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Len,
Thanks for clarifying what you say is your
"fundamental position," viz., "that the
arguments offered by Lessing and the W3C
are not persuasive" with respect to patents
and open standards.
I wish I knew *which* arguments from Lessig
you find especially "not persuasive" given that
he covers a lot of territory in his latest
book, "The Future of Ideas: The Fate of the
Commons in a Connected World," referenced at
http://lessig.org/
I strongly recommend the reading of his book
by anyone who wishes to think critically about
intellectual property assumptions and attitudes
in our decade. Would that it could be made
required reading for govt policy-makers.
Lessig tries to thoughtfully call into question
the unchallenged legal assumptions that (e.g.,)
allow a common tune to be "owned" for decades (you
can whistle it in your shower, but in a public
place, make sure to count how many people
are within earshot of the whistle) and in
general, the whole notion of first-claimed
patented ideas as "property" of any kind. In
the broader sweep, he tries to help us understand
how we got where we are today, and where we are
heading if we maintain the current trajectory.
(Rockets do funny things, of course.)
Lessig's book probably requires a certain level of
preparedness and assent. If you can read
the following and find the (reported) statement
of Q. Todd Dickinson unremarkable, you may not
qualify as a prime candidate for Lessig's
audience:
A presentation "What are Business Methods?"
by Brian Kahin (Center for Information Policy,
University of Maryland) reports the following,
based upon a [5/24/00] interview with
Q. Todd Dickinson (Director, US Patent and
Trademark Office): Question, by Tim O'Reilly:
"How would you feel if a lawyer was able to
patent an argument? Answer by Q. Todd
Dickinson: If it was new and nonobvious,
I wouldn't have a problem with it at all."
http://www.ftc.gov/opp/intellect/020411briankahin.pdf
XML-DEV may not be an optimal venue for this
discussion, since policy-makers don't hang
out here. Remember also that the draft
document "Patents and Open Standards" at
http://xml.coverpages.org/patents.html was not
originally referenced on XML-DEV by me, and I
don't intend to promote it. It's just a
reference collection and a thinking document.
However, I feel some obligation to answer a few of
your arguments. I found myself agreeing with many
statements -- as bare propositions in the abstract;
I think this means we are not in fundamental
disagreement as to principle, most of the time,
but may differ in the application.
1. "Demonstrably false" propositions
You pronounce the verdict "demonstrably false"
of two sentiments expressed in email messages
sent by the public to W3C on the RAND topic
----------------------------------------------
>o Patents and standards are incompatible
>
>This is demonstrably false.
>
>o Universal access and RAND are incompatible
>
>This is demonstrably false.
----------------------------------------------
The statements "Patents and standards are
incompatible" and "Universal access and RAND are
incompatible" represent rubrics, not literal
utterances. [In general, I think your response falters
on excessive literalism, as you tend elevate
arguments to the level of syllogistic premises
and say the argument fails to attain to proof
under rules of decidablity.]
The two rubrics were constructed by administrative staff
at W3C (Patent Policy Working Group,) in the
categorization of email messages; the relevant document [*]
was constructed as "a summary of public comments" from
the archive [**]
* "Public Issues for Patent Policy Framework of 20010816"
http://www.w3.org/2001/11/PPF-Public-Issues.html
** Comment Archive
http://lists.w3.org/Archives/Public/www-patentpolicy-comment/
Both statements are subsumed under a broader heading composed
by the W3C team, "Discrimination, fragmentation". So, if
you read (some of) the 945 messages grouped under the
general heading [RAND:] "Discrimination, fragmentation", you
will see the argumentation from the readers in place of the
two constructed rubrics. What is intended (e.g.,) is not a
flat literal assertion "Patents and standards are incompatible"
to be taken in the sense you apparently elect ("It is
impossible for patents and standards to co-exist [happily]")
-- which may indeed be demonstrably false; what is meant by
the readers is that the core ideas of "patent" (a government
licensed monopoly) and "standard" (something lots of people
need to agree to use) are potentially in tension, since the
owner of the monopoly can set his/her own price on the
use of the licensed idea under his/her exclusive control.
