[GUFSC] W3C "Royalty-Free" patent policy proposal does not protect the rights of the Free Software community

[Ricardo Grützmacher]

FSF's Position on Proposed W3 Consortium "Royalty-Free" Patent Policy

25 November 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 
<www-patentpolicy-comment@w3.org>. The deadline for receipt of comments 
is Tuesday 31 December 2002.