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Patents, Royalties, and the Future of the Web

Patents, Royalties, and the Future of the Web

October 10, 2001

Social theorists and historians of science and technology tirelessly remind us that technology never exists in a vacuum, that it's always already fully a social production. As historian David Noble says, technology isn't a "disembodied historical force impinging upon" human affairs.

That's never seemed more obvious than it now seems for members of the XML development community, who have been talking lately, not of technical features or challenges, but of legalities and public policy, copyright, intellectual property, and especially patents.

The imbroglio arises from the last-minute "discovery", due in large part to Adam Warner's 28 September document (W3C and the Promotion of Fee-based Standards for the Web), of the W3C's proposed patent policy, of 16 August, followed by the W3C's extension of the public comment on the proposal period until 11 October. The extension came in response to equally last-minute public opposition, sparked by the story showing up at Slashdot, LinuxToday, Linux Weekly News, and other popular tech-centric Web publications and mailing lists.

In what follows I examine the ways the XML and general Web development communities are reacting to the W3C's proposal.

Patents and Royalties

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Before looking at community reaction, it's helpful to review briefly some of the relevant legal concepts. First, at least under US law, a patent confers an "exclusive right to make, use, or sell an invention for a specified period...granted by the federal government to the inventor" (Black's Law Dictionary). The US Congress derives its authority to grant patents from the Constitution's patent and copyright clause (Article 1, Section 8, Clause 8): "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries".

A patent, then, creates a legal, limited monopoly, which is meant to promote scientific and technical progress for the common good. Notice that the point of a patent regime is not to reward the patentee per se, who may or may not benefit financially from the patent, but rather to encourage the disclosure of generally useful, beneficial discoveries and inventions. One way to encourage such disclosure is, in fact, to grant a limited monopoly, from which presumably some financial benefit may result. But neither the patentee's presumed financial benefit nor the grant of limited monopoly are the public policy end of a patent system; they are merely a means to the end of promoting the public good, means that are solely within the powers of the US Congress to determine and impose.

Second, a royalty is a payment made to a patentee for the right to use the patented invention or discovery. A reasonable royalty is one that a person would be able to pay to the patentee and still derive a reasonable financial profit from use of the patented invention.

The W3C's Proposed Patent Policy

The 16 August draft, which had received very little attention from the XML development community before 28 September, despite Elliotte Rusty Harold's note of 17 August, establishes a new licensing model, RAND ("reasonable and non-discriminatory"), which would allow the W3C to create standards the implementation of which could require royalty payments to patent holders.

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The part of the new policy framework that's been objected to most often and most strenuously is the provision allowing RAND licensing. The W3C -- in "Backgrounder for W3C Patent Policy Framework" -- says that "RAND means that someone may or may not need to pay a fee [in order to implement a RAND-licensed W3C recommendation], and that it is at the discretion of the license holder". Of course the problems with RAND licensing of the core infrastructure of the Web itself are obvious. The W3C tries to ameliorate these concerns by drawing a distinction between fundamental and high-end layers of the Web "stack."

Preservation of global interoperability of the core Web infrastructure is of critical importance. So it is especially important that the Recommendations covering lower-layer infrastructure be implementable on a royalty free (RF) basis. Recommendations addressing higher-level services may be appropriate for licensing on reasonable and non-discriminatory (RAND) terms (W3C's Backgrounder).

But that distinction, between the various essential and non-essential layers of the stack, is invidious, as Simon St.Laurent pointed out.

While some have suggested that this policy only applies to higher-level standards and isn't a threat to the core, I'd like to suggest that HTTP looks like an awfully high-level standard from the perspective of IP (Internet Protocol...) Today's core is composed of yesterday's high-level experiments, and I see no reason that arbitrarily-drawn lines will last as development continues. I also see no integration between this proposal and the Technical Architecture Group (TAG) - it simply isn't clear who decides what is core and what is not.

James Clark also disputed the W3C's distinction.

I think this distinction is irrelevant. If a Recommendation is part of the core infrastructure, then it needs to be RF whether it's low-level or high-level. If a Recommendation is not part of the core infrastructure, then I would question whether the W3C should be devoting part of its limited resources to it. In summary, if it's important for the Web infrastructure enough to be a W3C Recommendation, then it needs to be RF.

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