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Act Now To Sidestep A W3C Patent Pitfall 210

Posted by timothy
from the this-is-not-the-santa-clause dept.
Jay Sulzberger, Corresponding Secretary of LXNY (New York's Free Computing Organization) writes with a report on the ongoing fight over patents in Web standards. "In the past two years the Free Software Movement has moved W3C, the Official Standards Body of the World Wide Web, from a proposed patent policy, which would have, in future, denied us our present right to full and free use of free software to build the Web, to a policy intended to guarantee that free software may be used without fear of patent encumbrances. This move is an important victory for us. But the present proposed policy on patents has a bug that is worth fixing. The mechanism of the bug is non-obvious, except to people who have studied the GPL and certain other free software licenses. It is a bug that, if the proposal is made an official standard, would allow for patent encumbrances to be laid on certain free software in circumstances where today no encumbrance is allowed." Read the rest of Jay's commentary (below) on this devil in the details.

Here is what the Free Software Foundation says on its front page about this bug:

"The W3C 'Royalty-Free' patent policy proposal does not protect the rights of the Free Software community to full participation in the implementation and extension of web standards. Please read more on this issue and send a comment to the W3C."

Part of the effort that moved the W3C to its present position was a furious outpouring of comments in opposition to the original proposal of the Englobulators:

The fix needed right now is a small fix. But the W3C must again be reminded with what jealous vigor we guard our right to build our Web the way we have built it down to this day, using free software. The bug appears in Item 3 of Section 3, titled 'W3C Royalty-Free (RF) Licensing Requirements,' of the present proposal.

This Item allows for a supposedly free grant to use a patent to be so restricted that a piece of Web infrastructure software might be encumbered if used for some non-Web use. Since the GPL does not allow such encumbrancing, GPL-ed Web software re-purposed for non-Web use could not be legally freely redistributed. Please read the Free Software Foundation's page on this bug.

Here is the official Last Call for Comments.

If you write a comment in your own words, for repair of the bug, it will help. I shall write in, and I shall argue against adoption of the buggy sub-section. I shall also suggest an extension of the deadline for comments.

This discussion has been archived. No new comments can be posted.

Act Now To Sidestep A W3C Patent Pitfall

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  • The FSF wants the W3C to force anyone wishing to use a patent as part of a web standard to give a royalty free license to everyone no matter what the use of the patented technology including non-web software. I don't see how non-web software is any of W3C's concern. Nor do I see how the FSF forcing this issue is going to make the web world better.

    If the FSF wants all software free, great! But, let's not waste everyone's time fighting in the wrong forums.
    • by DeLabarre (236800) on Monday December 30, 2002 @05:16PM (#4984260)
      No, what the FSF wants is for the W3C standard to be defined in a way that GPL'ed software can comply with. If complying with the W3C standard requires the use of any restricted software technology, then there might not be compliant GPL browsers and servers, and everyone loses.

      If the patent owners don't want to release their IP, then the patented technology shouldn't be part of the standard. Period.
    • by Fastolfe (1470) on Monday December 30, 2002 @05:19PM (#4984277)
      The issue is that some "web" technologies (e.g. HTML) can easily find themselves in other areas (e.g. HTML e-mail). With the licensing phrased the way it is now, a "web" standard can be made free and beautiful, get entrenched as a de facto standard, but then everyone wanting to extend that into other related technologies would suddenly have to pay out the nose for patent royalties, which neatly excludes most all free software. This is the situation we are trying to avoid.

      Wouldn't it suck to have to pay out royalties for technologies like SOAP because HTTP had patent encumberences that were only ignorable when dealing with the web?

      The Internet is not the Interweb, and though the W3C is a "web" pseudo-standards body, they need to realize that their recommendations tend to extend well beyond the web and need to plan accordingly. A standard that's deliberately crippled so as not to be extensible is generally a bad standard.
      • Um, I think that's wrong too.

        If I understand correctly, and I may not, it's worse than that. Imagine a new patented standard, STDML. The patent holders say, "You may use my patents, but only on the web."

        Now it is against the GPL to use that standard at all, since there is a restriction on the reuse of the code. No GPLed software would be able to use the standard in any form, on the web or otherwise.

        This isn't just a problem with philosophy. It's a very practical problem. Many Free Software folks are not of the RMS opinion that everything can and must be GPLed. We just want them to be able to play on the same field as proprietary and "Open Source" folks. This locks them out.
      • The other thing to remember is that "web standards" tend to be widespread, and get used in other things. Take HTTP, for example. Or HTML, or XHTML. Or URLs. Or Javascript. (See Mozilla) There's lots of places where "web standards" were found to be more universally useful than just browsers.

        And, completely independant of the GPL issues, this stands to block that, restricting the scope of patented standards to web browsers. This excludes any sort of automation, or even web servers!

    • I tend to agree. While it is my opinion that software patents should not be granted, and I think that may be TimBL's position too, it is not the W3C's mission to reform a flawed Intellectual Property policy.

      Also, W3C needs to be a bit careful, as it does run the risk of getting run over by the big patent-holders. Those have a lot of power in the market place. Probably, we should be happy with what we've achieved, W3C is currently pretty much the only big industry consortium that doesn't have a RAND policy. For off-web applications, it seems Linus' position of ignoring the patents is the only viable route.

      And, BTW, just to make sure people hear this: W3C is not a standards body. It is an industry consortium and has never claimed to be a standards body.

      BTW2, it has been posted before [slashdot.org] but has apparently now been made worthy of the front page.

