To the W3C Patent Policy Working Group:

I have received the following comments from various other online sources, all indicating that they have been sent to the www-patentpolicy-comment@w3.org list.

However, these comments have not shown up tonight, the final day of the comments period; I am therefore forwarding them below and cc'ing their authors.

Comments by the following authors follow:

1) Jay Sulzberger jays@panix.com 2) David Kaufman david@gigawatt.com 3) Edward Welbourne eddy@chaos.org.uk 4) Ward Vandewege ward@pong.be 5) Jim Bray jb@as220.org

Thank you,

Seth Johnson

---------- Forwarded message ---------- Date: Tue, 31 Dec 2002 15:51:55 -0500 (EST) From: Jay Sulzberger jays@panix.com Subject: Against Item 3 of Section 3 of the proposed Policy on Patents

Dear Patent Policy Working Group of the World Wide Web Consortium,

The buggy Item 3 of Section 3 of the proposed W3C Policy on Patents allows for patent encumbrances of standards-compliant software. Up to now, the W3C has not allowed such encumbrances. Up to now the Web has been built with un-encumbered software. Up to now those pushing for encumbrances have lost in the market for web servers and have lost in any free market for web clients. If the buggy policy document is adopted a special advantage will be granted to patent holders, which means, in the main, large companies and cartels. These large companies and cartels did not build the Net, we did and we did it using un-encumbered software. There is no reason to grant these companies and cartels special privileges. It is known that any patent encumbrance is effective at stopping commercial and often non-commercial development and use of encumbered software. A patent encumbrance need not be plain and direct to do such damage; an indirect, obscure, and uncertain threat of patent encumbrance is usually equally effective. Patent encumbrances can only decrease inter-operability and increase the barrier to entry in the market for software.

The World Wide Web Consortium has at this juncture a chance to act in the interest of all, rather than in the imagined self-interest of a small and economically unimportant group of special interests. I say "small and economically unimportant" because they are. They are a few companies whose combined capital is much less than than the wealth of the billion people who make use of the Web for their own private, business, and public purposes. Of this billion, a negligible number would vote to have the Web less competitive, less efficient, and less free than it is today. That means that the real stakeholders, the people of the world, are overwhelmingly against adoption of Item 3 of Section 3 of the proposed Policy on Patents.

Jay Sulzberger

For purposes of identification only:

I am the Corresponding Secretary of LXNY, New York's Free Computing Organization. http://www.lxny.org

---------- Forwarded message ---------- Date: Mon, 30 Dec 2002 14:22:10 -0500 From: David Kaufman david@gigawatt.com Subject: Comments: the "field of use" restrictions in Section 3 Item 3 of the proposed W3C Patents Policy

To: Patent Policy Working Group World Wide Web Consortium

From: David Kaufman david@power-data.com Power Data Development 87 East 21st Street Bayonne, NJ 07002

Re: W3C Patents Policy, Section 3 Item 3 "field of use" restriction

I'm writing to add my voice to those calling for the removal of the "field of use" restrictions in the current wording of the proposed W3C Patents Policy.

As a web developer, I rely on *truly* free software each day for the operation of my business. I choose to use only Free Software, as defined by the Free Software Foundation (www.fsf.org), and not merely the more broad range of other "open source" software because, to remain competitive in this industry, I must be free to modify and redistribute software without legal restrictions, in order to deliver secure and reliable products and services to my customers.

The freedom to modify and redistribute software should not be restricted to the so-called "web" or even "the Internet" as fields of endeavor, because the business use of the web and internet themselves are hardly relevant when not tightly bound to the context of a particular business, industry, field of study, or some other narrow area of human endeavor.

Patents allowing so-called free software that is restricted to the internet would be more harmful than helpful to most of the single field to which it *is* limited, the web. Why? Well, how could internet software written for a bookstore not be construed as being used in *both* the internet, and the publishing industry? Therefore future W3C patented software and protocols that are freely modifiable and redistributable only to the "web" or internet industries would be neither freely modifiable nor redistributable when an online publisher, for instance, uses these to create an OS-specific GUI application, that is protocol-compatible with their web site, built using not-completely-free tools. A non-web application that allows their staff to edit books in their database would be merely a publishing industry application, or a database application, that the patent owner might decide to license restrictively for developers to be allowed to *let it* talk to the website using a W3C-patented storage system, communications protocol, file format, or even, Amazon taught us, any simple-but-patented idea!