So I don't think your characterization of the W3C's rubrics
is defensible hermeneutically.
2. Web emergence and RF
>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
>systems.)
>
>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.
I assume you are referring to comments made by W3C's
Daniel J. Weitzner in the FTC/DOJ joint hearings:
http://xml.coverpages.org/ni2002-04-27-a.html
http://www.w3.org/2002/04/doj-ftc-patent-testimony-weitzner.html
Note however that Tim Berners-Lee has expressed a similar
opinion ("Royalty Free essential ingredient to Web phenomenon;
Assumption RF at founding of W3C; Much new growth can be built
on new foundations if and only if RF" - see slides).
http://www.oreillynet.com/cs/weblog/view/wlg/1390
http://www.w3.org/2002/Talks/www2002-tbl/slide20-0.html
http://www.w3.org/2002/Talks/www2002-tbl/slide21-0.html
On one level (extreme literalism), I completely
agree that the matter is "undecidable." But Weitzner and TBL
understand the logical flaw in "hypothesis contrary to the
facts" as well as you do. Their testimony of personal belief
is that the absence of royalty fees has been critical in Web
development; they (apparently) feel that adoption and deployment
of the Web would have been slowed by royalty fees attached to
the use of key protocols (e.g., TCP/IP, HTTP, FTP, HTML, XML,
P3P, CSS, XSL, SVG, etc. etc.) Note that this list mixes
genres: I fail to see your point in distinguishing finely
between "specifications" and "standards"; SGML is a standard
while XML is a specification, but in the context of this
discussion I don't think it matters if both are royalty-free.
Can Weitzner and TBL offer proof (make the case 'decidable',
to use your term)? I doubt it. Would "something
similar to the web" have emerged apart from TCP/IP, HTTP,
FTP, HTML, XML, etc? Probably. Might it have been better
than what we have now? Maybe. Would creative experimentation
and innovation have been retarded if we had had to pay "by the
bit" for TCP/IP packets under RAND patent terms? Most people
believe so. Can't prove it, of course.
Your assertion ("I assert based on the amount of activity
in the industry...") is also undecidable.
So indeed, the most you can claim is that you find the
arguments of W3C and Lawrence Lessig "not persuasive"
personally.
In the general case, I don't find your selected criteria
("proof", "decidability") very useful. Most of the
decisions I make every day are based upon undecidable
propositions; I reason abductively (CS Pierce) and
make subjective judgments on probabilistic grounds.
So what?
3. Open source
>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.
I agree that it's "undecidable" because we have difficulty
framing the notions "community health", "vital importance",
and "success" in quantifiable, testable language. So what?
Everybody chooses. On every UNIX system I've used (since the
mid 80s), the system administrators have ripped out the
standard system utilities (SCO, BSD, SystemV, SunOS, etc.)
and installed corresponding GNU utilities, typically 100-1000%
more powerful than the native tools shipped with the UNIX
systems. Yet I've heard red-faced capitalists revile
GNU/FSF as a "communist" organization that was making life
miserable for UNIX system vendors -- too expensive to build
quality toolsets: "it's unfair to upset legitimate capitalist
markets with free software contributed by armies of volunteers..."
A model of economics that can only measure using dollars is
deficient, and FSF proves it. I still choose open source. I
choose also to be activistic against "MS hegemony" and all
other forms of monopoly that I perceive are detrimental.
I can't *prove* they are detrimental, or that RF isn't worse.
So what?
4. Concern over patent proliferation
>"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.
There is absolutely no "paranoia" here. [IMO, you should not
use this term to describe your colleagues unless you are
licensed clinically and your colleagues are your patients;
in that case, your clinical appraisal would not be made
public on XML-DEV. "paranoia" is ad hominem.] If the
unnecessary rhetoric is removed to yield:
"patents applications are increasing substantially,
fueled by a perceived need to accumulate patents
for defensive purposes, according to the testimony of
large firms such as IBM and HP..." then every assertion
can be backed up with decidable "proof" satisfactory to
any reasonable person. Whether these concerns about patent
proliferation, deliberate patent accumulation, and
the potential negative effect upon companies incapable of
amassing large patent pools constitutes "paranoia" should
be left to our readers.
