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RAND and Open Standards
Whither the Internet?
The sleeper in the IT industry last year was a decision by the World Wide Web Consortium (W3C) that would have allowed companies involved in the development of standards for the Internet to charge so-called Reasonable And Non-Discriminatory (RAND) fees for usage of standards utilizing technology for which they held patents. While this rule sat without comment for almost two months, when it did become widely known it set off a storm of negative publicity for the W3C and for some of its members. This article explains what RAND is and why it is important to anyone dealing with Internet. 
For many the World Wide Web Consortium (W3C) is one of the shining examples in the history of technology. Since its founding by the now-legendary Tim Berners Lee in 1994 the W3C has shepherded the growth of the Internet from the stomping ground of computer geeks to a major economic force around the world. It can be argued that without the W3C (or something like it) today's social and economic landscape would be radically different. Social commentators have made much of the Web's supposed democratizing influence around the world as access barriers to information and ideas have been swept away, and examples abound in which society's less fortunate have made use of the Web to achieve tasks that would once have been beyond their reach. Part of the reason for this is that the Web was built on open standards which could be accessed equally well by both large companies and individuals, leading to vigorous competition and innovation.
One of W3C's long-term goals (see http://www.w3.org/Consortium/#goals) is "to make the Web accessible to all by promoting technologies that take into account the vast differences in culture, education, ability, material resources, and physical limitations of users on all continents." The achievent of this goal requires careful consideration be made of the economic realities around the world, and the W3C met this challenge in part by promoting only open "royalty-free" (RF) standards, standards which are freely available to all users without any fees or other payments. (Obviously the RF model did not forbid developers from making money by developing products which implemented W3C standards; rather it did not allow any one to make money from the standards themselves.) The RF model worked well for seven years, but in 2000 the W3C began to feel some of its limitations and began a process to provide an alternate model for standards building called "Reasonable And Non-Discriminatory", or RAND1 for short. (RAND is a well established concept in the standards world, but this would be its first appearance in the W3C.) RAND would allow companies and individuals holding patents utilized in W3C standards to charge licensing fees for use of standards which make use of their patents, provided the fees are:
Under the proposed rule companies opting to exercise their RAND rights would have been able to start charging patent licensing fees beginning in February 2002 (this implementation has, however, been at the very least delayed, see below). The proposal would also allow companies to propose their own patented technologies as standards, knowing that these standards would be revenue-generating for them.
The W3C claims that this policy is needed in order to prevent derailing of the standards process by patent claims and the accompanying legal issues. Detractors of RAND claim that the issue is more about the W3C selling out to corporate interests and attempting to stifle the free-software movement. (It is very important to note, however, that the RAND proposal would not have done away with the RF model, but rather would have allowed some standards to be created under RAND if a compelling reason for RAND terms were demonstrated.) The proposed policy change was written by a Working Group consisting of a number of the larger corporate members of W3C, including Microsoft, IBM, Apple and HP. (According to industry rumor the prime mover behind all of this was IBM, although not all divisions of IBM were happy about the proposal, see http://www.theregister.co.uk/content/archive/22052.html) The initiative began in October 1999 and the RAND proposal was released for public comment as a Working Draft on August 16, 2001, with a close to public comment set for September 30 (an unusually short period for comment). The RAND proposal did not follow the normal review process that other W3C policies and standards go through, a fact that has come back to haunt RAND supporters as people have finally realized what itwas about. According to the W3C's original public document:
"As we have begun to use portions of the policy in the day-to-day operations of W3C, we plan to skip the Candidate Recommendation and move directly to an Advisory Committee Review of a Proposed Recommendation draft. The Patent Policy Working Group unanimously agrees that this document should advance to Last Call". This change in procedure, however innocent the reasoning behind it may have in fact been, was later seen as an end-run on the normal public review process and an attempt by large corporate members in W3C to put a policy into effect without the public's awareness. The W3C says it announced the Working Draft through its normal channels, but no one seems to have picked up on the draft or its implications at the time it was released. For a month and a half the formal (e-mail) public feedback mechanism of the W3C received only occasional SPAM and a lone query from a software developer in Germany who was concerned about what this policy could mean for the software industry. Then, on September 29 someone got the word out, and the W3C was literally flooded with public comments. Whereas over one month had gone by with only one comment, between September 29 and 30, almost 750 messages were received, almost all in extreme opposition to the policy, forcing the extension of the public review by two weeks to accommodate the number of comments, and to allow them time to digest the issues and formulate a response. In the first two working days in October almost 700 messages were received, again, almost all of them vehemently opposed to the policy change. The W3C was forced to extend the period of public commentary to October 11 and appointed some Open Source community representatives (Bruce Perens, Eben Moglen and Larry Rosen) to the working group, asking the working group to take into account public concern and provide a response to this concern. Rumor has it that since that time a number of RAND's corporate supporters, perhaps burned by the intense negative publicity, have grown a little chary of supporting RAND, at least in public. (Since late October the W3C has made no official pronouncements regarding the status of the RAND proposal, so rumor is all that is available at this point. A new RAND proposal has been promised for public comment, but no timeline has been announced.) Obviously people on both sides of the issue care ardently about it and both sides claim that their stances are for the best of the web. So where is the truth? As is often the case, there's a bit on both sides. Arguments for RANDAccording to the W3C, the proposed policy change is needed because companies with blocking patents on W3C standards have no incentive at present to release their patent rights unless there is some mechanism in place whereby they can receive revenue for their patents.
The W3C says that RAND is also important as it seeks to join with standards bodies in other industries where such policies are standard—if such a policy is not in place W3C claims that working in fields such as wireless communications will be much more difficult. They also claim that RAND will allow Working Groups to work on developing the best possible standards without having to worry about intellectual property rights and blocking patents, because members would agree in advance to disclose any blocking patents and agree to abide by RAND licensing restrictions. The W3C says that while no specific instances where RAND would be necessary have yet occurred, they wanted to be prepared in advance for when this does become an issue. In December The Register reported on one such instance in which Apple controlled a patent on a particular technology used in its new Mac OSX, technology which developers of the Scalable Vector Graphics (SVG) format would also like to use (and which is already used in two other standards). Apple, however, has declined to grant RF access to this technology, so standards developers have been forced to engineer around this technology, adding time and cost to the development of the standard. RAND is used in many standards bodies and is a well-established way of dealing with Intellectual Property rights in standards processes. Supporters of RAND point to this and argue that because RAND has worked so well elsewhere it would work fine with Internet-related software. RAND supporters emphasize the fact that most standards work in the W3C will continue to be RF, and that only a minority would be RAND, with "core" technologies remaining RF. They emphasize that the heart and soul of the web would remain RF. Arguments against RANDThe opposition to RAND contains a who's who list of people in the open source software community 2. In addition a cadre of concerned individuals has added its two bits as well. Unfortunately many opponents' responses were characterized by hysteria and misunderstanding. Beyond the angry rhetoric though there were some real concerns about RAND that its proponenets did not foresee. Many of these are dealt with in an earlier article available on the LISA website at http://www.lisa.org/2001/rand/rand.html, so this article will only deal with the only one of these, plus a second that has since come to prominence (namely the real question of what is "core" on the Internet. RAND discriminates against free softwareRAND supporters point out that RAND licensing agreements are common in most standards bodies and that they already are common for computer hardware standards. Thus if a manufacturer wants to conform to certain hardware standards, a fee must be paid to use those standards, a cost included in the cost of that hardware. While this certainly may be the case, the underlying assumption is that a standards implementer will have some method of recovering revenue for a product, but this is inherently contrary to the model used in the free software movement. As a posting on the W3C's website on October 3rd puts it. This proposal effectively prevents the free software movement from continuing to have an effective part in Web development. Because no fees are collected for the distribution of free software, and the principle of free software requires that it should be capable of being passed on indefinitely, there is no means of tracking all the users of any free