SCN: W3C

Tue Oct 2 06:58:14 PDT 2001

x-no-archive: yes

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(Mike Ricciuti and Margaret Kane, News.com)---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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