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WaSP urges all Web developers to read the Patent Policy draft and mail comments to the W3C before the 11 October cutoff date. Our own opinion follows.

WaSP to W3C: Remember your Charter and Mission

The WaSP would like to commend the W3C for taking the initiative to make explicit its policy regarding patents and Web technologies. Such policies have long been the norm in other industries, as well as in various other standards bodies.

However, the W3C policy we have been shown is not explicit, but dangerous and counterproductive.

By opening the door to the adoption of patented technologies as Web standards, the W3C is turning its back on its own long-standing charter. Among the stated goals of that mission are:

"...by enabling new forms of human communication and opportunities to share knowledge...[to] make these benefits available to all people, whatever their hardware, software, network infrastructure, native language, culture, geographical location, or physical or mental ability..."

"...designing and promoting open (non-proprietary) computer languages and protocols that avoid the market fragmentation of the past..."

The W3C has never been a voice for the masses, and has never claimed to be. But this latest draft policy gives the impression of placing no stock in the individuals and groups that made the Web possible in the first place. These individuals developed the Web and then made it free for all to share and build upon, creating tools, protocols and languages used by hundreds of millions worldwide.

By contrast, the Web of the future will be an even more corporate affair—a long nightmare of so-called "defensive" software patents giving rise to more and more litigious players.

Even if you reject as naive the idea that information wants to be free, there's no reason the channels it flows through shouldn't remain free. Instead, we see a Web fraying at the edges, as the core stagnates and the rest is locked in bitter battles between patent holders and independent developers.

Regardless of anyone's opinion of the propriety of issuing patents for software, it is clear that patents will continue to be applied for, and continue to be issued. The W3C should take a strong stand against the use or adoption of any patented technology as a Web standard, unless such patents are guaranteed to be and remain royalty-free, for use by all.

Such a stand will maintain the open nature of the Web, while allowing the participants to continue to innovate and the lawyers to continue to protect their employers' assets. At the same time, it will enable independent developers to continue expanding the variety of interoperable implementations without the threat of legal action. Remember the text of your own Member Agreement:

"[W3C] ...agree to grant and hereby grant to Member a non-exclusive royalty-free, irrevocable, right and license to use, reproduce, modify, translate, distribute, publicly display and publicly perform all computer software and documentation described in Section 7 (b) throughout the world..."

We are not unreasonable, nor are we anti-corporate. We recognize that some battles cannot be won, and that the interests of larger members of a consortium often override those of everyone else. If the Reasonable And Non-Discriminatory (RAND) clause cannot be dropped altogether, we demand:

  1. that the policy clearly define such terms as "core", "essential", "non-essential" with respect to Recommendations, existing and under development, and to future plans for the Web's design and ongoing evolution
  2. that caps be placed on any per-use fees that may be charged as a result of a RAND license
  3. that the policy explicitly state that such technology will be licensed royalty-free, if possible, to any non-profit group or individual who wishes to provide an interoperable implementation of the technology in question

To do otherwise is to sell short the very audience your mission defines, by limiting the deployment of new Web technologies only to those with a clear profit motive (whether direct or indirect) and the extensive developmental and legal resources of major corporations.

To do otherwise is to thereby stifle the very innovation, operability and universal access you so loudly proclaim as your core values.

We applaud the addition of patent disclosure requirements to the processes by which open standards are crafted. We are, however, extremely curious as to what remedies the W3C policy offers in the case of a breach of good faith by one of its Members.

As the policy stands, there are none, and we are to take it on faith that not only will Members disclose patents and applications they may not have had a hand in submitting, but if they do not, the Working Group will be disbanded and the technology abandoned in its current form.

This unacceptably weak link in the policy essentially allows any Member to sabotage any W3C technology simply by filing for a patent application.

We suggest that any Member found in violation of the disclosure clauses of the policy be barred from participation in or communication with the other Members of the various W3C Working Groups for a period of no less than two years. This should extend not only to the individual representative, but to all representatives of any Member determined to be in bad faith, whether currently involved in Working Groups or not.

Such violators should also be required to abandon all claims to RAND licensing for the technology in question, and instead make the technology royalty-free as a demonstration of their commitment to open standards and fair and open cooperation.

We thank you for opening this process up to public comment, and for extending the comment period (however briefly) so that we could actually read the proposed policy and reply. Let's make sure that the same spirit of openness and receptivity to the audience you claim to serve is not threatened again.

We understand that the "inherently difficult twists and turns of some of the patent licensing language" may have led us into error with respect to our interpretation of the policy. If so, please either do your best to explain the twists or to remove them altogether. We are counting on W3C to continue "leading the Web to its full potential."—The WaSP

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