Patents, Royalties, and the Future of the Web
by Kendall Grant Clark
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Pages: 1, 2, 3
RAND Alternatives
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Also in XML-Deviant | |
There has long been a wide consensus among software developers that the US patent regime is fundamentally broken when it comes to software technology: the wrong things are taken to be patentable, prior art is routinely ignored, patent pooling by large corporations tends to restrict innovation and development by small and independent developers, and so on. Given these, at present, real-world constraints, and given the mission of the W3C, since RAND licensing is objectionable, what alternative patent policies for W3C recommendations would the XML development community urge?
Many XML developers agreed that if, and only if, there are areas of software or web technology that must be patented, the W3C should not be involved in those areas, and it certainly should not offer the auspices of W3C recommendation to patent-encumbered technology.
Don Park said that the "W3C should limit its activities to areas where it can operate with minimal patent hassle". And that idea was widely expressed by other XML developers. Tim Bray expressed this point simply and forcefully.
I think that those standards which have to live in the space where you might have to pay a toll to use them are precisely those which W3C should stay away from. Yes they exist - e.g. the IEEE standardizes lots of things which you have to pay patents to use - but the reason the Web is interesting is that anyone can play without having to pay for permission. I'm not interested in playing RAND games. I'm not interested in a Web where Open-Source efforts are second-class citizens.
Alan Cox, another widely respected (formerly independent) Linux kernel hacker, suggested the W3C simply avoid development areas where patent-encumbrance and RAND licensing were unavoidable. Ideally the W3C would, Cox said, "not 'approve' or 'recommend' or allow its logo to be used on any patent-encumbered item".
As in all such public policy debates, it's important that proposed alternatives actually be implementable. Software developers know this all too well, having sometimes seen their peers chase unimplementable projects and ideas for years on end. The W3C can implement the suggested policy of only developing royalty-free recommendations, Tim Bray suggested, by
- requiring diligent search and disclosure from all members, not just those who participate in particular WGs, for IP that may stand in the way of some task or another
- where such IP exists and the holder isn't willing to grant RF, changing the standard to work around the IP
- use of the bully pulpit and any other leverage the W3C can bring to bear to make it very painful for anyone who tries to set up a tollbooth on W3C output
- declining to enter standardization activities where it appears that RF status can't be achieved
Many members of the XML development community made similar suggestions. It seems clear that the W3C would have the full support of the independent development community if it abandoned a RAND licensing framework and adopted something similar to Bray's proposals.
What are Patents for Again?
It was a welcome and encouraging sign to read so many XML developers, as well as many others, putting the matter of patents, intellectual property, and the W3C in its proper context, namely, technical progress for the public good. Several XML developers in particular made the connection between the Web, XML, and why developers do what they do very explicit.
Steve Newcomb said that the overarching goal of standards efforts should be the public good.
It would be far better to make the public interest the real focus of our standardization activities. Decisions about standards processes, and about standards themselves, should be explained to the public in terms of public benefit, showing why all the possible alternatives would be less beneficial *to the public*.
Robin Cover connected the end of technical progress for the public good to the fundamental brokenness of the current patent regime, as applied to software.
Patent law [with regard to] software is hopelessly otiose in our current century under current law. Period. It no longer serves whatever public Good it might theoretically serve in a previous century under different assumptions. The number of disaffected persons and whole companies (should SW patent law be obliterated by fiat) is minuscule, and in sum expendable. The greater Good by far lies is moving the pre-competitive boundary further forward. One is not required to be a (sic!) 'socialist' to maintain this posture; one is only required to look at the world...to understand that the foundations of technology indeed will NOT crumble if we assign to the dustbin these outdated concept and laws...
Let innovation and competition begin anew in a universe where patent lawyers are as esteemed as Mafia.
Simon St Laurent concurred with these basic sentiments, suggesting that a recommitment to the public good would put the W3C well on its way to self-reform and renewal.
Overall, I'd suggest rejecting RAND entirely as a first step toward reforming the W3C and converting it from a vendor consortium to an organization which focuses primarily, even exclusively, on the public interest. Rather than relive the 'tragedy of the commons' again, we should focus on building a stronger commons.
Since the extended comment period lasts until 11 October, it's as yet unclear how this mess will be resolved. It's also unclear whether W3C member corporations are willing to compromise on RAND licensing. Some of the corporations involved have staggeringly large revenue streams arising from patent portfolios. IBM, the most obvious example, has some 36,000 patents, from which it generates about $1,000,000,000 in royalty revenue per year. IBM is an interesting case since it's made a very visible investment, perhaps the largest so far, in open source software. So the issue cuts across not only industry lines and alliances, but also across various parts and divisions inside large corporations.
XML developers and others interested in this important issue and in the Web's future should let the W3C hear their voice regarding RAND licensing by 11 October.
- SVG Status
2001-10-14 19:17:03 Tom Poe - W3C setting standards
2001-10-13 09:48:17 Alexander Danel