Documentation:
A. "Navigating the Patent Thicket: Cross Licenses, Patent
Pools, and Standard-Setting." By Carl Shapiro. University
of California at Berkeley. March 2001.
http://haas.berkeley.edu/~shapiro/thicket.pdf
"In several key industries, including semiconductors,
biotechnology, computer software, and the Internet, our
patent system is creating a patent thicket: an overlapping
set of patent rights requiring that those seeking to
commercialize new technology obtain licenses from multiple
patentees. The patent thicket is especially thorny when
combined with the risk of hold-up, namely the danger that
new products will inadvertently infringe on patents issued
after these products were designed. The need to navigate
the patent thicket and hold-up is especially pronounced
in industries such as telecommunications and computing in
which formal standard-setting is a core part of bringing
new technologies to market. Cross-licenses and patent
pools are two natural and effective methods used by market
participants to cut through the patent thicket, but each
involves some transaction costs...
...Our current patent system is causing a potentially
dangerous situation in several fields, including biotechnology,
semiconductors, computer software, and e-commerce in which a
wouldbe entrepreneur or innovator may face a barrage of
infringement actions that it must overcome to bring its
product or service to market. In other words, we are in
danger of creasing significant transactions costs for those
seeking to commercialize new technology based on multiple
patents, overlapping rights, and hold-up problems. Under
these circumstances, it is fair to ask whether the pendulum
has swung too far in the direction of strong patent rights,
ranging from the standards used at the Patent and Trademark
Office for approving patent applications, to the secrecy
of such applications, to the presumption afforded by the
courts to patent validity, to the right of patent holders
to seek injunctive relief by insisting that infringing
firms cease production of the offending products. Under these
circumstances, we can ill afford to further raise
transactions costs by making it difficult patentees
possessing complementary and potentially blocking patents
to coordinate to engage in cross-licensing, package
licensing, or to form patent pools. Yet antitrust law can
potentially play such a counterproductive role,
especially since antitrust jurisprudence starts with a
hostility towards cooperation among horizontal rivals..."
B. An excerpt from the presentation by Timothy J. Muris
(Chairman, US Federal Trade Commission) made before the
American Bar Association, Antitrust Section Fall Forum
(Washington, DC; November 15, 2001), posted at
http://www.ftc.gov/speeches/muris/intellectual.htm
"...in recent years, the number of patents issued annually
by the Patent and Trademark Office ('PTO') has increased
substantially. In 1980, for example, the PTO issued roughly
66,000 patents. Twenty years later, the number had
increased more than two and a half times to over 175,000.
Commentators have suggested many explanations for this
increase, including the growth in innovation spurred
by changes in the management of research; the need
for companies to protect themselves against infringement
suits with blocking patents; the increased
consciousness among the business community of the
financial gains to be achieved through patent mining;
and creation of the Federal Circuit. Regardless
of the reasons underlying this increase, we should
consider whether there are implications for innovation
and competition. On the one hand, some observers believe
that this patent explosion could injure competition by
making it more difficult for rival inventors to sell
competing products. According to Professor Carl Shapiro,
a 'patent thicket' has formed... Firms in certain
industries are said to fear that it is 'all too easy'
to infringe another patent accidentally and thereby
risk liability..."
C. Details tabulated
http://www.uspto.gov/web/offices/ac/ido/oeip/taf/apat.pdf
TAF Special Report, All Patents, All Types. January 1977
-- December 2001.
5. Sun and the XPointer patent
> "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?
The quoted statement from ZDNet "Sun backed that position up
when it relinquished..." seems to be consistent with the FTC/DOJ
testimony of Daniel Weitzner [*]: "Though there was not a clear
model for Royalty-Free licensing in W3C, Sun worked to develop
a license that would enable Royalty-Free implementation of
this standard..."
