OSI letter of comment on W3C’s proposed RAND policy

Subject: OSI letter of comment on W3C’s proposed RAND policy
Date: Tue, 9 Oct 2001 14:20:13 -0400

The Open Source Initiative has considered the World Wide Web
Consortium’s Patent Policy Framework working draft at

http://www.w3.org/TR/2001/WD-patent-policy-20010816/

and the W3C’s Response to Public Comments at

http://www.w3.org/2001/10/patent-response

The recent public disclosure of these plans to endorse patented Web
standards has ignited a major public controversy. The Open Source
Initiative’s charter requires us to speak out for the interests of
open- source developers, and this statement is intended to be our
contribution to the debate.

Recommendation for Change in the RAND Proposal

We believe that there is merit to many portions of this proposal. In
particular, we unhesitatingly endorse the patent disclosure
requirements in section 7. One does not need to settle the general
question of software patents to affirm that all developers (and not
merely open-source developers) are entitled to protection from
unethical “submarine patents”.

We further endorse in a general sense the existence of well-defined tests
for determining whether a proposed W3C standard meets the W3C’s transparency
requirements (sections 4 and 5). Clarity on these questions will better serve
web developers and the public, and the W3C is to be applauded for attempting
to document and regularize its procedures.

However, we must reject the specifics of the proposal for a RAND (“Reasonable
and Non-Discriminatory) Licensing mode. Clauses 1, 2, 3, and 6 are
unexceptionable; clause 4 is fair; but clause 5 “may be conditioned on
payment of reasonable, non-discriminatory royalties or fees” is unacceptable
as written.

While opinions may differ on whether the so-called “RAND” policy with
clause 5 is “reasonable”, there can be no question but that it is
discriminatory. Clause 5 would discriminate against open-source
developers, who operate in small volunteer project groups and have
neither the wherewithal to pay license fees nor the shelter of a
fictive legal entity with which a license might be negotiated.

OSI suggests that the proposed clause 5 can be rescued by adding a
suitable interpretation of “non-discriminatory”. The language in the
State of Maryland UCITA exempting open-source projects from
warranty requirements provides a suitable model:

The payment of royalties under a RAND license shall be waived
for any licensor of a computer program that is provided under
a license that does not impose a license fee for the right to
the source code, to make copies, to modify, and to distribute
the computer program.

This interpretation of “non-discriminatory” would leave patent-holders
the option of continuing to collect license fees from implementors
with plans to charge for the secrecy of their software.

Principles and the Larger Context

The above is a narrow technical prescription, but there are larger
issues here. The OSI would be derelict in its duty if we failed to
address those. We stand with those who see the RAND proposal as an
invasive and corrupting attempt to hijack the standards process, to
tilt the Web’s relatively level playing field in favor of players with
legions of lawyers and lots of money. That other standards
organizations who should have known better (such as the IETF) have let
this particular camel’s nose under the tent is no excuse for the W3C
to repeat that error.

RAND discriminates not merely against open-source developers, but for
entrenched monopolies and against the consumer and small busineses —
who under this proposal would be systematically deprived of
open-source alternatives and have fewer choices (all of them expensive
and proprietary).

RAND would also tend to stifle innovation. The history of the Web and
the Internet amply demonstrates that in today’s world innovation does
not come to us from the entrenched giants of technology and media —
indeed, they experience genuine innovation as an unwelcome disruption,
upsetting their strategic plans and obsolescing their cash cows.
RAND would permit — nay, it would invite — abuse of supposedly
“non-discriminatory” license terms to suppress innovation and lock in
customers.

Web innovation springs from precisely those independents and
open-source developers whom RAND would systematically freeze out of
the process. If the W3C enacts Clause 5 as written, it will be an act
of betrayal against both the Web’s history and its future. The W3C
will deserve the schism and developer revolt that would follow — and
it will deserve the fate to which this bad decision would inexorably
doom it.

In the past, “standards” that are actually manacles could be foisted
on a relatively powerless developer and user community — because both
computing technology and the software development that went with it
were expensive and centralized, requiring financial mass and corporate
management structures. In that world, there was no alternative but
fetter, and customers could only try to choose the least weighty.

The OSI exists today because those days are passing. The combination
of the Internet, personal-computer technology, and distributed
open-source development has empowered millions of users and
developers, and indeed proven that it can produce dramatically better
results than the old system. Software developers and users are
increasively refusing to accept the kind of suppressive shenanigans
that corporate-dominated standards bodies have used in the past as
market-control tactics.

The time is ripe for confrontation. Thousands of web developers have
already made their voices heard against RAND. The largest IT
consultancy in the world has just recommended that IT customers drop
proprietary webservers in favor of the open-source Apache. The
increase in adoption of open-source operating systems on web servers
continues exploding, propelled both by pressure on capital spending
and the increasingly onerous license terms attached to their closed-source
and technically inferior competitors.

If the W3C persists in its present course, it risks having its tea
dumped in Boston harbor as the first move in a revolution that will
vest effective control of Web standards in open-source groups like the
Apache Software Foundation and entirely out of the ambit of the W3C
and its sponsors. OSI would do what we can help lead that revolt.

Open Standards Require Open Source

But W3C does not have to be on the losing side. We urge the W3C to take
this opportunity not only to affirm its royalty-free-only license
policy, but to institute a requirement that no proposal may become a
W3C standard unless it is backed by an open-source reference
implementation on an open-source platform, with patent grants
sufficient to ensure that the reference implementation remains
unencumbered.

That requirement would truly create a level playing field for all
parties — users, developers, content providers, and all of the Web’s
millions of stakeholders. It would also serve as a reliable reality
check on the tendency of paper standards to effloresce into
unimplementable monstrosities.

Your organization is supposed to be committed to a World Wide Web that
is open to all. The OSI urges W3C to remember this, and to center its
standards policy around one simple truth: open standards require open
source.