    • by Chops (168851) on Monday December 30, 2002 @05:59PM (#4984557)
      It's important because, time and time again, this sort of pedantry has morphed over the years into an enormous deal. There was a pretty bitter battle a few years back over gzip; many people wanted to use LZW, a patent-encumbered compression technology, because it was good and easy, and it was in use all over the place. "The patent doesn't matter," they said, "For Christ's sake, they use LZW in GIFs." Others were extremely concerned about the legal implications this might have down the road; fortunately, the pedants won, and years later when Unisys started firing around lawsuits left and right, GNU/Linux companies did not find themselves on the receiving end of any of them. There are a few other examples, but in general it is now agreed that it is a Very Good Thing for free software to be compliant with the letter of patent law.

      Unfortunately, web software which uses patented techniques simply can't be free software; its code cannot be redistributed without restriction. I think the thing the FSF is most afraid of is that people will implement patented techniques in GPLed web software and Not Worry About It. That would be bad. One scenario I can imagine is this: A developer sues a GNU/Linux vendor for royalties on his patent-encumbered web software, because the GPL can't be applied to patent-encumbered software, and hence the vendor is redistributing it without a license. Technically, the developer is correct.

      It seems you don't care much whether free software is available; fair enough. I like having free software, though, and so the situation where (a) technology X is a widely-used standard (web or otherwise), and (b) it is illegal to write free software which implements technology X, seems as odious to me as it does to the FSF.
    • I don't see how non-web software is any of W3C's concern.

      Hmm what is the Web anyway? If I have a 127.0.0.1 loopback on my computer am I a network of 1? If I am using a web browser and my link goes down can I still use the "patented technology" while I am not connected to the Internet?

      Can I use the technology to do things using cell phones or PDA's which may not actually be connected to the Web sometimes or always?

      Considering how transparent most network access is, I don't see how to draw a line between Web and non-Web software since the same piece of software could easily be used in both situations.

      Reducto Ad Absurdum: Your k3wl browser with that neato (applet/script/program) running in it has to constantly check to make sure the Internet connection is up, and if the connection drops, it forces the (applet/script/program) to stop running for no other reason than it stopped being a "Web app"? OTOH, if it still is a "Web app" that can use this abstract thought patent, can I just hook my computer up to the Internet once then disconnect it forever and declare that all programs are "Web apps" and therefore ignore any Web-only restrictions on these abstract thought patents? How long does a "Web app" keep being protected after the connection drops?
    • Then it sounds bad. But think of it another way:

      Internet standards published by the W3C are meant for everybody in the world to adhere to and use; that's the point of having Internet standards. Now, what good are those standards if some people can't adhere to them because the standard requires the use of royalty-encumbered patented concepts? If you want everybody in the world to adopt your idea as a standard, you have to give them access to it...

  • by persist1 (111477) on Monday December 30, 2002 @05:08PM (#4984214) Homepage

    Also of note:

    Working Draft, W3C Patent Policy [w3.org]...

    Abstract:

    The W3C Royalty-Free Patent Policy governs the handling of patents in the process of producing Web standards. The goal of this policy is to assure that Recommendations produced under this policy can be implemented on a royalty-free basis.
  • by miltimj (605927) on Monday December 30, 2002 @05:16PM (#4984266)
    Ah yes, that thread has a lot of great points threaded throughout... such as:

    And those are taken from just the top 22 posts in the list...
  • Oy Slashdot! (Score:5, Interesting)

    by The Bungi (221687) <thebungi@gmail.com> on Monday December 30, 2002 @05:24PM (#4984311) Homepage
    This sudden interest in the W3C and open standards and unencumbered software and patent free and, etc. etc. is quite interesting.

    Considering you intentionally block the W3C validator [w3.org]

    I can't help but think that's about the stupidest thing /. has ever done (though I may be wrong). I mean, what's the point? Lame jokes about the crappy output of your Perl scripts got you down? How about fixing it instead??

    • Re:Oy Slashdot! (Score:5, Informative)

      by Bruce Perens (3872) <bruce@perens.com> on Monday December 30, 2002 @06:50PM (#4984904) Homepage Journal
      Also considering that the people who serve in the W3C patent policy working group are slashdot regulars, and Jay is not. Folks, Jay Sulzberger does not understand the issues and has no authority whatsoever to speak on this topic. The community representatives who worked on this policy for two darned years, cetainly Larry and myself and possibly even Eben, think we got the best deal we could possibly get. Sure, we had to make compromises, sometimes we have to. If we don't take this deal and force them to give up all rights to their patents, the patent holders will walk off of W3C and make standards in an organization that allows them to charge whatever they royalty they ask for use within the standard. We will have lost. Please write W3C and say you approve of the current policy draft.

      Bruce

      • First sentence should say "Jay is not in the working group." Also excuse the typos, I was typing this pretty quickly, attempting to do damage control as fast as I could.

        Bruce

      • Re:Oy Slashdot! (Score:3, Insightful)

        by HiThere (15173)
        Are you saying that it *is* compatible with the GPL?

        I'm not too concerned with whether or not it's the best deal we could get. I'm concerned with whether it's a good enough deal. If it isn't good enough, being the best we could get doesn't help. If it is good enough, then isn't that all we need, and anything better than that is just gravy.

        I do tend to be quite skeptical of the W3C. They have done many worthwhile things, but most of the representatives represent large corporations, and the structure of the committee means that anyone else is on the outside looking in. And some of their recent proposals ... calling them insensitive is being excessively polite. Appeared to be clear proof that the W3C wasn't even considering the rights or utility for anyone who wasn't a major corporation. Their idea of "fair" has appeared to be "fair to me and my employer, and sod you!"

        Still, in the past they have done much that was worthwhile, and it would be both expensive and a great bother to need to construct a parallel organization. But what's the case THIS time?
        • Re:Oy Slashdot! (Score:4, Informative)

          by Bruce Perens (3872) <bruce@perens.com> on Monday December 30, 2002 @07:49PM (#4985216) Homepage Journal
          There's a work-around. You put the patented principle in a MIT-licensed file, and link that to the rest.