* http://xml.coverpages.org/WeitznerTestimony20020418.html#SunPatent
The only statement known to me is from April 24, 2001:
http://xml.coverpages.org/sunIPR-XPointer.html
http://lists.xml.org/archives/xml-dev/200104/msg00775.html
I find it puzzling that you judge the W3C case for RF
lacking persuasive force, yet you imply that the terms which
*have* satisfied W3C (Weitzner) as adequate to the W3C's
developing RF doctrine are also inadequate insurance for you
-- because they lack fullest legal force.
A stronger measure would be to have this kind of IP contributed
to a patent pool which keeps the patented technology out of reach
from patent parasites, yet leaves it totally unencumbered as to
a required license transaction, and perpetually protected in
public domain. Some things need to happen in stages.
I find the public statement from Sun's Manager of XML Industry
Initiatives (Simon Nicholson), deeply encouraging, even if it
is weaker than a published company statement posted to the
Sun website. Simon stated: "Anyone should be able to use the
specifications that define the Internet infrastructure without
charge. We believe the best route to ensuring this is that
such specs be licensed under royalty free terms." Those who
favor RF terms in the W3C context may hope that this statement
from Sun's Simon Nicholson is quoted accurately and that
the declaration of 'belief' represents an abiding public
commitment from Sun Microsystems.
6. RAND as discriminatory
>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.
One of the goals in the paper is to remind that the RAND
acronym term "non-discriminatory" constitutes a lie,
cheat, and deceit on massive scale. Probably not intentional;
don't know, don't care. Many people have noted the irony
and infelicity in this locution. RAND discriminates against
some of the highest values of society (highest in my personal
scale, anyway). Others have written at greater length, and more
eloquently, but I wrote:
"... the notion that RAND ("reasonable and
non-discriminatory") terms and conditions protect the
public needs to be debunked. RAND offers no protection
against oppressive taxation, and it may be judged
highly discriminatory. The English word "reasonable"
sounds positive, and "non-discriminatory" rings with
political correctness.... RAND is flawed at many
levels... royalty fee "reasonable" for one wealthy US
software company may not be "reasonable" for a
software development project in a third-world country,
or for public hospitals, museums, and elementary schools.
Furthermore, what may be judged *reasonable* as a DRM
fee considered in isolation may become quite
*unreasonable* when taken in aggregate (added to 25
other "reasonable" fees), or when embedded into the
very foundation of a core (and still developing)
Internet architecture. As Richard Stallman and
W3C's readers have argued, RAND *is* discriminatory:
it discriminates against open source software
(and core principles of open source philosophy);
it discriminates against anyone not economically
empowered to pay the same royalty fee as can be paid
by a wealthy, powerful software company
(Microsoft, IBM) or media conglomerate (AOL Time Warner).
7. Patent thickets and patent reform
> "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.
According to a report from Michael Champion [*], the W3C
Patent Policy Working Group "concluded that the W3C cannot
meaningfully affect the Patent and Trademark Office, the
Congress, or the courts. The goal is to develop an
effective strategy for working in what is clearly
a compromised legal environment..."
* http://www.xml.com/pub/a/2001/12/19/patents.html
Working around the law is one solution; defying it is
another. Trying to reform it is yet another. Defending
it (without critique) as the ruling authority is another.
The mantra "The law is the law... obey the law" is
an attitude directly challenged by Lessig. One viewpoint
is that the law can come under pressure for effective
change through outright massive defiance of it when the
Beltway lobbyists protecting powerful financial empires
become too strong. We saw this happen in the 80s and
90s when copyright law, hopelessly outdated and irrelevant
to the world of electronic publishing, was intentionally
ignored. Large publishing firms that controlled scientific,
technical and academic publishing saw their control
threatened by authors, increasingly empowered to "publish"
on university and research-center computers. They tried
to put stronger teeth into writing contracts, demanding
exclusive publication rights, all the while charging
the university library $900-$1200 annual subscription for
the journal subsidized by the taxpayer (direct government
grants for research, government-paid university faculty
salaries). My version of the story, as I followed this
closely for a time, is that the academic community simply
came to a determination to defy the "copyright" laws which
allowed publishers their control. They had to be careful
to avoid antitrust (collusive action to publicly boycott
certain European publishers was a problem, for example),
but copyright reform, mired for years on end, was simply
too slow. Publishers simply had to watch, as authors
"just said no" to whole contract clauses, or signed, and
then posted their publications on file servers in direct
violation of the publishers' boilerplate contracts.
