.
9. RAND will hurt open source developers
Open source developers are not a privileged group.
o RAND discriminates against the poor (developers or developing countries)
Economic discrimination based on the ability to pay is not against the
law. It is against a moral imperative, but the concepts of value for
value are not immoral. They are discriminatory. So is choosing a
major brand over a boutique brand.
o The RAND / RF split will fragment the Web.
This cannot be decided. Simply getting a definition of "the web"
has occupied so much bandwidth that most have dismissed it as
being of interest to XML-Dev readers. It isn't likely that
proof for fragmentation can be provided.
o RAND is not in the best interest of the Web
See last item. This cannot be decided. The use of the
Microsoft operating system and WinTel platforms have made
it economically possible for many to enjoy the benefits
of the web resources. Value for value promotes value.
o RAND will stifle innovation and reduce choice
This is paranoia.
o RAND harms end users, not just developers
o Patents and standards are incompatible
This is demonstrably false.
o Universal access and RAND are incompatible
This is demonstrably false.
From: Robin Cover [mailto:email@example.com]
If you think RAND-licensed patents
are a good idea within the framework of Internet (open) standards,
-- in fundamental disagreement with W3C's draft RF policy and in
fundamental disagreement with Lessig, please say so and explain why.