Bruce Perens's Journal: Please Support the W3C Patent Policy Draft

To All Members of the Free Software and Open Source Community,

For the past two years, I've been working on the W3C patent policy on
your behalf, to make it safe for Free Software to implement W3C standards.
Now, I'm worried that we could lose that fight, not because of the patent
holders, but because of our own community.

There's a long discussion below. I'm asking you to do something once you
read that discussion: Please write to
and tell them something like this (please elaborate - everyone discounts
rubber-stamp comments):

        To: [e-mail]
        Subject: Approve of draft policy - disapprove of software patenting.

        I request that W3C approve the draft patent policy, because it's a
        compromise that protects the right of Open Source / Free Software
        programmers to implement W3C standards.

And you may want to add this:

        I object to software patents, and support efforts to eliminate them
        at the legislative level.

Now, to the discussion.

Three representatives of the Free Software / Open Source community:
myself, Larry Rosen of the Open Source Initiative, and Eben Moglen of
the Free Software Foundation, worked on the W3C patent policy for two
years. We spent between 1/8 and 1/4 of our time on the project for all
of that time, participating in many face-to-face meetings and conference
calls. Across the table were some companies that, I feel, wanted to
"farm" their own patents in W3C standards and would have erected
lucrative "toll-booths" to collect royalties from every implementor of
web standards. If they had their way, we would have been locked
out.

We got you the best deal we could get. It's not everything we want,
and it can't be. The draft policy is at
http://www.w3.org/TR/2002/WD-patent-policy-20021114/ .

The proposed W3C patent policy grants a royalty-free right for everyone
to practice patents that are embedded in the standard by W3C members who
own those patents. It prevents "patent farming", the biggest problem
that faced us. The problem is that the patent grant is limited - it only
applies to code that actually implements the standard. This is called a
"field-of-use" limitation. The problem this creates for the Free Software
community is that other uses of the same patent in our code, for anything
but implementing the standard, could be covered by royalties.

I object to software patents entirely, and many of you do as well. Why,
then, did I (on your behalf) approve of a policy containing that
limitation, and why am I asking you to support it?

The answer is simple. Patent holders won't continue their membership
in W3C if that membership forces them to give up their patent rights
for non-standards-related applications. They will instead move their
standards-making activities to other organizations that allow them to
charge patent royalties on the standards. And we will have lost.

It comes down to what we can compel people to do, and what they won't
stand for. The patent holders want the W3C brand on their standards,
and will give up something for that. If we ask them to give up more,
they'll do without the W3C brand, and we have no way to control what
standards organization they move to. If we wish to fight software patents
outside of standards, I think our only choice is to do so at the legislative
level.

The field-of-use limitation presents special problems regarding the GPL,
because the GPL disallows a field-of-use-limited patent license. There is a
work-around for this. The code that makes use of the patented principle
must be under the MIT license, which allows a scope-limited patent
license. That may be linked into GPL code and distributed. I'm less than
comfortable with this, but my discomfort arises from the basic injustice
of software patents. A work-around is the best we can do in this case.

FSF, by its tenets, was bound to protest the field-of-use-limitation.
I respect that protest, as it is rooted an a belief that I share - that
software patents are fundamentally wrong. However, if the Free Software /
Open Source community comes out against the W3C patent policy, and the
patent holders who want unlimited rights to charge royalties come out
against it, just who will speak for it? The result will be that W3C
will fail to give final approval to the policy, and we will not even have
the limited protection from software patents that we've won. Thus, I
have to ask you _not_ to do what FSF asks this time. Of course, this
disagreement does not diminish my respect of FSF, and I will continue
to work with them as I have on many projects for years.

Thus, I'd like you to write that email now. It's very important that W3C
see support for the draft policy, or we'll be back to the old, bad policy
again. Thanks!

As always, please feel free to call me to discuss this at 510-526-1165
(California time) or write me at [e-mail] .

        Thanks

        Bruce Perens

Clickable links

[alfaiomega]

Patent Policy Working Group
Royalty-Free Patent Policy

W3C Working Draft 14 November 2002 [w3.org]

• This version [w3.org]
• Latest version [w3.org]
• Previous version [w3.org]

OK, now I'm starting to read, but, as in my opinion software patents issue is the biggest threat for free software (which I use exclusively, for personal and professional purposes) we'll have to face before the "trusted" computing problems, which are only beginning to arise, I am sure that I'll send a letter approving the draft policy, as soon as I'll finish reading it. I'm not very comfortable with the field-of-use limitation, however I don't think there is any better way right now. I basically share most of your opinions from this journal entry.

Thanks for doing a great work for all of us.

(By the way, I think it should appear on Slashdot front page, instead of you journal, as it touches very important issues, which everyone here should get familiar with.)

Shouldn't we go for all-or-nothing?

[evilviper]

I am a little split on this. Sure, getting more released under royalty-free terms are good, but NOT allowing royalty-free-only licensing would encourage even less restrictive terms. If you allow these terms, then groups that would have been willing to follow the current terms might be encouraged to go with the more restrictive option.

I'm not sure that letting everyone go into it half-assed is a good thing, when you could instead --perhaps-- just allow few groups to leave, instead of compromising W3C's terms to accomodate them.

How great a loss would it really be if those who are not willing to follow the W3C's current terms were to go to another organization?

Re:Shouldn't we go for all-or-nothing?

[alfaiomega]

I am a little split on this. Sure, getting more released under royalty-free terms are good, but NOT allowing royalty-free-only licensing would encourage even less restrictive terms. If you allow these terms, then groups that would have been willing to follow the current terms might be encouraged to go with the more restrictive option.

Actually it's a very complicated problem. Of course it's much better to have royalty-free right for everyone to implement any W3C standard, than to not have this right guaranteed, that's without any question. The only problem, a very subtle problem, is the field-of-use limitation, which makes it impossible to use GPL.

I'm worried that this could get used by certain corporations which are basically cool with any non-copyleft free software license (like the X11/MIT/BSD-style licenses) but are strongly against copyleft licenses, especially the GPL. Of course I don't doubt the intentions and competence of Bruce Perens, actually his opinion (i.e. that it's the best deal we could get, even if it is not and cannot be perfect) is one of the strongest reasons for me to approve this draft policy.

I'm not sure that letting everyone go into it half-assed is a good thing, when you could instead --perhaps-- just allow few groups to leave, instead of compromising W3C's terms to accomodate them. How great a loss would it really be if those who are not willing to follow the W3C's current terms were to go to another organization?

It all depends on how many and how strong groups that would be. I'm sure there are groups which will stick with W3C despite somewhere else they'd have more options for patent exploitation (because it's W3C), but they'd go somewhere else as soon as they have no option for any patent exploitation at all, ever (as their patents related to W3C standards would be completely useless). The only question is how many of them and who would really do that. And this, unfortunately, we can't know before it's too late...

Check out the recent Slashdot discussion, Act Now To Sidestep A W3C Patent Pitfall [slashdot.org], for good arguments of both sides.