New patent policy protects World Wide Web

by Michael Tiemann
Red Hat Chief Technology Officer

The World Wide Web Consortium (W3C) has published its long-awaited Patent Policy. This ground-breaking policy delivers two immediate benefits: (1) a safeguarding of the integrity of W3C standards from covert or overt control via patent claims, and (2) an assurance to the open source community(*) that W3C standards are safe to implement. By ratifying this policy (as opposed to the one it had proposed two years ago), the W3C has advanced both its own mission, to promote the widest adoption of Web standards, as well as improving the potential for economic benefit of all those who depend on such standards.

This great goal was not easily achieved. In the dog days of August 2001, when much of the world was on vacation, the W3C quietly published a new proposed patent policy that would permit W3C standards to include software patents, provided those patents were licensed under RAND (so-called "reasonable and non-discriminatory") terms. After half of the short six-week comment period had elapsed, only one comment had been received. The open source community was close to defaulting on the most important issue after freedom of source: the ability to freely interoperate via the Web.

The shocking events of 11 September 2001 took all attention away from this subject until 24 September, the day when the W3C received the second, then the third, then more than 700 additional comments (almost uniformly negative) before 30 September, the official end of the public comment period. Slashdot broke the story on 30 September, referencing a pithy quote from Alan Cox, which said, among other things:

"A patent-encumbered web threatens the very freedom of intellectual debate, allowing only large companies and big media houses to present information in certain ways. Imagine where the web would be now if only large companies were able to use image files."

Indeed, the short public comment period, given no extension in light of the tragic events of 11 September, created outrage and suspicion about the motives, not to mention the very future and the relevance of the W3C.

In October 2001, Arle Lommel published an excellent brief articulating why allowing RAND licensing to apply to W3C standards would be a disaster:

  1. RAND discriminates against free software
  2. RAND erects barriers to Internet access
  3. Only a few countries recognize software patents
  4. RAND puts smaller developers at the mercy of larger companies
  5. RAND would create a climate of fear
  6. Developers might not use patent-encumbered standards

Though the W3C had been completely unprepared for this firestorm of controversy, when it broke, the W3C responded in good faith and the real arguments began. In some sense, the W3C had become a victim of its own success: what had once been the domain of developers building the Web had become colonized by large-company flacks who were intent on privatizing and profiting from this great public resource.

On 31 October 2001, The Register reported that Tim Berners-Lee, the creator of the World Wide Web, addressed the Patent Policy Working Group (PPWG) of the W3C and warned "If RAND licensing is used as a tool, it will inevitably lead to the formation of a competing, free web standards organization. I am distressed that some members of the working group still fail to understand the mood of the public. I do not find the presented document at all reassuring."

The Register's typically insightful analysis recognized the situation as a significant test of the open source community: would they have the stomach and the spine to mobilize against RAND and protect the freedoms they worked so hard to achieve, or would they surrender those freedoms to the lawyers who would rent them out in some "reasonable" way? Now we have an answer, and now everybody wins. Big corporate interests actually won because the open source community helped protect the most valuable resource created in the 20th century: the World Wide Web. The open source community clearly won, because we get to keep the standards we helped to create, and more importantly, we get to share them freely. And finally, the W3C won, not only respectability and relevance, but it won back the soul it had very nearly lost.

But what if this decision had gone the other way? In that scenario, I believe we would be witnessing the gradual, then rapid foreclosure and forfeiture of the Web itself. Companies with monopoly power could easily extend their monopolies, via patents, to Web standards. Governments, many of which already have legislation preferring open standards (without necessarily stipulating open source), could be hoodwinked into adopting standards that included royalty-bearing licenses. Such licenses would foreclose competition and the notion of open standards would become corrupt(**). Open source would lose relevance on the surface as W3C media formats, file formats, communication protocols, and other key aspects of interoperability required licenses incompatible with the Open Source Definition. A deeper threat would come from grants of licenses bundled with platform technologies ("hey, if you buy my OS, you don't need a media license, that's bundled! And I'll give you a discount if you run my OS exclusively.").

This was but one battle, and this is but one victory. And while the credit will go to the open source community, the victory was made possible by individuals within that community, especially the tireless efforts of Larry Rosen, from the Open Source Initiative, Eben Moglen, from the Free Software Foundation, and Bruce Perens, representing Software in the Public Interest. Their personal commitment, and the commitment of the organizations they represent, help drive the consensus that has now been reached.

Seeing that the open source community could recover the notion of truly open standards that helped give birth to the World Wide Web, we should be encouraged that we can win back the freedoms that are under attack in other arenas, threatened by other organizations, and enjoined by other legislation. Paraphrasing Linus's law, with enough voices, enough votes, and enough participation, all proprietary control is feeble. We just need to make the commitment and do the work.

First they ignore you.
Then they laugh at you.
Then they fight you.
Then you win.

-- Mahatma Gandhi

We continue to face challenges on many other fronts. What can you do to help?

(*) Richard Stallman has recognized that there is one open source community and two movements (open source and free software). For editorial reasons, it is easier to write about the open source community as including the free software community while recognizing that there are two movements within this community.

(**) In Civil Action No. 98-1233 (CKK), State of New York el al v. Microsoft Corporation, the litigating States proposed a remedy of Adherence to Industry Standards. (See letter L, remedy number 16, of Exhibit B. This proposed remedy would lose relevance if the W3C, as a standards-setting body, shifted the locus of royalty from proprietary products to standards for interoperability.