W3C board votes for royalty-free patent policy

A year ago, the World Wide Web Consortium proposed a policy to allow royalty-generating patents to be embedded in web standards. This would have been fatal to the ability of Free Software to implement those standards. There was much protest, including over 2000 emails to the W3C Patent Policy Board spurred on by a call to arms published here. As a result of the complaints, I was invited to join W3C's patent policy board, representing Software in the Public Interest (Debian's corporation) -- but really the entire Free Software community. I was later joined in this by Eben Moglen, for FSF, and Larry Rosen, for the Open Source Initiative.

After a year of argument and see-sawing, W3C's patent policy board has voted to recommend a royalty-free patent policy. This recommendation will be put in the form of a draft and released for public comment. There will probably be a dissenting minority report from some of the large patent holders. Tim Berners-Lee and the W3C Advisory Committee, composed of representatives from all of the consortium's members, will eventually make the final decision on the policy. My previous interaction with the Advisory Committee and Berners-Lee lead me to feel that they will approve the royalty-free policy.

The policy will require working group members to make a committment to royalty-free license essential claims - those which you can not help infringing if you are to implement the standard at all. There is also language prohibiting discriminatory patent licenses. The royalty-free grant is limited to the purpose of implementing the standard, and does not extend to any other application of the patent. And there is a requirement to disclose whether any patent used, even a non-essential one, is available under royalty-free terms, so that troublesome patents can be written out of a standard. The limitation of the scope-of-use on patents, and some other aspects of the policy, are less than I would like but all that I believed we could reasonably get. Eben Moglen may have some discussion regarding how GPL developers should cope with scope-of-use-limited patent grants from other parties. For now, it should suffice to say that while this is less than desirable, is will not block GPL development.

I'm not allowed to disclose how individual members voted, but I'll note that the vote did not follow "friends-vs-enemies" lines that the more naive among us might expect - so don't make assumptions.

Now, we must take this fight elsewhere. Although IETF has customarily been held up as the paragon of openness, they currently allow royalty-bearing patents to be embedded in their standards. This must change, and IETF has just initiated a policy discussion to that effect. We must pursue similar policies at many other standards bodies, and at the governments and treaty organizations that persist in writing bad law.

For me, this process has included two trips to France (no fun if you have to work every day) and an appearance at a research meeting in Washington, a week in Cupertino, innumerable conference calls and emails, and upcoming meetings in New York and Boston. That's a lot of time away from my family. Larry Rosen has shouldered a similar burden while nobody has been paying him for his time and trouble, and Eben Moglen put in a lot of time as well. Much of the time was spent listening to royalty-bearing proposals being worked out in excrutiating detail, which fortunately did not carry in the final vote. We also had help from a number of people behind the scenes, notably John Gilmore, and the officers and members of the organizations we represent.

I'd like to give credit to HP. Because I was representing SPI, and HP had someone else representing them at W3C, I made it clear to my HP managers that they would not be allowed to influence my role at W3C - that would have created a conflict-of-interest for me, as well as giving HP unfair double-representation. HP managers understood this, and were supportive. During all but the very end of the process, HP paid my salary and travel expenses while they knew that I was functioning as an independent agent who would explicitly reject their orders. Indeed, HP allowed me to influence their policy, rather than the reverse. This was the result of enlightened leadership by Jim Bell, Scott K. Peterson, Martin Fink, and Scott Stallard.

For most of the existence of Free Software, technology has been of primary importance. It will remain so, but the past several years have seen the emergence of the critical supporting role of political involvement simply so that we can continue to have the right to use and develop Free Software. I do not believe that we will consistently be able to code around bad law - we must represent what is important about our work and involve ourselves in policy-making worldwide, or what we do will not survive. I hope to continue to serve the Free Software Community in this role.

    Respectfully Submitted

    Bruce Perens