Subject: # Re: Alternate view of the philospophy and process for IPR inamodified RFC 2026

From: [email-masked] (Bruce Perens)
Date: Wed, 13 Nov 2002 06:59:25 -0800 (PST)

Brian,

> 1) If the IETF gets into the business of dealing with details
> of license regimes, the task of the WG chairs, ADs, etc. will become
> dominated by dealing with these issues instead of what they are
> supposed to be doing, i.e. facilitating the best possible technology
> design. It would not, as you assert, simplify the WG's operation;
> it would substantially complicate it. 

This is not the case for the draft royalty-free-only policy for W3C. That
policy will be presented for last call in a few days, and will be available
for you to read by the time of your WG face-to-face.

In the W3C policy, simple required terms for licenses, but not
the licenses themselves, are specified. The required terms are
royalty-free-only, without discrimination, with a scope-of-use limitation
to only the practice necessary to implement the standard. This leaves the
patent holders lots of room to license their patents for other applications
than implementation of the standard. We would, of course, always prefer
entirely unencumbered standards, but the scope of use limitation is the
best compromise we could come up with for the overall policy.

There is no RAND in the last-call W3C policy, none of the more-than-RAND
admitted by the current IETF drafts, and no different intellectual property
terms for "extensions".

The WG chairs need to make sure that disclosures are followed and that
the licenses submitted with the disclosures are compliant with one set of
required terms that allow all implementors. This is a managable process
and one the IETF would do well to emulate.

> 1a) Since the IETF is not incorporated, we would need legal advice,
> but I suspect these people would also become personally liable for
> any misjudgements, errors, and omissions. Personally, I wouldn't
> want to be a WG chair or AD in those circumstances.
 
I would not want to carry out any technical pursuit whatsoever without
liability protection. To do so in the face of litigious holders of
software patents and their victims is foolhardy. And the legal risks
increase substantially if your standard is not purportedly RF.

Consider that many WG participants are shielded from the direct impact of
a lawsuit by the large companies they work for. But IETF policy should
not discourage the same degree of participation by employees of small
companies and independent developers. Thus, they must be protected.

Incorporation of IETF or other measures for protection of WG menbers is
probably outside of this WG charter, but should be addressed.

> 2) If the IETF attempted to move from a RAND to an RF requirement
> (as opposed to an RF preference), then companies unwilling to accept 
> this would simply withdraw from the IETF, wait until the standard was
> published, and then start collecting royalties. This isn't theory;
> it's already happening elsewhere. 

W3C will soon declare its policy to be very much more "open" than IETF's
current or draft policy. Sure, a few companies rattled their swords,
threatening to walk out. But the reality is that it would be a foolish
move - they would only lose their influence. The vast majority of the
membership will stay put along with the three sponsoring organizations,
and the influence of W3C will _increase_, because its standards will
unambiguously admit all implementors without exception.

The purpose of a standard is to codify a way of doing things that
_all_ implementors can follow. Anything less is not really a standard.
RAND-licensed patents effectively prohibit Open Source implementations
of standards incorporating them, since the Open Source developers do not
themselves collect royalties, and can not afford to pass any on to patent
holders. Thus, RAND _is_ discriminatory. But patents are a reality, and
thus you _will_ have to make technical compromises in order to create
a standard that all can implement. I wish it were otherwise.

It's time for IETF to follow W3C's example and make positive steps toward
a process that admits all implementors without exception.

	Thanks

	Bruce Perens
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---

From: "Chuck Powers" <[email-masked]>
Date: Wed, 13 Nov 2002 13:08:57 -0600

Suffice it to say that there are many W3C members who feel that the W3C's new draft policy, once implemented, will manifest itself in exactly the way Brian describes - the WG's efforts will be greatly complicated, most (if not all) working groups will ultimately have to establish patent advisory groups to struggle with patent issues, and way too much time will be spent arguing about essential vs. non-essential, and other legal issues, at the expense of doing timely technical work. I think it is premature to dub the new W3C policy a success and model for others, since it hasn't actually taken effect, and the processes for implementing/enforcing it have yet to be defined. The devil is in the details...