Such a situation would create a loophole for economical opportunism that no corporation could or would resist driving their delivery trucks through.

Companies would soon be rushing to W3C patent applications, protocols and other software ideas (which should *never* be patented in the first place) (think: Amazon-One-Click) and use the W3C's reputation to market these products as "free and open" in order to lure developers and create a large installed base of users who were mistakenly led to believe that these tools were in fact Free (as in freedom) and that any company's developers, including their own, were free to use them to extend and enhance their use and enjoyment of the software, when in fact, those freedoms would be quite restrictable by the patent owners.

The obvious second step is to then create proprietary industry-specific tools, GUI, OS/Specific user interfaces, or any other "non-web" tools for which these is No Freedom, for which only the patent owner may legally develop and sell solutions, and for which the users, the users' programmers and the entire "third-party" developer marketplace, must pay hefty licensing fees to compete, or possibly be simply forbidden from competing at all.

The GPL prevents this unfortunate situation by placing no restrictions *whatsoever* on the modification and redistribution rights granted to everyone, except one sensible one: no one may circumvent freedom bestowed on the software by the GPL license by simply *redistributing* and placing a *more* restrictive license on the redistributed version. This sole limitation closes the legal loophole of control of ideas, and protects the rights of the developers, the users, by restricting only the rights of those who would seek to further restrict or control the complete freedom rights that the developer intends, and this is why the GPL is used and championed by so many developers such as myself. It keeps freedom free. Any lesser license is vulnerable to the completely legal theft, control and exploitation of ideas.

I urge the W3C and the Patent Policy Working Group to consider this matter seriously, and take the position that is best for the users and developers of the large body of excellent and truly free software that has made the internet what it is today.

Please do not create a W3C-sanctioned loophole that must by it's very existence be exploited by the natural profiteering tendencies of normal competitive corporations which *must* bow to competitive pressures to profit by trying to legally own, control, license and otherwise restrict the use of the high quality best-practices ideas, and industry standards and other intellectual property that the W3C develops. These should remain the property of the public, not of corporations, and only a Free Software Foundation approved license can ensure exactly that those property rights are ensured.

Thank you in advance for your consideration to this matter.

Sincerely,

David Kaufman david@power-data.com

---

www.Gigawatt.com / Power Data Development \ www.ClickSQL.com Hosting Scriptage Databasics

www.Power-Data.com 87 East 21st Street, Bayonne, NJ 07002 (201) 436-0668

-------- Original Message -------- Date: Tue, 31 Dec 2002 17:16:48 +0000 From: Edward Welbourne eddy@chaos.org.uk Subject: Patent Policy

http://www.w3.org/TR/2002/WD-patent-policy-20021114/

The W3C Royalty-Free Patent Policy governs the handling of patents in the process of producing Web standards.

A very important topic. Many pieces of software in the modern world are naturally obliged to interact with the world-wide web; it is crucial that the web thus be governed by open standards, if innovation is to continue to flourish on and around the web. A standard whose implementation is covered by a patent cannot be sensibly described as open unless the patent is first de-fanged.

The goal of this policy is to assure that Recommendations produced under this policy can be implemented on a royalty-free basis.

(aside: assure ... `ensure' seems more apt ...)

I contend that this goal is too tame: software designed to interoperate with the Recommendations must also be implementable on a royalty-free basis, even if the software in question is not countenanced by the Recommendations.

Both Web Servers and User Agents (to give the most obvious examples) are significant and complex bodies of software which support mechanisms for third-party code to provide added functionality at run-time (e.g. flash and kindred plugins for browsers, or [NI]SAPI server-side extensions). Such extensions are not parts of the Recommendation, and the extension is a separate piece of software from the implementation of the Recommendation. Yet an extension may need - and typically does have - access to arbitrary functionalities of the program it extends - including those covered by an Essential Claim.

