DEADLINE New Years: Drop the W3C's "Field of Use" Patent Policy Clause

Tue Dec 31 06:26:39 UTC 2002

The deadline is TONIGHT, NEW YEAR's EVE, for public comments
on the World Wide Web Consortium's final draft patent
policy.  Please read the message forwarded below and tell
the W3C to take the "field of use" provision out of their
patent policy draft.  And spread the word, today.

The W3C has produced a patent policy that allows for patent
restrictions to be imposed on how the languages of the
Internet may be used.  A "field of use" clause enables
protocols to be enacted which may employ patents to block
freedoms naturally exercised by developers of information
and communications technology.

The rest of the new policy shows great responsiveness to the
great public opposition that was expressed in October of
last year when they began considering allowing the
establishment of protocols on which private interests may
hold patents, and stands as a profound testimony to the
essential role that so many see that the W3C must play in
supporting sound and just information infrastructure and
policy.

However, the "field of use" clause endangers the whole
policy, enabling unreasonable restrictions to be imposed on
the usage of standardized communications protocols.  Please
read the following and send a comment to the W3C Patent
Policy Comments list stating that the future of the Internet
depends on their taking a clear position against patent
restrictions, and on their recognizing the integral role
that Internet communications protocols play in the freedom
on which innovation in information technology depends.

Seth

-------- Original Message --------
Date: Mon, 30 Dec 2002 14:11:17 -0500 (EST)
From: Jay Sulzberger <jays at panix.com>

Tuesday 31 December 2002 Deadline for Comments on W3C
Patents Policy

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 allowed.

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

<blockquote
  from="http://www.fsf.org"
  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.

</blockquote>

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 Englobulators:

http://www.w3.org/2001/ppwg
http://www.w3.org/2001/10/patent-response
http://lists.w3.org/Archives/Public/www-patentpolicy-comment
http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Oct/thread.html

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:

> http://www.w3.org/TR/2002/WD-patent-policy-20021114

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:

http://www.fsf.org/philosophy/w3c-patent.html

The text of the page is below.

Here is the official Last Call for Comments:

http://www.w3.org/2002/12/patent-policy-lastcall-info.html

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

<personal>

I shall write in, and I shall argue against adoption of the
buggy item.

I shall also suggest an extension of the deadline for
comments.

</personal>

Jay Sulzberger <secretary at lxny.org>
Corresponding Secretary LXNY
LXNY is New York's Free Computing Organization.
http://www.lxny.org

<blockquote
from="http://www.fsf.org/philosophy/w3c-patent.html">

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 at 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" restriction.

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.

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Copyright (C) 2002 Free Software Foundation, Inc., 59 Temple
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Updated: $Date: 2002/12/04 14:50:44 $ $Author: bkuhn $
_________________________________________________________________

</blockquote>