Hi Jeffrey,
My proposed Open Standards Principles are
completely consistent with the W3C patent policy, with the addition of
sublicensing. I invite you to compare them. I also invite you to compare it
with the IBM non-assert statement of a few weeks ago. Except that IBM’s
non-assert is only for open source implementations rather than to “everyone,”
it too is consistent. I think you’ll find that’s true also for most of the
licensing commitments for standards that we already think of as adequate for
our needs. So my definition isn’t very far off, I believe.
I want to separate out the discussion of
which specific definition of open standard is adopted from the notion that we
should have some such definition and we should enforce it. I responded
yesterday to Sam Ruby’s email with my proposed definition, but I wasn’t trying
to force it down everyone’s throat. There’s room for modification or even the
adoption of something different. The problem so far is that there hasn’t been a
proper venue for that discussion within standards organizations because of the
enormous shadow of RAND.
Regards,
/Larry
Lawrence Rosen
Rosenlaw & Einschlag, technology law
offices (www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA
95482
707-485-1242 ● fax:
707-485-1243
Author of “Open Source Licensing: Software
Freedom
and Intellectual Property Law” (Prentice Hall 2004)
From: Jeffrey Thompson
[mailto:[EMAIL PROTECTED]
Sent: Friday, February 25, 2005
6:26 AM
To: [EMAIL PROTECTED]
Cc: [EMAIL PROTECTED]
Subject: RE: patent licenses on
OASIS standards
"Lawrence Rosen"
<[EMAIL PROTECTED]> wrote on 02/24/2005 09:26:31 PM:
> Sam Ruby asked:
> > Do we have a formal definition that we can
employ for the term "open
> > standards"?
>
> Here's my try at a definition of "open
standards" in the form of five Open
> Standards Principles. These were first proposed
at the conference of the
> Open Standards Alliance
in Phoenix last
year. John Terpstra is organizing
> that OSA activity. I welcome your feedback on
these principles.
>
>
> Open Standards Principles
>
> 1.
Everyone is free to copy and distribute the official
>
specification
for an open standard under an open source
>
license.
>
> 2.
Everyone is free to make or use embodiments of an open
>
standard
under unconditional licenses to patent claims
>
necessary
to practice that standard.
>
> 3.
Everyone is free to distribute externally, sell, offer
>
for
sale, have made or import embodiments of an open
>
standard
under patent licenses that may be conditioned
>
only
on reciprocal licenses to any of licensees’ patent
>
claims
necessary to practice that standard.
>
> 4.
A patent license for an open standard may be terminated
>
as
to any licensee who sues the licensor or any other
>
licensee
for infringement of patent claims necessary to
>
practice
that standard.
>
> 5.
All patent licenses necessary to practice an open standard
>
are
worldwide, royalty-free, non-exclusive, perpetual and
>
sublicenseable.
>
>
> Lawrence
Rosen
> Rosenlaw & Einschlag, technology law
offices (www.rosenlaw.com)
> 3001
King Ranch Road, Ukiah, CA 95482
> 707-485-1242 ●
fax:
707-485-1243
> Author of “Open
Source Licensing: Software Freedom
>
and
Intellectual Property Law” (Prentice Hall 2004)
>
>
Larry,
I wouldn't propose that we adopt a definition of open standards that excludes
almost all existing standards, even those which everyone would agree that, in
fact, are free for implementation by open source. How many existing standards
bodies are publishing their standards under open source licenses? None
of the W3C standards developed under their new RF policy would seem to satisfy
your definition. Is that intentional?
There are a number of other "draft" definitions floating around. Bruce
Perens' is interesting and is a good start, but is not the only definition. The
EU is working on a European Interoperability Framework for IT and are in the
process of trying to define what "open standards" they are going to
recommend that EU governments adopt. Their definition is
interesting as well:
"The following are the minimal characteristics
that a specification and its attendant documents must have in order to be
considered an open standard:
"1. The standard is adopted
and will be maintained by a not-for-profit organisation, and its ongoing
development occurs on the basis of an open decision-making procedure available
to all interested parties (consensus or majority decision etc.)
"2. The standard has been
published and the standard specification document is available either freely or
at a nominal charge. It must be permissible to all to copy,
distribute and use it for no fee or at a nominal fee.
"3. The intellectual property
- i.e., patents possibly present - of (parts of) the standard is made
irrevocably available on a royalty-free basis.
"4. There are no constraints
on the re-use of the standard."
There has been a lot of public comment on the EU
proposal.
I think that if we are going to work on a
definition, it needs to have a practical effect. That
is, it needs to distinguish between those standards that open source projects
aren't able to implement (potentially because of royalties on necessary patent
claims) and those standards that open source projects can implement. Creating
a definition that puts the majority of standards which can clearly be
implemented by open source projects on the "wrong" side of the line
doesn't provide anyone meaningful guidance.
Jeff
Staff
Counsel, IBM Corporation (914)766-1757 (tie)8-826 (fax) -8160
(notes) [EMAIL PROTECTED] (internet) [EMAIL PROTECTED] (home) [EMAIL PROTECTED]
(web) http://www.beff.net/