Once an Essential Claim is available to extensions to, and to programs interoperating with, implementations of a Recommendation, it will effectively be available to arbitrary other programs, save that it will oblige them to go through some artificial motions to make themselves classifiable as implementation of, interoperator with or extension to the Recommendation. Introducing the need for such artefacts benefits no-one, least of all the W3C.

It is clear, further, that many in the Free (as in Liberty) Software movement will be unable (both in principle and in practice) to work with your policy unless all techniques which are necessary to implement W3C Recommendations are available for use in all software - not just that relating to W3C Recommendations - on a royalty-free basis. The Liberty to re-purpose code - to re-use it in arbitrary other programs - is an essential part of the Open Source revolution. Any Libre implementation of a W3C Recommendation will include implementations of all Essential Claims; limiting the royalty-free ambit only to implementations of W3C Recommendations will collide disastrously with such re-purposing.

Accommodating the needs of the Free Software movement will effectively turn the policy into a requirement that patenters of Essential Claims substantially abandon relevant patent privileges; however, one may equally read this as saying that a standard cannot sensibly be called open if it depends on a technology which is subject to a monopolistic privilege. This would appear to be a prima facie truth which must be accepted by all participants in the standards-making process. To this essentially political argument, I shall add a strictly technical argument, below, with the same net effect.

(aside:

All sections of this document are normative unless specifically market non-normative.

^ marked typo !)

That said, the policy appears to be a very sensible and prudent approach to the sensitive and difficult problem of engaging holders of monopolistic privileges in the standardisation process, save for one clause which realises the restriction, implicit in the above goal, to protecting only implementations of W3C Recommendations - namely ...

Section 3, clause 3: [a W3C Royalty-Free license ...]

3. may be limited to implementations of the Recommendation, and to what is required by the Recommendation;

This may lead to software being forbidden to interoperate with a Recommendation, unless it is, itself, an implementation thereof. It may prevent extensions from integrating properly with implementations of Recommendations, in so far as they have an existence independent of the implementation (e.g. they are separately distributed). It might even oblige an implementation to use one solution to a general problem where the Recommendation requires exercise of an Essential Claim while yet using a separate solution to most of the same problem where the Recommendation does not strictly require the Essential Claim. It runs against the W3C's interests for such restrictions to arise.

Worse, such a limitation may restrict the architectural choices of those implementing a Recommendation: one would naturally chose to break up the functionalities involved therein into a family of libraries, all employed by one program to implement the Recommendation. However, no one of the libraries would constitute an implementation of the Recommendation: only the main program itself would then be allowed to contain the code which exercises the Essential Claim.

Indeed, where the Recommendation's implementation has, or may have, several running instances at one time on a computer, breaking the program up into shared libraries (a.k.a. DLLs) is the natural way to minimise the host computer's resource-use; only a `thin application' need remain as the program of which several copies are run. Likewise, if parts of the functionality (of an implementation of a Recommendation) are only used on some runs of the program, putting those parts into a shared library makes it possible for the program to only load the library when needed - thereby, again, reducing load on the computer. Again, if several W3C Recommendations require some common functionality (e.g. URL parsing), it makes sense for an implementor to write a shared library providing this, to be used by the implementations of all the relevant W3C Recommendations - rather than obliging each of these to include its own, probably with subtly incompatible bugs. In like manner, shared libraries provide a natural mechanism for the development of a W3C standards-compliant core on top of which application-developers can implement `thin applications', thus separating out the user interface from the core and allowing several different user agents to be built on top of a single engine (c.f. the gecko renderer).

If code implementing an Essential Claim is included in a shared library, however, it becomes accessible to other programs - they need only link against the shared library and exercise its API - even if those programs do not implement W3C Recommendations. It will then be a legal nightmare to decide who is guilty of the patent infringement - the application author has not written, published or distributed any code which implements the Essential Claim, but has merely linked against an API provided as part of the existing functionality of the target computer system; yet the implementor of the Recommendation supplied the shared library, in good faith, as part of the implementation of the Recommendation. Clause 3 would thus appear to allow the patent holder to forbid the implementation of an Essential Claim in a shared library.

