<nettime> cnet: W3C plan to patent web standards draws protests

["geert lovink" <geert@xs4all.nl>]

http://news.cnet.com/news/0-1005-200-7373745.html

W3C patent plan draws protests
By Margaret Kane and Mike Ricciuti
Staff Writers, CNET News.com
October 1, 2001, 1:30 p.m. PT

A new and controversial proposal under consideration by the World Wide Web
Consortium could open the way for companies to claim patent rights--and
demand royalties--on standards authorized by that body.

The W3C works with developers, software makers and others to come up with
standards for the Web, which can then be used by just about anyone to
build Web software, free of charge. To date, either those standards have
not been based on patented technology, or the holders of patents have
chosen to not enforce patents in order that the standards be widely
adopted.

But a new proposal may open a few cracks in that wall, allowing companies
to enforce patents based on those technologies and to potentially charge a
royalty fee to developers who use them. The W3C's Patent Policy Framework,
more commonly referred to as the "reasonable and non-discriminatory"
(RAND) licensing proposal, acknowledges a central conflict to the
standardization process: Companies that spend serious time and effort
coming up with the technology behind the standards may be reluctant to
simply give away the rights to what they consider their intellectual
property.

That proposal, written by W3C members representing large technology
companies such as Microsoft, Apple Computer, Hewlett-Packard and Philips
Electronics, has kicked off a firestorm of controversy among developers,
some of whom claim it will spell the end of innovation for the Web and
could lead to undue influence by commercial companies over the standards
process.

More specifically, some developers believe the proposal calls into
question the W3C's role as the arbiter of standards related to the Web. A
final decision on the policy is expected from the W3C by February 2002.

Calls to Microsoft and other large technology companies were not
immediately returned. A W3C representative did not immediately respond to
a request for comment. "This proposal would effectively ban open-source
interpretations of these standards," said Bruce Perens, who helped write
the Open Source Definition in 1998. "We don't have royalties in
open-source software. The W3C can potentially marginalize itself with the
RAND proposal."

Mike Todd, president of the Internet Society's Los Angeles chapter, said
the RAND proposal would "create a situation where users would get used to
using something that contains these sleeping copyrights, and then if they
are activated, they will cause chaos."

Todd suggests that if the W3C adopts the proposal, users of W3C standards
containing copyrights should be advised of the specific copyrighted code,
so "people are aware that there is a certain aspect (of that standard)
that is copyrighted, but if you don't use it, you are in the clear."

The W3C was founded in 1994 to "lead the World Wide Web to its full
potential by developing common protocols that promote its evolution and
ensure its interoperability," according to the organization's Web site.
More than 500 organizations are members of the W3C, which has developed
more than 35 technical specifications behind the Web, such as HTTP, XML
and HTML.

In the early days of the Web, the W3C set direction on many technologies
key to the Web's adoption. But as the Web has become more mainstream, and
more usable, the W3C's work has become more complex and arcane, said one
analyst. "There is a sense that the (W3C) is becoming a little too
academic and out of the mainstream and their work too esoteric," said
Uttam Narsu, an analyst with Giga Information Group.

The RAND proposal may be in reaction to that increased complexity, said
Narsu. "The W3C needs to look at streamlining the standards process by
taking something that is a de facto standard" and making it a
W3C-recommended standard. "There is considerable difficulty to come up
with a standard that does not infringe on a patent," Narsu said. While the
W3C in the past recommended standards that are patent-free, that doesn't
mean those technologies were always the best way to solve a given problem.
"It may be that the adopted standard is the second or third choice,
because the preferred technology was patented," Narsu said.

Other standards bodies already adopt standards based on proprietary
technology. And patents are not unknown to the world of standards bodies;
the Joint Electronic Devices Engineering Council, or JEDEC, for instance,
permits companies to submit patents for adoption by the group and to
collect royalties from members.

While the group prefers to adopt free patents, it will adopt for-fee
patents as well. JEDEC states that members have to disclose pending
patents--the organization can't adopt a standard with an undisclosed
patent--but it can adopt a patent into a standard if disclosed. The patent
owner can also choose to license it for free or charge everyone an equal
royalty.

Narsu said typically there is pressure on the patent holder from the
community of users surrounding standards bodies to loosen up patent
requirements, which many companies do.

Specifically, the RAND proposal would require:

. That W3C working groups spell out the licensing terms for a proposal
along with the technical requirements in its charter.

. All W3C Members to disclose any patent claims they know of that may be
essential to a recommendation. Members whose contributions become the
basis for working group efforts would have an additional obligation to
disclose relevant patent claims and licensing conditions at the time of
their submission.

. All W3C Members to make a legally binding commitment to license patent
claims essential for implementing a W3C recommendation on RAND terms. If
they're not willing to license particular technology on RAND terms, they
must opt out of specific patent claims they hold, normally within 60 days
after the publication of the last-call working draft.

Some of the controversy involves not just the proposal itself, but the
timing. The period for public comment on the proposal expired Sept. 30.
Although the proposal was published to the W3C's Wet site on Aug. 16, and
news about it was posted on the W3C's site on Aug. 20, most of the
comments indicate that people were not aware of the proposal until this
past weekend. Many are calling for an extension of the public review and
comment period. A W3C representative said there "has been discussion"
about extending the comment period.

But once the proposal was publicized through postings on open
source-friendly sites including Linux Today and Slashdot.org, the
criticism was fast and furious.

"A bad policy," "Just say NO!" and "RAND is WRONG," read typical subject
lines of the comments that were submitted to the W3C.

Notable open-source proponents, including Free Software Foundation
President Richard Stallman, have urged the W3C to declare that all
important standards must have free patent licenses.

Stallman's comment also argued that the policy may not discriminate
against a specific person, but it does "discriminate against the free
software community, and that makes them unreasonable."

The W3C proposal is backed by some of the largest technology makers in the
industry. The working group that developed the proposal includes a who's
who of technology: Microsoft, Hewlett-Packard, Philips, Apple, AT&T, IBM,
ILOG, Nortel Networks, The Open Group, Reuters and Sun Microsystems, along
with W3C affiliates.

And some of those companies, most notably Microsoft, have shown their
disapproval for certain aspects of the open-source movement.

In June, Microsoft Chairman Bill Gates called the GNU General Public
License that governs the distribution of some open-source software
"Pac-man like," saying it "is impossible for a commercial company to use
any of that work or build on any of that work."

One posting to a W3C newsgroup, from a person claiming to be a Microsoft
employee, defended the proposal. "Patents are a critical part of our
Intellectual Property systems and a key underpinning of our capitalist
economy," the posting read.

The authorship of the proposal didn't go unnoticed. One commentator argued
that it "has the ugly smell of a meat packer bribing the USDA."

Even if the proposal is approved, it could cause infighting among those
large businesses that are requesting the right to charge royalties.

"The fighting will not just be over royalty-free (RF) versus RAND," Bruce
Pezzlo, president of Plum Computer Consulting, told CNET News.com in an
e-mail. "The arguments will be between each party who believes they have
some patent that is related to any proposed standard. Each will jockey for
a position, monitor what the others are charging as fees, and believe they
too should be entitled to the same.

"The net effect will become standards will take too long to become
adopted, and not widely adopted should the cost of fees become
prohibitively expensive."





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