Act Now To Sidestep A W3C Patent Pitfall

Jay Sulzberger, Corresponding Secretary of LXNY (New York's Free Computing Organization) writes with a report on the ongoing fight over patents in Web standards. "In the past two years the Free Software Movement has moved W3C, the Official Standards Body of the World Wide Web, from a proposed patent policy, which would have, in future, denied us our present right to full and free use of free software to build the Web, to a policy intended to guarantee that free software may be used without fear of patent encumbrances. This move is an important victory for us. But the present proposed policy on patents has a bug that is worth fixing. The mechanism of the bug is non-obvious, except to people who have studied the GPL and certain other free software licenses. It is a bug that, if the proposal is made an official standard, would allow for patent encumbrances to be laid on certain free software in circumstances where today no encumbrance is allowed." Read the rest of Jay's commentary (below) on this devil in the details.

Here is what the Free Software Foundation says on its front page about this bug:

"The W3C 'Royalty-Free' patent policy proposal does not protect the rights of the Free Software community to full participation in the implementation and extension of web standards. Please read more on this issue and send a comment to the W3C."

Part of the effort that moved the W3C to its present position was a furious outpouring of comments in opposition to the original proposal of the Englobulators:

• www.w3.org/2001/ppwg
• www.w3.org/2001/10/patent-response
• lists.w3.org/Archives/Public/www-patentpolicy-comment
• lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Oct/thread.html

The fix needed right now is a small fix. But the W3C must again be reminded with what jealous vigor we guard our right to build our Web the way we have built it down to this day, using free software. The bug appears in Item 3 of Section 3, titled 'W3C Royalty-Free (RF) Licensing Requirements,' of the present proposal.

This Item allows for a supposedly free grant to use a patent to be so restricted that a piece of Web infrastructure software might be encumbered if used for some non-Web use. Since the GPL does not allow such encumbrancing, GPL-ed Web software re-purposed for non-Web use could not be legally freely redistributed. Please read the Free Software Foundation's page on this bug.

Here is the official Last Call for Comments.

If you write a comment in your own words, for repair of the bug, it will help. I shall write in, and I shall argue against adoption of the buggy sub-section. I shall also suggest an extension of the deadline for comments.

Comments

Oy Slashdot!

[The Bungi]

This sudden interest in the W3C and open standards and unencumbered software and patent free and, etc. etc. is quite interesting.

Considering you intentionally block the W3C validator

I can't help but think that's about the stupidest thing /. has ever done (though I may be wrong). I mean, what's the point? Lame jokes about the crappy output of your Perl scripts got you down? How about fixing it instead??

Re:GPL is the bug.

[XaXXon]

Jesus christ..

I hate being Mr-RMS-protector and GPL-Anti-Basher, but the amount of bad "information" and people throwing completely unrelated things around infuriates me.

As some others have tried to say, this has nothing to do with the GPL putting the idea in some sort of "forced distribution" form as the author of the original comment would have you believe.

The GPL doesn't put restrictions on the distribution of ideas, only their implementations.

Here's an analogy as I see it:

Say I'd patented the idea of drawing pictures on a computer screen, and up until now the web (and computers in general) were only text base. Yes I'm stretching, but go with me for a second. I want to put pictures in a W3C standard, but I don't want to give up my right to charge money for my one-handed picture-viewing slideshow program. I submit it to the W3C standard and say "It's okay for people to use my patented idea for free for web applications." Now someone goes and makes a graphics-enabled web browser and distributes it under the GPL. Someone else then takes that GPL code and turns it into a GPL'd one-handed slideshow program -- a right the GPL affords them. Suddenly they are in violation of my patent. But the original author of the graphical web browser didn't break my patent, and the person who modified it into the slideshow program didn't disobey the license on the web browser..

And that's the problem being addressed as I see it. Note how it has nothing to do with the GPL "virally infecting" the patented idea?

Next time, read the article (and perhaps the GPL) before getting on your little pedastal. Thank you, please drive thru.

Jay Sulzberger is the one on the right with the be

[benploni]

Jay Sulzberger is the one on the right with the beanie:
http://forums.fark.com/cgi/fark/comments.pl?IDLink =327588 No, really.