          Regarding W3C, if you think they are insensitive, try IETF's attitude on intellectual property. It mostly comes from these working groups consisting of employees of too many big companies. They are all cross-licensed with another, and don't give a hoot if their standards can't be implemented by any merely medium-sized enterprise.

          But we fixed that at W3C. We got a compromise. The community isn't used to compromise.

          Bruce

          • If the companies are so big-headed and self-centered that they'd walk out on W3C and set up their own "standard", let them. They won't find it all that easy, in fact there's a good chance that they'll get nowhere and just be marginalized.

            Compromise is sensible and reasonable when creating technical specifications, but to knowingly open the door to an entire class of future patent claims is not, and to acceed to their "we'll leave" blackmail is entirely unacceptable.

            Don't be pushed down that road, Bruce.
            • Well, there are about 100 existing standards organizations they could turn to, and many of them will let them do exactly what I'm talking about, today. One of those organizations is IETF which has a policy that's a good deal closer to "anything goes" than the W3C draft. And if you want vendor-dominated-entirely, there's always WS-I.

              So, in summary, I think the problem's worse than you realize. And I have spent a long time working on it.

              Thanks

              Bruce

          • Regarding W3C, if you think they are insensitive, try IETF's attitude on intellectual property.

            IETF is obviously next in line for the RF treatment. All we need is a clear cut issue, that is, we need many eyeballs watching for a patent-encumbered RFC to make it most of the way through the pipeline. I wonder how often this happens? Not often I suppose, but the next time it does, things should get interesting.
      • Considering this, I hope that a Slashdot editor pulls the story or replaces the text with something explaining what happened. I work for a respected online news site and know all about journalistic integrity. Anybody can take a stand and not pull a story, but a real journalist knows when they've been burned and will swallow their pride and pull their story when they have to.

        Editors, if the rest of the Slashdot crowd gets behind me, please replace this story with an explanation of what happened. Comments should be left intact.
  • by vadim_t (324782) on Monday December 30, 2002 @05:25PM (#4984326) Homepage
    So I'll paste a bit from the fsf site:

    Here's a detailed step-by-step example that shows how this problem could play out:

    Programmer P downloads the Konqueror web browser, receiving it under terms of GPL.

    P learns of a new web standard that requires exercising a technique for parsing URLs that is patented by Corporation C. C has licensed the patent under an RF, non-exclusive license, but with a "field of use" restriction that says the license can be used to "implement the standard". The standard, as it turns out, covers only what browsers must do with URLs, and says nothing about the server side or clients that aren't user browsers.

    P implements this technique in Konqueror, and seeks to redistribute the modified version on his website so that other users can benefit from Konqueror now complying with the standard. If he does, he is bound by the GPL under copyright law, because he is redistributing a modified version.

    However, he knows full well of a condition on that code that contradicts the GPL (violating Section 7) -- namely, he knows that C's patent license prohibits folks from taking his URL parsing code and putting it into, say, a search engine. Therefore, under GPL Section 7, he is prohibited from redistribution.

    You might think that he can simply assign his copyright to the existing copyright holder of Konqueror let distribution happen from that source. They could distribute under GPL, but they would be granting a self-contradicting license. Nothing (to my knowledge, but IANAL) prohibits someone from distributing copyrighted works under licenses that make no sense and are self-contradictory. However, it is certainly true that those who receive distribution of the works are stuck and can't undertake further distribution or modification themselves.

    The way I understand it is that it can create a weird situation. Suppose I write code to parse Yahoo pages to extract information from them. Suppose that Yahoo uses some technology licensed in this way on their site. Now they can stop me because it's not a web browser.
    • Not quite contradictory. If you write code that depends on a patent license that's only sometimes available, and then you license your code under the GPL, you've granted me the right to redistribute it iff there are no encumberances. Straight out of the tarball, your source is encumbered (and can't be redistributed), but if I remove the patented code I can redistribute whatever remains.

      It's a little bizzare that even if there's a large community who could use the software without restriction (if the patent didn't apply in some countries, for instance) I can't redistribute even just to them if use anywhere by anyone is restricted. I suppose there are a few loopholes that closes, though.

  • It has nothing to do with the GPL. According to the current W3C proposal a RF patent license may restrict the field of use. So it could say that no royalty fee is needed if the standard is used in one specific way, but as soon as you do anything different you need to pay royalties anyway (the example given is implementing such a standard for the Konqueror browser for use on the Web and then someone changes konqueror so that it also works on the normal file system (or anything you can make a IOSlave for, something konqueror is really good at btw). But if you are not free to use the software for any use it isn't free (or open) at all!

    For example the Open Source Definiton says:

    6. No Discrimination Against Fields of Endeavor

    The license must not restrict anyone from making use of the program in a specific field of endeavor. For example, it may not restrict the program from being used in a business, or from being used for genetic research.

    Rationale: The major intention of this clause is to prohibit license traps that prevent open source from being used commercially. We want commercial users to join our community, not feel excluded from it.

    • The OSD would apply to patents that the licensor owns. I reject the notion that some third party can make your software non-OSD-compliant by filing for a patent. If we let that happen, there'd be no Open Source software at all.

      Bruce

      • The OSD would apply to patents that the licensor owns. I reject the notion that some third party can make your software non-OSD-compliant by filing for a patent. If we let that happen, there'd be no Open Source software at all.

        If you're trying to establish which software provides certain freedoms then whether it's the author or someone else who has restricted those freedoms is irrelevant. What's the point of being able to identify something as being "open source software" if potentially none of the freedoms that are supposedly the characteristics of open source software are in fact present?

