By 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
- 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/. - Spread the word about this issue as soon as possible.
- 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. - 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.