Offtopic?? What?

[DunbarTheInept]

Okay, who's the moron out there that believes a post asserting a difference between GPLing of spec documents verses actual code is somehow "offtopic" under a post that's about GPLing specs infecting closed code, which in turn was under an article about GPLing spec documents? The only way to be more on-topic would be to be the person submitting the original article. But whether or not something is on-topic has nothing to do with whether or not you agree that it's true.

Is someone moderating posts at random here?

Re:Rationale for NOT submitting a comment:

[Bruce Perens]

The right place to make a stink is with governments. We've gotten the best policy that we can get from W3C without having the members walk off to another organization that lets them do what they want with their patents. I worked on this policy for two years (somewhere between 1/4 and 1/8 time), along with Larry Rosen of OSI and Eben Moglen of FSF, and got the best deal I could for the community. Let's please not blow it.

Bruce

Making a stink with the government

[Bruce Perens]

There are a number of points I would make with any government that will listen. They aren't necessarily standard-specific. They are:

• Many issued US software patents have significant prior art that should invalidate them
• Patents are supposed to describe the invention. Many of them are poorly written or are deliberately written to be obtuse or over-general, and thus fail to describe the invention. Try reading some of them.
• The 20-year term is too long for the software industry, in that there is no quid-pro-quo for the public - a patent is no longer useful by the time it enters the public domain.
• Is mathematics discovered or invented? Isn't software mathematics? Is mathematics really not an invention, and rather a discovery of the way the world works? In other words, should the patent belong to the Deity who created the mathematics of the universe (tabling argument regarding whether or there's a deity or the universe just happened).
• Isn't software just an application of the general-purpose computer, which is old enough to be unpatentable?

I could write more, but you get the picture.

Bruce

More coherent comments

[Bruce Perens]

Here are more coherent comments:

To All Members of the Free Software and Open Source Community,

For the past two years, I've been working on the W3C patent policy on
your behalf, to make it safe for Free Software to implement W3C standards.
Now, I'm worried that we could lose that fight, not because of the patent
holders, but because of our own community.

There's a long discussion below. I'm asking you to do something once you
read that discussion: Please write to
and tell them something like this (please elaborate - everyone discounts
rubber-stamp comments):

To: www-patentpolicy-comment@w3.org
Subject: Approve of draft policy - disapprove of software patenting.

I request that W3C approve the draft patent policy, because it's a
compromise that protects the right of Open Source / Free Software
programmers to implement W3C standards.

And you may want to add this:

I object to software patents, and support efforts to eliminate them
at the legislative level.

Now, to the discussion.

Three representatives of the Free Software / Open Source community:
myself, Larry Rosen of the Open Source Initiative, and Eben Moglen of
the Free Software Foundation, worked on the W3C patent policy for two
years. We spent between 1/8 and 1/4 of our time on the project for all
of that time, participating in many face-to-face meetings and conference
calls. Across the table were some companies that, I feel, wanted to
"farm" their own patents in W3C standards and would have erected
lucrative "toll-booths" to collect royalties from every implementor of
web standards. If they had their way, we would have been locked
out.

We got you the best deal we could get. It's not everything we want,
and it can't be. The draft policy is at
http://www.w3.org/TR/2002/WD-patent-policy-200 2111 4/ .

The proposed W3C patent policy grants a royalty-free right for everyone
to practice patents that are embedded in the standard by W3C members who
own those patents. It prevents "patent farming", the biggest problem
that faced us. The problem is that the patent grant is limited - it only
applies to code that actually implements the standard. This is called a
"field-of-use" limitation. The problem this creates for the Free Software
community is that other uses of the same patent in our code, for anything
but implementing the standard, could be covered by royalties.

I object to software patents entirely, and many of you do as well. Why,
then, did I (on your behalf) approve of a policy containing that
limitation, and why am I asking you to support it?

The answer is simple. Patent holders won't continue their membership
in W3C if that membership forces them to give up their patent rights
for non-standards-related applications. They will instead move their
standards-making activities to other organizations that allow them to
charge patent royalties on the standards. And we will have lost.