        I reject the notion that some third party can make your software non-OSD-compliant by filing for a patent. If we let that happen, there'd be no Open Source software at all.

        I don't care whether or not it's "OSD-compliant" I care whether I have the freedoms that that implies.

        You seem to be trying to apply the definition in such a way as to ignore whether it achieves anything (and yes I know who wrote the definition).
        • Well, basically you are saying that software patents suck, and that in the context of software patents, free software is in deep trouble. Of course I agree.

          Now, let's get to the matter of whether a license is OSD-compliant or not. In Open Source licensing, a copyright holder conveys rights to others. The OSD specifies what rights that copyright holder must convey for their license to be considered Open Source. The copyright holder doesn't have any control regarding the patent rights of third parties. Thus, I don't see any point in requiring the copyright holder to first obtain a non-scope-limited license, applying to everyone in the world, to every patent that the software might infringe upon. I dare you to even find out what patents those would be for any non-trivial program. Patent searches are never provably exhaustive. Thus, I could contend, following your rationale, that no software is Open Source, because all non-trivial software submitted as Open Source is potentially infringing of an issued patent. So, my contention is that the OSD would indeed not achieve anything if your rationale was followed.

          Now, there is a potential pernicious case in which the copyright holder has a license that the community doesn't, and thus can make use of community-submitted code that others can not. If the copyright holder uses that license to their advantage, by working in collusion with the patent holder to deny commercial use of the code to others, I would contend that the copyright holder does have at least partial control and that the software in question might well not be considered Open Source. I don't yet know what to do about this.

          Thanks

          Bruce

  • case for change (Score:3, Insightful)

    by Yi Ding (635572) <yi@@@studentindebt...com> on Monday December 30, 2002 @05:34PM (#4984389)

    The point he is trying to make, in my case, is that companies may, under the current policy, use the said clause to specifically sabotage a GPLed piece of software that is trying to implement a standard.

    An example of this would be if a commercial corporation (call it company X) comes up with a new piece of technology (call it WWW++ for here), which instantly becomes a hit. So, there is a big push for WWW++ to become a web standard, and company X agrees that they have the write to us WWW++, but only in terms of web development. However, since this is incompatible with the GPL, what this would mean is that anything trying to implement WWW++ cannot be licensed under the GPL. Therefore, singlehandedly by making a popular web standard, a company can say that this web standard cannot be used under certain licenses. We all know companies which would like to do this.

    What is being proposed instead, would take away that clause. It would not harm commercial implementations of the standard at all. In fact, commercial implementations would even benifit from the removal of the clause because it would give them more freedom of action. What the removal of the clause would do is ultimately give developers more freedom to work with the next generation web standards, to foster the kind of innovativeness on the part of the developers without having to constantly looking for patent violations, and to continue the tradition of the free web as much as possible.

    • No, they may not stop any GPL software this way. If you are worried about a patent in a piece of GPL software, put that subroutine under the MIT license, which does not have the patent language of the GPL. Eben Moglen, the attorney for FSF, was the one to suggest this.

      If we don't let the patent holders charge for things unrelated to the standard, they will just walk off of W3C and we will have lost, because they will be making their standards in an organization that lets them do whatever they want as far as royalties are concerned.

      Bruce

    • Re:case for change (Score:3, Interesting)

      by Nathaniel (2984)
      "The point he is trying to make, in my case, is that companies may, under the current policy, use the said clause to specifically sabotage a GPLed piece of software that is trying to implement a standard."

      I understand your concern, and agree with it, but that isn't the battle being fought here.

      Here's the abstract for the "Royalty-Free Patent Policy" (note the name change from simply "Patent Policy"):

      "Abstract:
      The W3C Royalty-Free Patent Policy governs the handling of patents in the process of producing Web standards. The goal of this policy is to assure that Recommendations produced under this policy can be implemented on a royalty-free basis.
      "

      The policy manages what it sets out to do. Specifically allowing GPL or allowing the use of a patented technique outside in something other than a web application (both worth striving for) are not within the scope of this document.

      There is certainly room to urge the W3C Patent Policy Working Group to draft a policy that says web standards should not be contrained by potentially restrictive patents. Such a draft would effectively obsolete this policy, but in the meantime, this policy is useful for what it does.

      Consider this a mark along the way toward a more difficult goal. This represents progress. We can agree it is not enough progress, that there is still another important mark to reach, but it is still worth having.

  • by Zeinfeld (263942) on Monday December 30, 2002 @05:34PM (#4984392) Homepage
    Contrary to what the FSF is saying the issue is neither trivial nor a bug.

    This Item allows for a supposedly free grant to use a patent to be so restricted that a piece of Web infrastructure software might be encumbered if used for some non-Web use.

    The issue for me as an architect (I have written IETF, W3C and OASIS standards) is that I don't necessarily own all the IP that I need to address a problem. If I need to get an IP owner to donate their property for the common good my job is easiest if I have to ask for as little as is necessary for the particular purpose.

    Equally when I hold the IP I see little point in giving away more than I need to for the purpose of the Web specification even though my company does not regard patent licensing as a revenue stream. The point is that I might need some IP held by a party that deals in the non-Internet world. I will have an easier time negotiating a license for Internet use if I have some bargaining chips.

    The FSF reading on the situation is 100% about their ideology and has nothing to do with real needs as far as I am concerned. Open Source software is not imune to the patent system. If you modify any open source software sufficiently you will run into a patent infringement.

    If you apply the FSF "logic" you would have to stop distributing gzip because someone could modify it so that it infringed the Unisys LZ patents.

    The W3C does not have a monopoly on standards making and in fact is already seeing a lot of the standards work migrating from to OASIS. Dealing with the cumbersome W3C process and formatting conventions is bad enough without additional IP roadblocks being errected.