This story is still being played out -- with copyright
law still lagging years behind common practice, while
media conglomerates try to legislate ever more "law"
to help them control as "intellectual property" many
expressions of culture that should be owned by nobody.
IMO.
I am not advocating violation of the law by open source
players. I am saying that it's wrong to place law
at the center of the conversation. Man was not made for
the Sabbath. Users will sneer at the shrinkwrap fine
print and ignore it if they collectively "know" it's wrong;
doesn't matter what the law says. So indeed we can choose:
SSSCA, CBDTPA, prosecution of Dmitry Sklyarov. Too bad
the world has so few examples of individuals like Ghandi.
8. Reciprocal RF as one solution
> 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, paranoia.
To make the charge of "paranoia" stick, I think you have
to be willing to apply it to all the member companies in
W3C, for example, who have principled positions against
RAND based upon lack of (upfront) clarity on the terms of
"reasonableness". I would just call it good business practice.
So someone says: "Grant me these broad discretionary powers
over you; I can't reveal just now how they would be used in
detail, or the precise financial terms, but you can trust me to
be fair and reasonable." I'm not sure what the paranoid
response to this is; the appropriate response from a wise person
is simply "Go to hell."
I don't know enough about MPEG to say much, but from
a distance, it looks like the MPEG-4 power brokers
* have been accused of exploiting an unfair monopoly
* have been forced to revise proposed license fees
downward (opening position is "as much as the market
can possibly bear...")
* are faced with (it's said) "a game of high-tech
brinkmanship" with open source companies threatening
alternatives
Apparently, a lot of (non-paranoid) people are concerned
about the proposed MPEG-4 use taxes. ISMA's Tom Jacobs
calls the MPEG-LA (MPEG-4) license terms a "revenue grab" that
"will double streaming costs for most major content
creators -- he predicts that Apple, Sun and the other
members of ISMA will move on to cheaper pastures..."
http://www.salon.com/tech/feature/2002/03/06/mpeg/index1.html
I can't evaluate this in detail, but I am concerned about
the worldwide community of users that could be negatively
impacted. In the US, it's probably not a big deal if the
legally-encumbered RAND royalty-exacting standards coming
out of ISO/IEC JTC 1/SC 29 result in $7.34 monthly increase
on the broadband bill (MPEG-4, MPEG-21 DRM, etc. etc). I
am concerned about people who can barely afford to be
connected to the Internet in any manner, and who cannot
afford the "non-discriminatory" increase of USD $7.34/month
use taxes. Your scenario may vary. There are other
business models. But if the 18 companies set the tariff,
somebody pays, and everybody pays; some are denied access.
So when I read stories from ISMA, for example, like
the following,
"Internet Streaming Media Alliance Expresses Support
for MPEG-4 AAC Licensing Terms. Industry Applauds Absence
of Use Fees and Low Royalties for PC-based Decoding"
http://ism-alliance.tv/html/resources/pr.shtml?PR1005.txt
I don't find it difficult to add my applause, from a
distance. The text says, in part:
"The Internet Streaming Media Alliance (ISMA) today
announced its enthusiastic support for the MPEG-4
Advanced Audio Coding (AAC) licensing models
recently introduced by Dolby Laboratories.
