Patents, Royalties, and the Future of the Web
by Kendall Grant Clark
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Pages: 1, 2, 3
The Threat to Open Source and the Web
One theme that's emerged from the XML community is that RAND licensing is a threat to open source, to the non-commercial implementation of non-proprietary standards and, hence, to the Web itself.
Recognition of the threat to small, independent developers was among the earliest community reactions to RAND licensing:
It doesn't seem likely to smell good to developers distributing their code for free, certainly (Simon St Laurent).
I predict that if following such recommendations _might_ expose people to future legal action, then people will simply go elsewhere, just as people went elsewhere when a mere perception of risk became attached to gopher (Jonathan Borden).
Non-RF standards would have a devastating impact on open-source software, which has historically been very important in the development of the Web (James Clark).
Adam Warner put the nature of the RAND threat in this way:
The prospect of future fees could also have a chilling effect upon free/open source software development. Standards that require licensing fees to implement are, for obvious reasons, totally incompatible with the use of free software. If the free/open source software communities will not be able to rely upon the W3C to pursue royalty-free standards the question has to be raised whether the support of a new institution is appropriate.
In essence [RAND] requires that any company that imposes licensing restriction must impose those restrictions uniformly (the non-discriminatory part of the definition). It appears to follow that non-commercial organizations cannot be given any preferential treatment over commercial organizations since that would be discriminatory licensing.
Eben Moglen, speaking on behalf of the FSF, said,
The World Wide Web cannot exist as a global and uniformly-available facility of human society without free software. Apache, Perl PHP -- and literally hundreds of other immediately recognizable aspects of web technology -- have been outgrowths of the free software production model. Without free software, the web would be a commercialized outgrowth of a few proprietary software producers, and it would be incapable of serving, as it now does, as a force for global egalitarianism.
Because the Web employs no technology not based around completely open standards, software implementing every single facility of Web life can be produced in the free software model, and is therefore available for free modification and improvement all over the world, supplied at the marginal cost of distribution to any programmer -- no matter how financially constrained -- who wishes to produce new facilities and opportunities for users.
"Reasonable and non-discriminatory" licensing of patented technology embodied in W3C standards will eliminate free software production from any area of Web facilities subject to those standards. Such standards will therefore provide a basis to "embrace and extend" the Web under proprietary control, excluding competition from free software, limiting technical innovation and risking the social utility of the Web.
Bruce Perens made clear the illusory nature of the "non-discriminatory" part of RAND licensing.
By requiring "reasonable, non-discriminatory" patent licensing in W3C standards, the W3C would actually discriminate against Open Source, simply because the royalty-free nature of Open Source software is incompatible with patent royalties. This would have a chilling effect on implementations of W3C standards, restricting them only to large companies and over-expensive software.
Richard Stallman also pointed out the internal inconsistency of RAND licensing.
Aside from these substantive changes in policy, the W3C should also stop using the term "reasonable and non-discriminatory", because that term white-washes a class of licenses that are normally neither reasonable nor non-discriminatory. It is true that they do not discriminate against any specific person, but they do discriminate against the free software community, and that makes them unreasonable.
In its claim to be "non-discriminatory," RAND necessarily hurts non-commercial, cooperative, and small independent software developers. And that, in turn, will have a negative effect on the Web itself. Recall that the end of a patent regime is, at least on the US model, technical progress for the public good. While some may not agree with Eben Moglen's larger moral and political goals or claims -- that the Web is a "force for global egalitarianism" or that one must avoid "risking the social utility of the Web" -- given the nature of the Web's historical development, it's clear that RAND licensing would subvert the sole legitimate end of a patent regime, insofar as it discouraged prevented non-commercial participation in the Web's future and ongoing development. You don't have to be a free software radical to understand that whatever hurts free and open development hurts the Web itself.
Tim Bray summarized things succinctly by pointing out that "the *unacceptable* outcome is that there is eventually a piece of infrastructure with the W3C imprimatur that you have to pay toll to...use".
The W3C, It Is A'Changin'
The discussion quickly moved from a rough and ready consensus about the threat of RAND licensing to talk about the W3C itself. Most people agreed that adoption of the proposed patent policy signals an important change in the W3C.
"The W3C is not about little guys", Len Bullard said, "I suspect that is why OASIS is becoming more popular for experimental efforts while the W3C is becoming WebISO".
Respected and important independent Web developer, James Clark claimed that adoption of RAND licensing would negatively affect public perceptions of the W3C.
I also believe that such a policy would further weaken respect for the W3C as an institution and would tend to promote the perception that the W3C is a tool of its corporate paymasters rather than an organization that is trying to do the right thing, whether morally or technically.
Simon St Laurent took RAND licensing, and the patent policy framework generally, as a change in the W3C's institutional self-understanding.
Unfortunately, the proposed patent policy seems to a serious departure from that mission and the public interest. The introduction of "reasonable and non-discriminatory" licensing of patents -- with real dollar costs imposed by part 5 of the RAND license -- seems like a maneuver by some parts of the membership to make a few dollars off the public and to shut out open source development, at least the kind which lacks corporate sponsorship.
The continuing use of the word "standards" in this document also suggests that the W3C has forgotten its origins as a research group issuing "recommendations". "Standards" deserve much tighter examination and consideration than mere recommendations.
Len Bullard sounded a a similar note:
The presence of the word "standards" all over this document reveals both intent and the outcome. By claiming to be a standards organization, the W3C has overstepped its charter and made its capture a primary business goal. Effectively at this point, it quits being a means to innovate and is now a means to define market.
Perhaps sensing the wider implications for other areas of software development, H. Peter Anvin, noted Linux kernel hacker, also opposed RAND licensing, focusing on the role of the W3C as an arbiter of interoperability.
The proposal of loosening the patent policy of the W3C is an assault on the W3C itself. So far, the W3C has probably become the main reason why the web has not yet devolved into a smattering of incompatible corporate standards...
If RAND is adopted, and subsequently fee-based standards are adopted, W3C will simply be a clearing house for these proprietary standards at no end-user benefit. There will no longer be a drive to develop true standards than anyone can implement, including those that have no ability to pay royalty payments. In the end, we will all be much poorer as a result.
