[linux-elitists] 31 December 2002 Deadline for Comments on W3C Patents Policy

Jay Sulzberger jays@panix.com
Mon Dec 30 10:16:12 PST 2002

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

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

  what="first of the GNUs Flashes">

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


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:


The text of the page is below.

Here is the official Last Call for Comments:


If you write a comment in your own words, for repair of the bug, it will


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.


Jay Sulzberger <secretary@lxny.org>
Corresponding Secretary LXNY
LXNY is New York's Free Computing Organization.


   FSF's Position on Proposed W3 Consortium "Royalty-Free" Patent Policy

                              25 November 2002
                         (updated 4 December 2002)

   [image of a Philosophical Gnu]
   [ English ]

                                Our Position

   The Free Software Foundation, represented by its General Counsel,
   Professor Eben Moglen of Columbia University Law School, participated
   in the W3 Consortium Patent Policy Working Group from November 2001
   through the current Last Call draft. The Foundation regards the
   current Last Call draft, which proposes the adoption of a
   "royalty-free" or "RF" patent policy, as a significant step in the
   direction of protecting the World Wide Web from patent-encumbered
   standards. But the proposed policy is not an adequate final outcome
   from the Foundation's point of view.

   The proposed policy permits W3C members participating in W3 technical
   working groups to commit their patent claims "royalty-free" for use by
   implementers of the standard, but with "field of use" restrictions
   that would be incompatible with section 7 of the GNU General Public
   License. Such "field of use" restrictions, in other words, would
   prevent implementation of W3C standards as Free Software.

   Section 7 of the GNU GPL is intended to prevent the distribution of
   software which appears to be Free (because it is released under a
   copyright license guaranteeing the freedoms to use, copy, modify, and
   redistribute) but which cannot, in fact, be modified and redistributed
   because of patent license restrictions that limit the use of patent
   claims practiced by the software to a particular purpose. Though other
   Free Software licenses may not happen to contain provisions equivalent
   to GPL's Section 7, this does not imply that programs released under
   those licenses will be Free Software if the patent claims contributed
   "royalty-free" to the standard those programs implement are limited to
   a particular field of use.

   As an example, W3 members may contribute patent claims to a standard
   describing the behavior of web servers providing particular
   functionality. A Free Software program implementing that standard
   would be available for others to copy from, in order to add
   functionality to browsers, or non-interactive web clients. But if, as
   the present proposed policy permits, the patent-holder has licensed
   the practicing of its patent claims "royalty-free" only "in order to
   implement the standard", reuse of the relevant code in these latter
   environments would still raise possible patent infringement problems.

   For this reason, the proposed policy does not actually protect the
   rights of the Free Software community to full participation in the
   implementation and extension of web standards. The goal of our
   participation in the policy making process at W3C has not been
   achieved. The Foundation urges all those who care about the right of
   Free Software developers to implement all future web standards to send
   comments to the W3C urging that the policy be amended to prohibit the
   imposition of "field of use" restrictions on patent claims contributed
   to W3C standards. The address to which such comments should be emailed
   is <www-patentpolicy-comment@w3.org>. The deadline for receipt of
   comments is Tuesday 31 December 2002.

                 Further Non-Legal Explanation of Position

     Many in the community have requested some additional explanation of
     FSF's objections to the policy. We have added them below

   FSF's objections center around Section 3 of the W3C's proposed patent
   policy. Item 3 of that section says that the royalty-free license may
   "may be limited to implementations of the Recommendation, and to what
   is required by the Recommendation". That is a "field of use"

   The problem is the interaction of such a "field of use" restriction
   with Section 7 of GPL. Under Section 7, the "field of use" restriction
   is a "conditions are imposed on you [the distributor of GPL'ed
   software] that contradict the conditions of this License". The
   "conditions of this license" require, for example, that those
   receiving distributions of GPL'ed software have the right to run the
   program for any purpose (Section 0), the right to modify it for any
   purpose (Section 2), etc. Any of these "purposes" could easily
   practice the teachings of the patent beyond what the "field of use"
   restriction allows.

   Here's a detailed step-by-step example that shows how this problem
   could play out:
    1. Programmer P downloads the Konqueror web browser, receiving it
       under terms of GPL.
    2. P learns of a new web standard that requires exercising a
       technique for parsing URLs that is patented by Corporation C. C
       has licensed the patent under an RF, non-exclusive license, but
       with a "field of use" restriction that says the license can be
       used to "implement the standard". The standard, as it turns out,
       covers only what browsers must do with URLs, and says nothing
       about the server side or clients that aren't user browsers.
    3. P implements this technique in Konqueror, and seeks to
       redistribute the modified version on his website so that other
       users can benefit from Konqueror now complying with the standard.
       If he does, he is bound by the GPL under copyright law, because he
       is redistributing a modified version.
    4. However, he knows full well of a condition on that code that
       contradicts the GPL (violating Section 7) -- namely, he knows that
       C's patent license prohibits folks from taking his URL parsing
       code and putting it into, say, a search engine. Therefore, under
       GPL Section 7, he is prohibited from redistribution.
    5. You might think that he can simply assign his copyright to the
       existing copyright holder of Konqueror let distribution happen
       from that source. They could distribute under GPL, but they would
       be granting a self-contradicting license. Nothing (to my
       knowledge, but IANAL) prohibits someone from distributing
       copyrighted works under licenses that make no sense and are
       self-contradictory. However, it is certainly true that those who
       receive distribution of the works are stuck and can't undertake
       further distribution or modification themselves.

   Thus, regardless of who makes the changes, the result either shuts
   down distribution or forces the original developer to abandon GPL.
   Both outcomes are very unfortunate. This is why we encourage you to
   write to comment on the Last Call Draft.

   [ English ]

   Return to GNU's home page.

   Please send FSF & GNU inquiries & questions to info@fsf.org. There are
   also other ways to contact the FSF.

   Please send comments on these web pages to webmasters@gnu.org, send
   other questions to info@fsf.org.

   Copyright (C) 2002 Free Software Foundation, Inc., 59 Temple Place -
   Suite 330, Boston, MA 02111, USA

   Verbatim copying and distribution of this entire article is permitted
   in any medium, provided this notice is preserved.

   Updated: $Date: 2002/12/04 14:50:44 $ $Author: bkuhn $


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