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The real force behind the Web, many software developers argue, is that it’s free. What makes the Web truly worldwide, after all, is its interoperability-you can call up virtually any Web page on virtually any device connected to the Internet-and that depends on free software. But now members of the World Wide Web Consortium, the MIT-based industry forum devoted to promoting interoperability, are locked in a debate with outside critics over whether the royalty-free tradition can continue in a world where many companies hold patents on-and would like to start profiting from-the software needed as the backbone for next-generation Web standards.

Last August, the consortium’s Patent Policy Working Group proposed a set of procedure changes that would, for the first time in the consortium’s history, create an official structure for companies to collect licensing fees on technologies incorporated into Web standards. Such fees would typically be paid by companies that sell commercial software or services based on the standards, but they could be passed along to the average Web user in the form of higher prices or usage charges. The working group said the policy was needed to encourage companies to disclose relevant patents early in the standards-making process. But so many outraged e-mails poured in from software developers concerned about the policy’s implications for the openness of the Web that the working group had to extend the period for public comment.

Now the group is working to find a compromise that will give patent holders incentives to participate in the standards-making process while also appeasing independent developers and open-source-
software advocates, whose faith in the World Wide Web Consortium is crucial to the adoption of its standards. “I can’t think of any more fundamental question that I’ve seen in my time at W3C,” says Daniel J. Weitzner, director of the consortium’s Technology and Society domain and chair of the working group.

From the Web’s beginnings in the early 1990s, the designers of basic standards such as the hypertext transfer protocol, which manages communication between the servers where Web pages are stored and the browsers where they’re displayed, have declined to patent or collect royalties on their underlying code-freeing developers of newer Web technologies from fear of legal trouble or burdensome fees. The tradition continued within the World Wide Web Consortium, whose working groups develop and recommend common Web standards that cover areas such as privacy, accessibility and streaming multimedia. The groups have never had a formal policy requiring members to provide royalty-free access to patented technologies that get built into those standards, relying instead on custom.

But that custom began to break down about three years ago, just before the consortium was set to release a final draft of its system for standardizing the way browsers exchange and display information about various Web sites’ privacy practices. In January 1999, the Seattle software company Intermind (now called OneName) told the consortium that it had won a patent covering the same technological ground and proposed collecting a one percent royalty from developers who implemented the privacy software in commercial products such as browsers. The consortium eventually concluded that Intermind’s patent did not overlap with the new privacy standard, but it lost nearly a year in the process. The experience left its members determined to do something to avoid future patent obstacles.

Under the framework proposed last August by Weitzner’s group, companies that belong to the consortium must disclose up-front all patents relevant to standards being developed by the working groups. But that’s not all: participants who submit patented technologies for inclusion in common standards must also commit to granting a license on those patents, on either royalty-free or “reasonable and nondiscriminatory” terms. (Under the latter terms, which are commonly written into standards for other technologies such as wireless communications, patent holders must offer licenses to all implementers worldwide for a reasonable fee.) The consortium received more than 2,400 public comments on the policy, the majority opposing the introduction of fee-based licensing.

The policy would have a major practical impact on the evolution of emerging standards such as VoiceXML, which is intended to allow hands-free, eyes-free access to the Web via telephones and other devices. Some companies that hold patents on technologies being considered for inclusion in the VoiceXML standard have offered them on a royalty-free basis, says Weitzner, but others have offered them only on a reasonable and nondiscriminatory basis. “That’s a place where we’re going to have to make a decision: is it okay for VoiceXML to require a license fee, or should we try to do a royalty-free standard there?”

The consortium does need some kind of policy to help it through the increasingly dense minefield of Web-related patents, acknowledges Steven Champeon of the Web Standards Project, a group that lobbies browser makers to provide uniform support for the World Wide Web Consortium’s standards. But gaining patent holders’ cooperation by allowing them to charge royalties on certain technologies is a slippery slope that could lead to a pay-as-you-go Web, he warns. “It’s perfectly possible for the W3C to adopt a policy that requires their members to disclose any patent, but there’s no reason why they must adopt both the defensive patent disclosure policy and the ill-considered [fee-based] scheme at the same time,” Champeon says.

Other critics say any kind of fee-based licensing is incompatible with the historically open nature of the Web. “The very best work is going to be done by people who are engaged in learning-who pick up the best stuff there is and make it a little better-and not by companies who are inventing proprietary and closed software,” says Eben Moglen, a Columbia Law School professor and general counsel for the Free Software Foundation who recently joined the working group as an invited expert.

But advocates of the draft policy such as IBM, which also has a representative on the working group, say that some of today’s most promising Web technologies are coming from the private sector, and that uncertainty over patents is discouraging full corporate participation in the standards process. “This [licensing] approach encourages participants to contribute more of their patented technology, resulting in the adoption of the best technical solutions,” said Gerald Lane, IBM’s program director of corporate standards practices, in a public comment.

Other high-tech leaders argue that royalties on Web software are needed because developers, like everyone else, like to be paid for their work. “People want personalized content, anywhere, on demand, and a lot of technology is required to do that,” says Michael Miron, CEO of ContentGuard, a company that licenses digital rights management systems. “But if there is no remuneration for R&D, the only people who would enter this market are fabulously wealthy people or hermits who have no need of income.”

Stakeholders will soon have another opportunity to comment on the policy, a new draft of which is due sometime this spring. Weitzner says the draft will respond to many of the concerns raised by critics. “The level of anger and concern seemed to come out of people’s sense that W3C is important to them,” he says, “and we are going to do everything we can to maintain that trust.”

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