It comes down to what we can compel people to do, and what they won't
stand for. The patent holders want the W3C brand on their standards,
and will give up something for that. If we ask them to give up more,
they'll do without the W3C brand, and we have no way to control what
standards organization they move to. If we wish to fight software patents
outside of standards, I think our only choice is to do so at the legislative
level.

The field-of-use limitation presents special problems regarding the GPL,
because the GPL disallows a field-of-use-limited patent license. There is a
work-around for this. The code that makes use of the patented principle
must be under the MIT license, which allows a scope-limited patent
license. That may be linked into GPL code and distributed. I'm less than
comfortable with this, but my discomfort arises from the basic injustice
of software patents. A work-around is the best we can do in this case.

FSF, by its tenets, was bound to protest the field-of-use-limitation.
I respect that protest, as it is rooted an a belief that I share - that
software patents are fundamentally wrong. However, if the Free Software /
Open Source community comes out against the W3C patent policy, and the
patent holders who want unlimited rights to charge royalties come out
against it, just who will speak for it? The result will be that W3C
will fail to give final approval to the policy, and we will not even have
the limited protection from software patents that we've won. Thus, I
have to ask you _not_ to do what FSF asks this time. Of course, this
disagreement does not diminish my respect of FSF, and I will continue
to work with them as I have on many projects for years.

Thus, I'd like you to write that email now. It's very important that W3C
see support for the draft policy, or we'll be back to the old, bad policy
again. Thanks!

As always, please feel free to call me to discuss this at 510-526-1165
(California time) or write me at bruce@perens.com .

Thanks

Bruce Perens

My email APPROVING of the proposal

[vrmlguy]

My email, reproduced below, is a compromise, reflecting both the FSF concerns and the points made by Bruce Perens in other threads.

I complement the W3C working committee on the revisions that have been made to the Patent Policy. The originally proposed policy would have denied the full and free use of free software to build the Web. The most recent revision attempts to guarantee that free software may be used without fear of patent encumbrances. Unfortunately, the most recent revision still contains a flaw. In spite of this, I APPROVE OF THE PROPOSED POLICY as being the best that we can hope for at this time.

I refer to Item 3 of Section 3, titled 'W3C Royalty-Free (RF) Licensing Requirements'. This Item allows for a supposedly free grant to use a patent to be restricted such that a piece of Web infrastructure software might be encumbered if used for some non-Web use. This is an unfortunate restriction. For example, web browsers and proxy servers require the use of similar software to locate and retrieve content. It is quite possible that the proposed requirements could allow a patent to be used royalty free in one case, but not the other. As another example, web browsers and file managers also contain much duplicate functionality. Again, a patent could be royalty bearing when used in the latter though not the former.

I would like to see the language of Item 3, Section 3, be changed to require that any patents be completed unencumbered, but I realize that this may be impossible in the current political climate within the committee.

The opinions expressed in this email are my own and do not necessarily reflect those of my employer.

Re:case for change

[Nathaniel]

"The point he is trying to make, in my case, is that companies may, under the current policy, use the said clause to specifically sabotage a GPLed piece of software that is trying to implement a standard."

I understand your concern, and agree with it, but that isn't the battle being fought here.

Here's the abstract for the "Royalty-Free Patent Policy" (note the name change from simply "Patent Policy"):

"Abstract:
The W3C Royalty-Free Patent Policy governs the handling of patents in the process of producing Web standards. The goal of this policy is to assure that Recommendations produced under this policy can be implemented on a royalty-free basis."

The policy manages what it sets out to do. Specifically allowing GPL or allowing the use of a patented technique outside in something other than a web application (both worth striving for) are not within the scope of this document.

There is certainly room to urge the W3C Patent Policy Working Group to draft a policy that says web standards should not be contrained by potentially restrictive patents. Such a draft would effectively obsolete this policy, but in the meantime, this policy is useful for what it does.

Consider this a mark along the way toward a more difficult goal. This represents progress. We can agree it is not enough progress, that there is still another important mark to reach, but it is still worth having.