    At the end of the day the IP policy is utterly irrelevant since nobody is going to use the specification unless the IP terms are acceptable and they are going to determine what is acceptable, not Tim and certainly not RMS. To date that has generally meant 'free as in beer' however there are many applications where that is simply not achievable, if you want to do voice browsing you will run into IP issues and your choice will be do something encumbered or don't do it at all.

    Don't do it at all may be the FSF answer, but he does not pay $57,500 a year for W3C membership dues. The point that Tim has missed is that the W3C membership is already annoyed on the value for money front, W3C is way more expensive to join than OASIS where we pay $10K. We are also far from happy on the bogus process front, it took me almost a year to get a W3C working group started. I am not happy with a set of document publication rules that are 'standards based' but turn out to mean that you can only edit standards with one editor.

    The last thing W3C needs to do at this stage is to reopen the IP issue with the membership.

    • Jay, you're wrong. (Score:5, Informative)

      by Bruce Perens (3872) <bruce@perens.com> on Monday December 30, 2002 @06:43PM (#4984871) Homepage Journal
      Folks It is essential for the Free Software community to support the W3C as it stands today. The policy does what it's supposed to do - it protects web standards for Free Software. Unfortunately, if we ask for more than that, we will lose everything we've fought for. The reason is simple. Members join the W3C voluntarily. If a consequence of joining is that any and all of their patents that are used in a standard will become free for any use whatsoever, they will not join, and they will instead make their standards in an organization that lets them charge royalties for use within the standard. We will have lost.

      Nor does it make it impossible for GPL software to make use of the patents. If you want to use a patent in GPL software, put that routine under the MIT license, which does not have the GPL's language regarding patents, and can link with GPL work. This work-around was suggested by Eben Moglen.

      This doesn't mean I support software patents. I think they should be eliminated. But we can't eliminate software patents through W3C - only through legislatures.

      I'll end this with a plea to Jay Sulzberger. Jay, you are working to destroy two years of work by myself, Eben Moglen, and Larry Rosen. You didn't participate in the patent policy working group. I didn't see you volunteer. You don't sufficiently understand the issues yet. Please help us get the current W3C policy accepted, so that things will get better instead of worse.

      Bruce

      • Thank you, Bruce, for the answer to the question that I asked (in a thread above).

        I must admit that I'm barely comfortable with any patented software, but if it is usable with GPL software (via the suggested intermediate MIT licensed code), then that's "sort of acceptable". I still feel that any code relying on such a workaround should be immediately marked deprecated (but no replacement available). It feels like intentionally contracting head lice. But head lice aren't usually fatal. Perhaps sometimes you need to take the risk. Perhaps.

        I can't really write to them applauding their choice. But I guess that it should be supported as best one can in good conscience. Even if that just means not flaming them. It does cause me to wish that Open Source folk were more interested in writing standards (but it doesn't increase my interest in doing so).

        I'm afraid that to me any "standard" that is encumbered with patents will always have quotes around it. Likewise any "standard" that can only be published and distributed by one group. (Can you say Fortran?) I don't consider such things to be genuine standards. Specs, perhaps, but standard implies that this is the approved way of doing things, and if you use some legal monopoly to prevent this spec from being distributed or used, then it isn't a standard. This remains true no matter how many PR agents the "standard" bodies hire.

        N.B.: Legal monopoly: here I'm intentionally referring to both copyright and patents. But also to any other similar scheme that creates a legal monopoly.

      • I agree emphatically with Bruce!

        A not widely or well understood fact about the MIT license is that it contains an implicit patent grant, something that I was unaware of until recently. (So what I had been nervous about with MIT/Berkeley licensed code for years turns out *NOT* to be true; we do have things reasonably covered.)

        Scott Peterson, HP's intellectual property expert on open source licenses who is also on the W3C working group with Bruce clarified this to me a few months ago, something I had not understood despite being one of the people who helped write the MIT license.

        An MIT license does allow a company this flexibility: this flexibility is not a bad thing, if it results in our ability to distribute code that would otherwise be unavailable to us.

        What is more, there is good case law about how far afield you can go in taking this implied grant of patent into other areas. Nearby uses are fine, but if you go far afield, you don't get use.

        Let me give a concrete example: I know of an algorithm that HP holds patents on that we may want to use for window system use, also used in our printers. (This is more than a hypothetical
        case, though it looks like technology may advance to where we don't need to bother). I think it likely if we need to use that algorithm we'll be able to write an implementation and use it in X under an MIT license, but it is extremely unlikely that HP could/would/should choose to allow it to be used for arbitrary purposes. The very nature of the MIT license along with the case law in this case would work in our favor to have access to that technology (if we need it; not yet clear);
        but I guarantee it would never be available under a GPL.

        We need a situation, as Bruce says, which allows companies to cooperate in areas we care about without them going to other, much less benign standards venues. And many of them *will* go elsewhere, if this gets pushed too far.

        So I believe that not only is this result good, but better than we could have hoped for even a year or two ago.
        - Jim Gettys

      • Geesh, I feel like I'm stalking Bruce here. Not really meaning to, but there's points being brought up that I feel need addressed. Nothing personal.

        If a consequence of joining is that any and all of their patents that are used in a standard will become free for any use whatsoever, they will not join,

        The patent only becomes free for any type of use if it is submitted as a standard. It only becomes a standard if accepted by the primary body recognized as responsible for making standards. Today this is the W3C.

        If a company is concerned with IP protections, the technology should not be submitted as a standard in the first place. They should take their patent and produce a product to compete in an open playing field with other patented technologies. Establishing an artificial monopoly with a major standards body backing it is by its very nature an unfair advantage being handed out by the W3C. This goes beyond simply conflicting with the GPL.

        and they will instead make their standards in an organization that lets them charge royalties for use within the standard. We will have lost.

