Act Now To Sidestep A W3C Patent Pitfall

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:

• www.w3.org/2001/ppwg
• www.w3.org/2001/10/patent-response
• lists.w3.org/Archives/Public/www-patentpolicy-comment
• lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Oct/thread.html

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.

GPL is the bug.

[TheSHAD0W]

The GPL is not an unrestricted license.

I repeat:

THE GPL IS NOT AN UNRESTRICTED LICENSE.

If you want the net to be completely free, then not only can't portions of it be restricted as intellectual property, then it also shouldn't be restricted by a license like the GPL.

I would tend to oppose the use of a standard in which the specification is GPL'd, because in the case of a standard, I'd like commercial entities to be able to incorporate access to such a standard in their software; something they probably wouldn't do if they would be forced to open their source. This would effectively limit access to that standard to non-commercial programs.

If the author of a GPL'd work wishes to submit the protocol involved as a standard, then let him submit it as FREE. He can keep the code GPL'd, but the standard must be free for use -- even by commercial entities.

Re:Let me get this straight...

[Fastolfe]

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.

How is that insightful?

[chriso11]

>A monopoly over the Internet is just
>as bad in the hands of OSS developers
>as it would be in the hands of Microsoft.

How? Tell me how that would be worse... If OSS dominated the web, you would be able to use any OS to access the web, and not have to pay for it. People would be able to not worry about strange patent limitations and being sued for single-click patents. The GPL places no restrictions on content created on the web, so anything on the web would be on the web in such a scenario. Any company that wanted to make a closed source application would not be prohibited, or secretly (or blatently, as the case may be) shut out of the standards committee.

So tell me how the web would be worse if it were dominated by the OSS instead of MS. Or shut up.

case for change

[Yi Ding]

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.

A copyright licence is NOT a patent licence!

[Kjella]

Let me try to make it clearer with an example. Ford owns the copyright to the Ford cars. But that doesn't mean that Toyota can't also make a Toyota car.

But if Ford has a patent required for making *any* car (e.g. a component or standard required by law), Toyota is screwed.

This is about patents in internet standards which would prevent any GPL implementation. I don't understand what you're trying to say. Is ISS illegal because Apache exists? NO. But would Apache be illegal if Microsoft/ISS had a patent on HTTP? YES!

Kjella

Re:Let me get this straight...

[Chops]

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.

Re:It is not a small issue and not a bug

[Chops]

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.

Re:Oy Slashdot!

[HiThere]

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:Patent lawsuits are stupid, but...

[Virtex]

Lawsuits are a sign of freedom. They're a sign that the government has decided to leave as much as possible to the free market and the law of contract and tort, and not to come in with a big wet fucking nanny

If freedom is a lack of government (aka, anarchy), just remember that this whole debate is about patents, which are a product of the government. Thus, by your logic, they represent a loss of freedom, and so your whole rant becomes meaningless.

Lots of good comments - send them in

[Anonymous Coward]

I hope all the people who have made such insightfull comments here on /. take the time to send a email to W3C wit their comments. To be effective, the comments need to be made to W3C, not just slashdot.

Maybe the best thing to do is.....

[3seas]

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..

Re:NOT WORKING

[Ankh]

There was a power outage at MIT (note: it's in Cambridge, MA, not Redmond) where lists.w3.org is hosted. This was because of sheduled building work, and the date was published several weeks in advance.

I encourage you to try again -- most or all of the W3C systems seem to be running OK now.

You're also welcome to email me directly (liam at w3.org) if you want to understand more about what W3C does, or how it is organised to minimise the chance that one company can control specifications - or you can read our web site [w3.org].

[Lam Quin, XML Activity Lead, W3C]