FSF's Position on W3 Consortium “Royalty-Free” Patent Policy
Rewritten 1 June 2003
The Free Software Foundation, represented by Professor Moglen of
Columbia University Law School, has participated in the W3 Consortium
Patent Policy Working Group from November 2001 through the present.
The current W3C patent policy, which in most cases requires
“royalty-free” or “RF” patent licenses, is a
significant step in the direction of protecting the World Wide Web
from patent-encumbered standards. But it falls short because a
loophole allows conditions on these patent licenses that would
prohibit free software implementations of the standards.
The problem comes from the “field of use” restrictions
that patent holders are allowed to put in their royalty-free patent
licenses. Such restrictions say that you are allowed to practice the
patented idea, but only for implementing the standard precisely as
specified — not in any other way. Thus, if you change the code
to depart from the spec even slightly, the patent license no longer
protects you from against being sued for infringing the patent.
The W3C has policies to reject some kinds of “field of
use” restrictions. For instance, it won't allow a patent
license to be limited to a certain kind of software or a certain kind
of platform. (We were informed of this in 2012.) However, that still
allows other kinds of restrictions that can cause a problem.
One requirement for Free Software is that users have the freedom to
modify and redistribute it. But we can hardly consider that users
have freedom to publish modified versions of the program if, for a
part of the program's behavior, modification is prohibited. Thus,
these “field of use” restrictions would prevent
implementation of W3C standards as
“Field of use” restrictions are also legally incompatible
with section 7 of the GNU
General Public License (version 2), since it does not allow the user's
freedom to modify to be shrunk to zero in this way.
Many other Free Software licenses have no provisions equivalent to the
GPL's Section 7, but you can't solve the problem merely by using one
of those licenses. Section 7 is intended to prevent the imposition of
side restrictions (for instance, by patent licenses) which would deny
the freedoms that the GPL itself gives you. If the software license
does nothing to prevent this, you can find yourself in a situation
where the program's license appears to give you freedom, but this
freedom has been taken away by restrictions not stated there.
Freedom to modify software can always be limited by third-party
patents in ways that the software copyright license doesn't disclose.
This is why software patents are so
dangerous to software freedom.
The FSF plans to continue to participate in the implementation
process. We will try to convince patent-holders not to impose
“field of use” restrictions, and we encourage all those
who care about the right of Free Software developers to implement all
future web standards to do the same.