software module, let alone of charging them license fees. No level of license fees are 'reasonable and non-discriminatory' with respect to free software; on the contrary, any license fee automatically discriminates against all free software projects3. The RAND proposal does seem to assume a revenue-producing business model behind software development. In the absence of a revenue model there is no apparent way in which free software developers could pay licensing fees. Free software has already had to abandon central features (such as GIF image or LZW image compression support) because of licensing fees being imposed on these standards after they had been used by free softwqare for some time, so the critics of RAND can point to actual examples where something akin to RAND has crippled developers of free software. The W3C's original proposal does not mention open-source or free software anywhere in the document, and this is an area that appears not to have been considered in the Working Group to any real extent (at least as far as can be determined in the proposal). The W3C's initial public response to criticism did not address this point either, but the subsequent appointing of open source advocates to the working group as invited experts show that the W3C is taking the issue seriously. This issue is a major one, involving not just the W3C, but questions of patent rights in general and how non-revenue models can co-exist in a revenue-driven business culture. The "core" architecture of the WebRAND supporters maintain that RAND licensing would likely be rare and only applied to non-core features of the web. This raises the question of how "core" is to be defined, and how to deal with changes over time in use of the web. Web elements such as streaming media that are now considered by many to be central to the Web were hardly "core" features of most users' web experience just a few years ago. Would streaming media now be a core feature had a cost structure been imposed on it? It is hard to say, but a cost structure certainly would have an impact on the installed user base of streaming media players. On what basis would a determination of what is core and what is not be made? Especially in cases of forward-looking standards which are made to standardize a technology before wide-spread implementation, how could one determine whether or not the technology would become a core web technology? If a standard were RAND and then became core, where would this leave the free software community in terms of implementation? The issue of core web standards is one that gets fuzzier the longer and harder one looks at it. Given that cases where lack of RAND licensing in the W3C has caused problems are already starting to appear, the desire of the W3C for some sort of RAND is understandable, and perhaps inevitable. On the other hand the concerns of the free software community must be dealt with. (In addition, there are some serious legal questions involved since only a few countries, among them the U.S., even recognize software patents, raising the question of the legal validity of RAND around the world. RAND and localizationLISA as an organization is dedicated to the RF model for standards. TMX and TBX from LISA's OSCAR group are both RF, and OSCAR was founded with a commitment that all of its standards be publicly available to anyone wanting to implement them. In addition the EU-funded SALT endeavor (for terminology exchange), which is closely related to TBX, has resulted in a proposed RF standard and freeware software utilities needed to implement it. Because of the potential impact across the IT sector and in any arena that deals with the Web, the W3C's decisions could have profound long-term impact on localization. In addition the imposition of a cost structure on standards would raise the cost of development to support these standards and would raise the barrier to entry for tools developers seeking to add filters and other standards-based functionality for localization tools. While it is impossible to say what this cost would be, an RF model for the Web would certainly not entail the same cost as the RAND model. ConclusionAt present it is hard to say what sort of RAND policy will be enacted. The W3C seems committed to enacting one, but the details are not settled yet and, until the W3C makes another public announcement, it is impossible to say what the W3C envisions. LISA would like to encourage its members to become aware of the issues and to take a stand, where appropriate, in clear and reasonably-argued terms. This issue will have an impact of some kind on almost all companies in LISA and the LISA Administration feels that LISA members need to make themselves heard. Although the W3C is not now accepting public comment on the proposal, many of LISA's members are in positions to make suggestions and have an impact. References1 The official W3C definition of RAND is that a license:
2 A list of these individuals is at http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Oct/0539.html 3 http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Oct/0539.html Further informationFor more information, please visit the following sites:
(arle@lisa.org) is a project manager with LISA and an emeritus member of the Brigham Young University Translation Research Group (http://www.ttt.org). |
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  8-12 December 2008 |
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