The flip-side of this is that the natural way for an implementor of a Recommendation to make functionalities available, to other programs interoperating with the Recommendation, is to provide those functionalities via shared libraries. It is, indeed, desirable that essential components of implementations of W3C standards (e.g. XML parsing, HTTP requests, etc.) should be provided in this form, so as to facilitate the various uses (discussed above) of shared libraries as common `engine and API' components. Clause 3 allows a patent-holder to forbid such sensible practices: indeed, the objective it tries to achieve (namely, to ensure that the license not extend to applications outside the arena of the W3C Recommendation) implicitly presumes that it will be so used.

The world of computer software is ill suited to such "field of use" restrictions, since the boundaries are far less well-defined than is naively supposed in the wording of clause 3: allowing such restrictions will merely lead to a legal quagmire from which neither the W3C nor implementors of its Recommendations will ever escape. If a patent restricts the use of a technique essential to the support of a standard, either the relevant claim of the patent needs to be substantially waived or, if the patent-holder cannot be prevailed upon to do so, the standard must be changed; otherwise, the standard is not meaningfully `open'.

Please remove clause 3 from Section 3 before ratifying this policy.

Your humble and obedient servant,

Edward Welbourne. -- Writing in my capacity as a private netizen; however, I earn my living as a programmer, in which the web has been pivotal since 1994, including a period as a server developer for www.Zeus.com and my present employment as a browser developer for www.Opera.com. For more, see http://www.chaos.org.uk/~eddy/cv/history.html

-------- Original Message -------- Subject: Re: DEADLINE New Years: Drop the W3C's "Field of Use" Patent Policy Clause Date: Tue, 31 Dec 2002 18:00:53 +0000 From: Ward Vandewege ward@pong.be

In addition to doing a Masters in Science and Technology Policy, I'm a Software Consultant, and I use Free and Open Software exclusively because that is the only way I can assure that I can adapt the software I use to the specific needs of my clients.

I'm very grateful for the tremendous amount of work that has gone into the Royalty-Free Patent Policy. I really appreciate how the Patent Policy Working Group has listened to and acted on the input of the public, and worked with Bruce Perens, Larry Rosen, Eben Moglen, and others. The current compromise is laudable, and I realize it may be the best we can get short of the W3C becoming irrelevant by being bypassed altogether by corporate interests trying to establish a 'standard'.

However, I must admit I am worried about the 'field of use' clause in the proposal. I'm afraid it will make the standards the W3C endorses rather irrelevant, as they will be much less attractive for (grassroots) innovative purposes. A short example to illustrate this point:

Imagine that the Internet Protocol (IP) was established under the RF licensing requirements as proposed, and that it would only be RF when used on the internet. Would we have seen the proliferation of the IP as we see today? I don't think so. Proprietary networks that have switched to the IP would not have done so, e.g. Novell would probably not have dumped IPX in favour of the IP if there was a royalty fee involved. Companies selling products that use the IP would have had to spend much time and effort also supporting proprietary protocols they would understand less thoroughly because there would be much less documentation and sample implementations, and they would be much harder to come by. This would result in buggy implementations and/or much higher overhead. People unaffiliated with (big) corporations would not have used the IP for the thousands of innovations that they have come up with since, making the marketplace even more fragmented.

Essentially, the more open the standard, the higher the chance it will become widely used and accepted (given that there are no monopolistic factors that work against it). This is something the creators of the Internet Protocol understood well - they decidedly didn't try to foresee how the protocol would be used, rightly realising they could never guess all future uses of their innovation. Instead, they tried to remove as many barriers towards unforeseen future use as they could, both technically (by making it totally open and designing a 'stupid' network) and more relevant for this argument, financially - no royalty fees whatsoever. The result is the Internet Protocol as we know it today - omnipresent, unencumbered. Why limit the chances of open W3C standards to become the most widely used, by allowing royalties for unforeseen uses?

In the long run, I think this is in the interest of both (big) industry and more independant developers. The value of having a pool of standards totally unencumbered by Intellectual Property Rights, is that much more is available for innovators to build on. In other words, barriers to innovation go down. More innovations will be made, directly resulting in economic growth for everyone involved. If we choose this road, everyone will benefit. If not, only a few (large) entities will, and certainly not to a similar extent. In that case, the world will be a much less interesting place for people with a passion for technology...

---

Happy New Year, Ward.