        A company looking to try to establish patented technologies to some other paid for standards body isn't relevant. It's only relevant when accepted by the primary standards body. Once wedged into the recognized standard, oh boy does it every become relevant.

        Once patented technologies are adopted as standards, we really will have lost.
    • The problem isn't that GPL'd code could possibly be modified so as to require a patent license (that would only be the modifier's problem, and they wouldn't have the right to redistribute). The problem is if a standard requires use of a patented algorithm that's licensed "for Web use only", all GPL'd code must be excluded from any implementation of that standard. That's a big step back from what most people expected of a standard that set out to be royalty-free.
      • by Bruce Perens (3872) <bruce@perens.com> on Monday December 30, 2002 @06:57PM (#4984942) Homepage Journal
        All you need to do is embed the patented practice in a file that is covered by the MIT license, and link it to the GPL stuff. Eben Moglen, the attorney who works on the GPL, suggested this.

        Bruce

      • The problem is if a standard requires use of a patented algorithm that's licensed "for Web use only", all GPL'd code must be excluded from any implementation of that standard.

        If that is the case (I doubt it is) the solution is for the FSF to rev the GPL so that it works in a sane manner or for folk to choose a license that does not have that effect.

        What we are talking about is open, royalty free Web standards. If the FSF can't live with an open royalty free web standard that uses technology that is encumbered for other purposes then that is their funeral.

        Bruce is completely correct about the politics here, the W3C has already tried people's patience on many fronts, they simply cannot throw the IP policy into confusion yet again.

    • The issue for me as an architect (I have written IETF, W3C and OASIS standards)

      Well, bloody well good for you. Might I suggest that the standards process should be designed for the good of users and developers and not to make the architect's job easy?
      If I need to get an IP owner to donate their property for the common good my job is easiest if I have to ask for as little as is necessary for the particular purpose.

      Okay, let's dispense with this "IP" business. What you're saying, in terms of modern technology realpolitik, is that company X tricked the USPTO into granting them a patent on some technique that any half-smart grad student would have come up with in fifteen minutes, and it's causing you grief because the same technique would be useful in the web standard you're drafting. The process of begging X for permission to encode multibyte characters in ASCII [delphion.com] will go more smoothly if you can avoid impacting X's revenue stream of lawyering productive technology companies to death, and you really don't give a shit about any of this GPL stuff.

      So you cut your deal with the "owner" of the "IP," and come up with a web standard which is impossible to implement in GPLed software. I have to confess, I'm mystified as to why the FSF would be upset about any part of this process, much less your part in it.

      The FSF reading on the situation is 100% about their ideology and has nothing to do with real needs as far as I am concerned. Open Source software is not imune to the patent system. If you modify any open source software sufficiently you will run into a patent infringement.

      If you apply the FSF "logic" you would have to stop distributing gzip because someone could modify it so that it infringed the Unisys LZ patents.


      Bear with me: One of the terms of the GPL is that code licensed under it has to be freely redistributable -- you can't take GPLed code, modify it, and sell it to someone else under "GPL plus Bob's license" terms, where Bob's license allows him to come over and root through your fridge whenever you redistribute the software. In order for the GPL to have any meaning, there can't be any extra restrictions placed atop it -- and, as you point out, free software is indeed subject to patent restrictions like everything else. Hence, patented code has extra restrictions -- hence it's incompatible with the GPL unless it's completely royalty-free. In fact, this is exactly why it's not okay to sling around copies of gzip which include LZW (even if you've gotten special permission from Unisys to do just that) -- patent law forbids free-use rights to the recipients, but you have to grant those rights by the GPL, so you can't distribute the modified gzip at all.

      At the end of the day the IP policy is utterly irrelevant since nobody is going to use the specification unless the IP terms are acceptable


      So why would you, as a celebrated author of standards for the veritable trifecta of IETF, W3C, and OASIS, even consider including patent-encumbered technologies in a standard? Obviously people are going to use the patent-encumbered standard -- witness the popularity of mp3s -- and the only people who are going to be upset are those goddamned hippies who use Leenox. Which brings us, approximately, to where things actually stand.

      The last thing W3C needs to do at this stage is to reopen the IP issue with the membership.


      I heartily agree. "If it's wrong, leave it wrong," I always say.
      • Well, bloody well good for you. Might I suggest that the standards process should be designed for the good of users and developers and not to make the architect's job easy?

        Who do you think decides which body to send the specification to?

        There is a buyers market for standards groups. If I can't get what I want from one group I will take my work to another, if there is no group that is acceptable I'll start another.

        What I am looking for from a standards group is an open process with as little overhead as possible that produces a competent, interoperable and widely supported standard. In most cases that is going to mean 'unencumbered'.

        Your description of the software IP problem is simply cluless. Yes there are garbage patents out there, but those are simple if you know the prior art. The problematic patents are the ones where there might be a valid claim.

        The software patent lunacy has got to the point where people object to any clever stuff in my designs, not because there is a patent it infringes but because there might be an application in, so by default do everything a stupid as possible. It gets worse, there are people who read my designs and then file a perjured patent application claiming they invented them.

    • if you want to do voice browsing you will run into IP issues and your choice will be do something encumbered or don't do it at all.

      If that is the case, then we certainly do not want voice browsing as a standard. And companies who might stand to gain something from it because of their expertise or proprietary software in that field, will instead gain nothing because they chose not to give up the right to enforce their patents in this area, causing nothing to be standardized.

      In other words, if they want to make their bed that way, then they can lie in it... alone.
    • ...is that I don't necessarily own all the IP that I need to address a problem.

