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 Free Software.
“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.