Date: Tue, 9 Oct 2001 14:20:13 -0400
From: Eric S. Raymond Subject: OSI letter of comment on W3C's proposed RAND policy
The Open Source Initiative has considered the World Wide Web
Consortium’s Patent Policy Framework working draft at
http://www.w3.org/TR/2001/WD-patent-policy-20010816/
and the W3C’s Response to Public Comments at
http://www.w3.org/2001/10/patent-response
The recent public disclosure of these plans to endorse patented
Web standards has ignited a major public controversy. The Open
Source Initiative’s charter requires us to speak out for the
interests of open- source developers, and this statement is
intended to be our contribution to the debate.
Recommendation for Change in the RAND
Proposal
We believe that there is merit to many portions of this proposal.
In particular, we unhesitatingly endorse the patent disclosure
requirements in section 7. One does not need to settle the general
question of software patents to affirm that all developers (and not
merely open-source developers) are entitled to protection from
unethical “submarine patents”.
We further endorse in a general sense the existence of
well-defined tests for determining whether a proposed W3C standard
meets the W3C’s transparency requirements (sections 4 and 5).
Clarity on these questions will better serve web developers and the
public, and the W3C is to be applauded for attempting to document
and regularize its procedures.
However, we must reject the specifics of the proposal for a RAND
(“Reasonable and Non-Discriminatory) Licensing mode. Clauses 1, 2,
3, and 6 are unexceptionable; clause 4 is fair; but clause 5 “may
be conditioned on payment of reasonable, non-discriminatory
royalties or fees” is unacceptable as written.
While opinions may differ on whether the so-called “RAND” policy
with clause 5 is “reasonable”, there can be no question but that it
is discriminatory. Clause 5 would discriminate against open-source
developers, who operate in small volunteer project groups and have
neither the wherewithal to pay license fees nor the shelter of a
fictive legal entity with which a license might be negotiated.
OSI suggests that the proposed clause 5 can be rescued by adding
a suitable interpretation of “non-discriminatory”. The language in
the State of Maryland UCITA exempting open-source projects from
warranty requirements provides a suitable model:
The payment of royalties under a RAND license shall be
waived for any licensor of a computer program that is provided
under a license that does not impose a license fee for the right to
the source code, to make copies, to modify, and to distribute the
computer program.
This interpretation of “non-discriminatory” would leave
patent-holders the option of continuing to collect license fees
from implementors with plans to charge for the secrecy of their
software.
Principles and the Larger Context
The above is a narrow technical prescription, but there are larger
issues here. The OSI would be derelict in its duty if we failed to
address those. We stand with those who see the RAND proposal as an
invasive and corrupting attempt to hijack the standards process, to
tilt the Web’s relatively level playing field in favor of players
with legions of lawyers and lots of money. That other standards
organizations who should have known better (such as the IETF) have
let this particular camel’s nose under the tent is no excuse for
the W3C to repeat that error.
RAND discriminates not merely against open-source developers,
but for entrenched monopolies and against the consumer and small
busineses — who under this proposal would be systematically
deprived of open-source alternatives and have fewer choices (all of
them expensive and proprietary).
RAND would also tend to stifle innovation. The history of the
Web and the Internet amply demonstrates that in today’s world
innovation does not come to us from the entrenched giants of
technology and media — indeed, they experience genuine innovation
as an unwelcome disruption, upsetting their strategic plans and
obsolescing their cash cows. RAND would permit — nay, it would
invite — abuse of supposedly “non-discriminatory” license terms to
suppress innovation and lock in customers.
Web innovation springs from precisely those independents and
open-source developers whom RAND would systematically freeze out of
the process. If the W3C enacts Clause 5 as written, it will be an
act of betrayal against both the Web’s history and its future. The
W3C will deserve the schism and developer revolt that would follow
— and it will deserve the fate to which this bad decision would
inexorably doom it.
In the past, “standards” that are actually manacles could be
foisted on a relatively powerless developer and user community —
because both computing technology and the software development that
went with it were expensive and centralized, requiring financial
mass and corporate management structures. In that world, there was
no alternative but fetter, and customers could only try to choose
the least weighty.
The OSI exists today because those days are passing. The
combination of the Internet, personal-computer technology, and
distributed open-source development has empowered millions of users
and developers, and indeed proven that it can produce dramatically
better results than the old system. Software developers and users
are increasively refusing to accept the kind of suppressive
shenanigans that corporate-dominated standards bodies have used in
the past as market-control tactics.
The time is ripe for confrontation. Thousands of web developers
have already made their voices heard against RAND. The largest IT
consultancy in the world has just recommended that IT customers
drop proprietary webservers in favor of the open-source Apache. The
increase in adoption of open-source operating systems on web
servers continues exploding, propelled both by pressure on capital
spending and the increasingly onerous license terms attached to
their closed-source and technically inferior competitors.
If the W3C persists in its present course, it risks having its
tea dumped in Boston harbor as the first move in a revolution that
will vest effective control of Web standards in open-source groups
like the Apache Software Foundation and entirely out of the ambit
of the W3C and its sponsors. OSI would do what we can help lead
that revolt.
Open Standards Require Open Source
But W3C does not have to be on the losing side. We urge the W3C to
take this opportunity not only to affirm its royalty-free-only
license policy, but to institute a requirement that no proposal may
become a W3C standard unless it is backed by an open-source
reference implementation on an open-source platform, with patent
grants sufficient to ensure that the reference implementation
remains unencumbered.
That requirement would truly create a level playing field for
all parties — users, developers, content providers, and all of the
Web’s millions of stakeholders. It would also serve as a reliable
reality check on the tendency of paper standards to effloresce into
unimplementable monstrosities.
Your organization is supposed to be committed to a World Wide
Web that is open to all. The OSI urges W3C to remember this, and to
center its standards policy around one simple truth: open standards
require open source.
Issued by and for the Board of Directors of OSI
by Eric S. Raymond, President
9 October 2001