      Then the problem isn't addressed.

      The notion of patents hasn't slowed down Macromedia from making Flash a defacto standard on the web. It addresses a number of problems without being a W3C standard or recommendation.

      The issue isn't whether or not patented technologies get used, or even permitted under a limited royalty system. We're talking about whether or not these technologies are allowed to be included into what is agreed industry wide to be the standard for web technology. This is what is at issue here.

      If a company owns a patent they wish to exercise at some later time, great! They spent the money for the R&D and the patent process. They should most certainly be allowed to benefit from this effort if the USPO approved it. That does not mean that it should be allowed in as an industry standard which inhibits a truly open playing field.

      If you apply the FSF "logic" you would have to stop distributing gzip because someone could modify it so that it infringed the Unisys LZ patents.

      No. If you apply FSF logic here, you would have to stop distributing gzip if someone did infringe on the Unisys patents.

      I would think that the history of LZ within GIF would be a pretty good indicator of where this patent business is heading with the W3C members so concerned about it.
  • by benploni (125649) on Monday December 30, 2002 @05:36PM (#4984408) Journal
    Jay Sulzberger is the one on the right with the beanie:
    http://forums.fark.com/cgi/fark/comments.pl?IDLink =327588 [fark.com] No, really.
  • I don't see the problem. Patents are about usage, not duplication. They prevent usage of a device or technique without a license. The GPL is about duplication, not usage. It prevents/requires restrictions on duplication and redistribution in whole and in part.

    Even if it weren't that way, the worst case scenario is you'd need a different "free" license than the GPL for the code which was patent encumbered. Folks, the GPL is not holy doctrine. Its a convenient way to gift code with more of an ability to force your morals on the recipient than public domain offers. Its nothing more.

  • So that the code rights remain the same but any original data structure or algorithm in the program automatically go into the public domain.

  • Well, I did my part - I wrote up a message explaining why I felt the section should go, and mailed it off.

    I got back an automated response saying the message had been accepted, then a seperate message saying that I would have to visit here [w3.org] to give permission to post the message to the mailing list and store it. However, trying out that link gives me the message:

    Error: There is no message with id: 3a9041e823e02419d0f7ddd1223cf918b8a3e226. Please make sure you have cut and pasted the URI correctly.

    So, good luck to those trying to remove the offending wording if those opposed can't even submit persistent comments!
  • It's sections 3, items three AND SEVEN which have the problem. Not just section 3 item 3.

    Currently, the last comment I see is three days old: http://lists.w3.org/Archives/Public/www-patentpoli cy-comment/2002Dec/ [w3.org]

    I hope Slashdot's last-minute comments aren't headed into the bitbucket.

  • This is the best explanation I saw of why this is a relevant issue:

    From the FSF's Position on Proposed W3 Consortium "Royalty-Free" Patent Policy [fsf.org]:

    Here's a detailed step-by-step example that shows how this problem could play out:
    Programmer P downloads the Konqueror web browser, receiving it under terms of GPL.
    P learns of a new web standard that requires exercising a technique for parsing URLs that is patented by Corporation C. C has licensed the patent under an RF, non-exclusive license, but with a "field of use" restriction that says the license can be used to "implement the standard". The standard, as it turns out, covers only what browsers must do with URLs, and says nothing about the server side or clients that aren't user browsers.
    P implements this technique in Konqueror, and seeks to redistribute the modified version on his website so that other users can benefit from Konqueror now complying with the standard. If he does, he is bound by the GPL under copyright law, because he is redistributing a modified version.
    However, he knows full well of a condition on that code that contradicts the GPL (violating Section 7) -- namely, he knows that C's patent license prohibits folks from taking his URL parsing code and putting it into, say, a search engine. Therefore, under GPL Section 7, he is prohibited from redistribution.
    You might think that he can simply assign his copyright to the existing copyright holder of Konqueror let distribution happen from that source. They could distribute under GPL, but they would be granting a self-contradicting license. Nothing (to my knowledge, but IANAL) prohibits someone from distributing copyrighted works under licenses that make no sense and are self-contradictory. However, it is certainly true that those who receive distribution of the works are stuck and can't undertake further distribution or modification themselves.

    Thus, regardless of who makes the changes, the result either shuts down distribution or forces the original developer to abandon GPL. Both outcomes are very unfortunate.
  • The bad assumption is that the GPL is infallible and thus immutable.

    If the clause would lead to a situation where you can't release standard-compliant software under the GPL...

    Don't use the GPL for the software.

    Problem solved.

    Am I the only one who thinks accomodating a particular software license is pretty low on the list of considerations when writing a standard?

    The FSF "Everything must work with the GPL or else" is a very... Seatle Corporation perspective.
    • No. The assumption is that Linux is GPL, so anything that is to become a part of Linux must be GPL.

      If you don't think that W3C standards should be used by Linux, you don't have a problem. If you do, then you need some way to make it work. Using the MIT license as an intermediate is... acceptable for peripherally significant items. Sort of.

      You write your code and choose your license. Other people decide whether or not to use it. The same applies to standards. I think that the W3C has earned a "Dubious...perhaps D+" rating. "standards" with these characteristics are to be avoided, if at all convenient. If not, then they are to be replaced by something else as quickly as feasible.

  • It's not that the W3C Team want to see software patents or encumbered specifications. But we can't make them go away.

    So the question becomes, how do we survive, and how does the Web survive, and move forward, in a world with software patents?

    Part of that involves negotiation with the large companies who hold the largest patent portfolios: it would be almost useless trying to publish a patent policy document if the holders of most of the patents didn't agree to it. So there are some pretty complex constraints.

