Return-Path: Delivered-To: apmail-legal-discuss-archive@www.apache.org Received: (qmail 92883 invoked from network); 25 Feb 2005 16:44:50 -0000 Received: from hermes.apache.org (HELO mail.apache.org) (209.237.227.199) by minotaur-2.apache.org with SMTP; 25 Feb 2005 16:44:50 -0000 Received: (qmail 19005 invoked by uid 500); 25 Feb 2005 16:44:47 -0000 Delivered-To: apmail-legal-discuss-archive@apache.org Received: (qmail 18860 invoked by uid 500); 25 Feb 2005 16:44:46 -0000 Mailing-List: contact legal-discuss-help@apache.org; run by ezmlm Precedence: bulk List-Help: List-Unsubscribe: List-Post: List-Id: Delivered-To: mailing list legal-discuss@apache.org Received: (qmail 18845 invoked by uid 99); 25 Feb 2005 16:44:46 -0000 X-ASF-Spam-Status: No, hits=0.1 required=10.0 tests=HTML_MESSAGE,HTML_NONELEMENT_20_30 X-Spam-Check-By: apache.org Received-SPF: neutral (hermes.apache.org: local policy) Received: from mail26a.sbc-webhosting.com (HELO mail26a.sbc-webhosting.com) (216.173.237.164) by apache.org (qpsmtpd/0.28) with SMTP; Fri, 25 Feb 2005 08:44:44 -0800 Received: from www.rosenlaw.com (216.173.242.124) by mail26a.sbc-webhosting.com (RS ver 1.0.95vs) with SMTP id 1-0551079876; Fri, 25 Feb 2005 11:44:39 -0500 (EST) Reply-To: From: "Lawrence Rosen" To: "'Jeffrey Thompson'" Cc: Subject: RE: patent licenses on OASIS standards Date: Fri, 25 Feb 2005 08:44:31 -0800 Organization: Rosenlaw & Einschlag MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_0622_01C51B16.39875C90" X-Mailer: Microsoft Office Outlook, Build 11.0.6353 X-MIMEOLE: Produced By Microsoft MimeOLE V6.00.2900.2180 Thread-Index: AcUbReWtswWX43TmTTarbsiCUwg0qwAEJ2Qw In-Reply-To: Message-ID: <20050225114439.GA55107@mail26a.sbc-webhosting.com> X-Loop-Detect: 1 X-Virus-Checked: Checked X-Spam-Rating: minotaur-2.apache.org 1.6.2 0/1000/N ------=_NextPart_000_0622_01C51B16.39875C90 Content-Type: text/plain; charset="iso-2022-jp" Content-Transfer-Encoding: 7bit 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:jthom@us.ibm.com] Sent: Friday, February 25, 2005 6:26 AM To: lrosen@rosenlaw.com Cc: legal-discuss@apache.org Subject: RE: patent licenses on OASIS standards "Lawrence Rosen" 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) jthom@ibmus (internet) jthom@us.ibm.com (home) jeff@beff.net (web) http://www.beff.net/ ------=_NextPart_000_0622_01C51B16.39875C90 Content-Type: text/html; charset="iso-2022-jp" Content-Transfer-Encoding: quoted-printable

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=1B$B!G=1B(Bs non-assert is only for open source implementations rather than to = =1B$B!H=1B(Beveryone,=1B$B!I=1B(B it too is consistent. I think you=1B$B!G=1B(Bll find that=1B$B!G=1B(Bs = true also for most of the licensing commitments for standards that we already think of as adequate = for our needs. So my definition isn=1B$B!G=1B(Bt 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=1B$B!G=1B(Bs email with my proposed definition, = but I wasn=1B$B!G=1B(Bt trying to force it down everyone=1B$B!G=1B(Bs throat. There=1B$B!G=1B(Bs room = for modification or even the adoption of something different. The problem so far is that there = hasn=1B$B!G=1B(Bt 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)<= /font>

3001 King Ranch Road, Ukiah, CA 95482

707-485-1242  = =1B$B!|=1B(B  fax: 707-485-1243

Author of =1B$B!H=1B(BOpen Source = Licensing: Software Freedom

      =          and Intellectual Property Law=1B$B!I=1B(B (Prentice Hall = 2004)

 

From: = Jeffrey Thompson [mailto:jthom@us.ibm.com]
Sent: Friday, February = 25, 2005 6:26 AM
To: = lrosen@rosenlaw.com
Cc: = legal-discuss@apache.org
Subject: RE: patent = licenses on OASIS standards

 


"Lawrence Rosen" <lrosen@rosenlaw.com> 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=1B$B!G=1B(B = patent
>    claims necessary to practice that standard.
>
> 4.   A patent license for an open standard may be terminated
>    as to any licensee who sues the licensor or any other
>    licensee for infringement of patent claims necessary to
>    practice that standard.
>
> 5.   All patent licenses necessary to practice an open standard
>    are worldwide, royalty-free, non-exclusive, perpetual and
>    sublicenseable.
>
>
> Lawrence Rosen
> Rosenlaw & Einschlag, technology = law offices (www.rosenlaw.com)
> 3001 King Ranch Road, Ukiah, = CA 95482
> 707-485-1242 =  =1B$B!|=1B(B  fax: 707-485-1243
> Author of = =1B$B!H=1B(BOpen Source Licensing: Software Freedom
>                and Intellectual Property Law=1B$B!I=1B(B (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) jthom@ibmus  (internet) jthom@us.ibm.com (home) = jeff@beff.net
(web) http://www.beff.net/

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