[linux-elitists] 31 December 2002 Deadline for Comments on W3C Patents Policy
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 <email@example.com>
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 ]
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 <firstname.lastname@example.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"
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 ]
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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
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Updated: $Date: 2002/12/04 14:50:44 $ $Author: bkuhn $
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