    Simply writing to say, software patents are bad, isn't going to help much. But if you have solid constructive ideas on how to change things, or on how to come to consensus and agreement both with GPL implementations of specifications and with the need that large organizations have stated they have, to keep patents for "deefensive use", I think that would be very helpful.

    Of course, just writing to say you like the current draft patent policy, or that you want to see some specific change, or that you don't like it and why, is also helpful, although it does add work for W3C staff, who are obliged to reply to every comment!

    If you really want to make a difference, write to your political representative - congressperson, member of european parliament, MP, etc. - and say that software patents are bad for business, are bad for research, are bad for the future of the world, and will cause Orcs to attack Helm's Deep.

    Well, maybe Helm's Deep isn't about patents, and not everyone agrees patents (or orcs!) are bad, But if you want software patents to go away you need to be heard. The DMCA had approx. 300 public comments; writing really does make a difference.

    Disclaimer: I am XML Activity Lead at W3C.

  • I believe you meant zealous [reference.com].

    Have a great new year, Tim! :-)
  • The W3C has never been a standards body. They have been a bunch of people that came in after the fact and "defined a standard" -- poorly. Out side of some of the Open browsers no one in the real world cares about W3C's web standards and the only other thing they did was XLM which anyone who understands real computer science will know is a nasty way to pass info around since file corruption errors diverge into two states one eats up infinite memory, the other infinite time.

    I don't care what w3c does and the sooner they shoot themselves in the foot (or head) in order to suck up to any sort of funding they can find, the sooner the real world will totally ignore them and I can stop explaining to comsci newbies why these people are doing evil but ignorable things.
  • by 3seas (184403) on Monday December 30, 2002 @10:38PM (#4985934) Journal
    let the W3C screw themselves.... lets stop using them as the voice of standards.......

    Standards are what the majority agree upon, not what some committee decides the majority should be forced to use.

    The only power they have is what people give them.

    If they screw up........ Then thyey aren't the standard....

    What the backup plan? In case they do sell out..
  • Looking at the public comments Jay links to, it appears this campaign has been successful in inducing many people to write in favor of changing those terms in the standards.

    It seems to me, however, that Bruce Perens, in the many posts you see above, is right. That is, these standards are as good as it gets.

    So -- write saying you support them, to counterbalance all the previous trigger-happy or (IMO) zealous individuals.
  • There is no place for a patent in an "open standard", period.

    The current proposal offers to admit patented techniques into the
    W3 standards if a special grant is made allowing the technique
    to be used with the web.

    This is wrong-headed for two reasons.

    First, it would not be fair to a patent holder if the W3C, in the
    future, extended the definition of "web infrastructure" to include
    new technologies and techniques which may not now be considered
    part of the web infrastructure. The W3C therefore would not be
    allowed to extend and build on the current standards in the future.

    It is crucial that the W3C be permitted to build on its current
    standards, and so this barrier to innovation and progress must
    be cast aside. Thus there is an unresolvable conflict between
    the interests of the patent holder and the future interests of
    the web community, and as a result, patent restricted techniques
    have no place in the standards of the W3C.

    Second, it limits the development of web infrastructure. For it
    is by outside innovation and creativity that the infrastructure
    of the web has been constructed: much of it passed to the W3C
    from outside hands. Successful and innovative techniques have
    been widely adopted and subsequently standardized. Almost all
    of the core standards of the W3C were derived thus.

    By limiting development to approved "web infrastructures" only
    this leading edge of creativity will be blunted: no innovation
    will occur ahead of the standards curve, for that work shall
    be considered not a part of the "web infrastructure" and
    therefore subject to the restrictive patent.

    In order that the W3C members and general public receive the
    benefit of outside innovation it is critical that innovators
    be permitted to extend and experiment with W3C technologies
    in any way they like--pushing out the definition and scope
    of "web infrastrcuture" as they go, in unforseen ways.

    The current policy is therefore shortsighted and may even
    ultimately doom the W3C to irrelevance, as creativivity and
    innovation is directed elsewhere, and innovation on the web
    infrastructure itself withers away.

    The current policy is therefore shortsighted, unhelpeful,
    suicidal, and unfair. It ought to be abandoned: patented
    techniques may enrich their innovators justly, but ought
    not to be considered for inclusion in a W3C standard.

    Justin Chen-Wells

  • by vrmlguy (120854) <[moc.liamg] [ta] [esywmas]> on Tuesday December 31, 2002 @10:48AM (#4988290) Homepage Journal
    My email, reproduced below, is a compromise, reflecting both the FSF concerns and the points made by Bruce Perens in other threads.
    I complement the W3C working committee on the revisions that have been made to the Patent Policy. The originally proposed policy would have denied the full and free use of free software to build the Web. The most recent revision attempts to guarantee that free software may be used without fear of patent encumbrances. Unfortunately, the most recent revision still contains a flaw. In spite of this, I APPROVE OF THE PROPOSED POLICY as being the best that we can hope for at this time.

    I refer to Item 3 of Section 3, titled 'W3C Royalty-Free (RF) Licensing Requirements'. This Item allows for a supposedly free grant to use a patent to be restricted such that a piece of Web infrastructure software might be encumbered if used for some non-Web use. This is an unfortunate restriction. For example, web browsers and proxy servers require the use of similar software to locate and retrieve content. It is quite possible that the proposed requirements could allow a patent to be used royalty free in one case, but not the other. As another example, web browsers and file managers also contain much duplicate functionality. Again, a patent could be royalty bearing when used in the latter though not the former.

    I would like to see the language of Item 3, Section 3, be changed to require that any patents be completed unencumbered, but I realize that this may be impossible in the current political climate within the committee.

    The opinions expressed in this email are my own and do not necessarily reflect those of my employer.

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