As for saber-rattling, I think the impact to the W3C on membership will be felt once the new patent policy is adopted, and it will likely cause a reduction in the number of full W3C members, who the W3C can probably least afford to lose.

regards,

chuck

> -----Original Message-----
> From: [email-masked] [mailto:[email-masked]]On Behalf Of
> Bruce Perens
> Sent: Wednesday, November 13, 2002 8:59 AM
> To: [email-masked]; [email-masked]
> Subject: # Re: Alternate view of the philospophy and process for IPR
> inamodified RFC 2026
> 
> 
> Brian,
>

---

From: Keith Moore <[email-masked]>
Date: Wed, 13 Nov 2002 17:24:35 -0500

> Suffice it to say that there are many W3C members who feel that the W3C's new
> draft policy, once implemented, will manifest itself in exactly the way Brian
> describes - the WG's efforts will be greatly complicated, most (if not all)
> working groups will ultimately have to establish patent advisory groups to
> struggle with patent issues, and way too much time will be spent arguing about
> essential vs. non-essential, and other legal issues, at the expense of doing
> timely technical work. I think it is premature to dub the new W3C policy a
> success and model for others, since it hasn't actually taken effect, and the
> processes for implementing/enforcing it have yet to be defined. The devil is
> in the details...

W3C has certainly benefited from seeing our experience with our IPR policy.
Why don't we wait awhile and try to learn from their experience with theirs?

This could be considered a cooperative effort of sorts.  Both organizations
have interests in discouraging use of IPR to control standards implementation.

Keith

---

From: [email-masked] (Bruce Perens)
Date: Wed, 13 Nov 2002 21:16:55 -0800

Hi Chuck,

On Wed, Nov 13, 2002 at 01:08:57PM -0600, Chuck Powers wrote:
> Suffice it to say that there are many W3C members who feel that the W3C's
> new draft policy, once implemented, will manifest itself in exactly the
> way Brian describes - the WG's efforts will be greatly complicated,
> most (if not all) working groups will ultimately have to establish
> patent advisory groups to struggle with patent issues, and way too
> much time will be spent arguing about essential vs. non-essential, and
> other legal issues, at the expense of doing timely technical work.

I'm much more optimistic about the outcome. W3C members will not suddenly
become adversarial. They will cooperate in providing the proper patent
disclsoures. Standards will not contain features that are both significant
_and_ non-essential.

This is an argument that you and I had a year ago at W3C. Here we go
again, in front of a new audience.

There has been a fundamental change in the environment in which we create
standards - there are now many hungry and litigious producers of software
patents involved in the process. We must change our process to avoid,
as much as possible, the problems they create for our implementors.

Let's discuss what would happen if we are to produce standards as you
propose, rather than make the process easier through good policy and
(to a lesser extent) due diligence. If the WG eschews dealing
with the problem, the burden will be transferred to the implementors.
_Every_implementor_ will have to convene a legal group to struggle
through the licensing issues. Open Source implementors will really
have no choice but to refrain from implementing IETF standards. Small
proprietary implementors will do so at their peril, and at great legal
expense. Large companies like Moto won't have that much of a problem:
they'll be cross-licensed with the other big patent holders, and will be
collecting royalties from the little guys.

By refraining from dealing with the licensing problems, IETF would create
a filter that selects implementors of its standards based on who can
afford the excessive legal burden, or who is not subject to it due
to their size. This is hardly what we want for a standard.

Some of the patent holders will sincerely just want to make the best
technology. Others will carry out "patent farming": the deliberate
inclusion of their royalty-bearing technology in IETF standards, with
the goal of erecting a toll-booth on the Internet and collecting revenue
from all implementors of essential new standards.

And finally, there will be creators of submarine patents: patents that are
kept secret until a standard is in wide use. They may be eavesdroppers on
a WG, but will not be visible as participants. The creators of submarine
patents will try to hold our standards for ransom by claiming that they
infringe upon their patents. They will demand a royalty in arrears from all
existing implementors. We must create a policy that we will not be their
willing victims. We must withdraw recommendations when presented with a
submarine patent, to destroy the potential income for the patent holder.
Otherwise, we'll be a target for that sort of extortion over and over again.

	Thanks

	Bruce