In contrast to the proposed terms for the MPEG-4
Visual license, the approach of the MPEG-4 AAC
licensors does not involve royalties on the
distribution of audio compressed in the MPEG-4
AAC format. 'The MPEG-4 AAC co-licensors listened
to licensees and understand the complexities of
the marketplace -- it is impractical to expect
content owners or distributors to adopt a format
which involves use fees, dramatically increasing
their costs while also burdening them with
tracking usage,' said Tom Jacobs, president
of ISMA. 'ISMA members have been very concerned
that the proposed use fees for MPEG-4 video
patent licensing will inhibit the uptake of
MPEG-4 among its most important constituents
-- the companies that create and/or distribute
multimedia content. ISMA strongly supports
the MPEG-4 AAC business model. It encourages
the use of this important new technology by
making it attractive to the content industry,
which will in turn promote the sale of
products and the success of the MPEG-4 standard'."
I don't know the details. Eliminating use fees
in connection with an ISO Streaming Media
standard sounds like a good idea.
Summary:
Other points will have to remain unanswered. I'll try
to keep an open mind as I read more from advocates of
RAND-for-the-Internet. For the interim, I respect the
opinions of those who hold out for this position, and
maintain that RF is better: I think, however much based
upon propositions that are undecidable, that some of our
fundamental assumptions about "intellectual property
ownership" are flawed, and that the RAND model is not
best for Web technology standards.
------------------------------------------------------------
Previous relevant email texts:
----------------------------------------------------------------
>Date: Fri, 10 May 2002 13:17:56 -0500
>From: "Bullard, Claude L (Len)" <clbullar@ingr.com>
>To: 'Robin Cover' <robin@isogen.com>
>Cc: 'Jonathan Robie' <jonathan.robie@datadirect-technologies.com>,
> xml-dev@lists.xml.org
>Subject: RE: [xml-dev] Patent non-proliferation and disarmament
>
>The document is yetAnotherPhilosophyAsEconomicPolicy.
>Too many of the people cited in your paper are
>just philosophizing on undecidable propositions
>based on ludicrous interpretations of recent events.
>
>The policy is the direction the W3C has chosen.
>Some policy is better than no policy given the CSS
>patent and XPointer patents that are absurd on the
>face of them to anyone who was in the industry prior
>to circa 1995. What happened to that prior art?
>In the case of XPointer, Sun ignored it. In the
>case of CSS, MS ignored it. The patent office
>had nothing to do with this. It was the trend
>of the web pioneers to take far too much credit
>for the work that set that example. Cry about
>it, plead for open source, do all these things,
>but a level playing field is not what this is
>about. It is about property rights, the fundamental
>right of sustainable economies, the right to exchange
>value for value under agreed on terms.
>
>What about reasonable patents?
>
>Where patents are reasonable and the technology
>is useful, those who want to share it via normal
>business channels simply need to avoid the W3C
>and the open source community. I doubt seriously
>that will matter for a reasonable patent.
>By degrees, valuable technologies will be standardized
>outside the w3c which will itself, become by
>degrees, irrelevant to those areas of technology.
>
>Without property rights, no other rights matter.
>
>
>I tend to agree with the position that to the greatest
>extent possible, open standards should be royaltry free.
>I believe that this position will more quickly get the
>technology into the market in much the same way that
>offering free software (eg, browsers) does and for the
>same reasons. However, I personally consider this a
>choice based on a right understanding of the interdependencies of
>wealth and duty, the multiplication of choice by the
>right selection of choice. This is my position. What
>I disagree with are the positions I enumerated in my
>response to Robin.
>
>I agree that the well-funded can and perhaps should,
>use that wealth for the greater good. I cannot ask
>another to do as I would do were I able and were I
>so enlightened. That is and must always be the
>individual choice over the disposition of their
>property rights. In my estimation, this is the
>basis of the success of our civilization, but
>that is also an undecidable assertion.
>
>
>
>To: 'Robin Cover' <robin@isogen.com>
>Subject: RE: [xml-dev] Patent non-proliferation and disarmament
>From: "Bullard, Claude L (Len)" <clbullar@ingr.com>
>Date: Fri, 10 May 2002 16:20:23 -0500
>Cc: xml-dev@lists.xml.org
>
>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
>systems.)
>
>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,
>paranoia.
>
>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
>
>This paranoia.
>
>o Patents and standards are incompatible
>
>This is demonstrably false.
>
>o Universal access and RAND are incompatible
>
>This is demonstrably false.
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