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FSF's Position on W3 Consortium "Royalty-Free" Patent Policy

Rewritten 1 June 2003

Our Position

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 specificed--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.

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, 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.

For example, suppose the W3 obtains patent licenses for a standard describing certain functionality in a web server. One of the things you should be able to do with a Free Software implementation of that standard is to merge it into a web browser or a non-interactive web client, so as to provide the same functionality there. However, in this new context, the code would not be implementing the specific standard for which the patent was licensed, so the restriction that the patent is licensed only "in order to implement the standard" would not be met. Even reusing the exact same code in the new context would face possible claims of patent infringement.

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 W3C, by allowing members of W3C working groups that help to frame standards to impose restrictions on the modifiability of code that implements those standards, is missing an opportunity to help solve that problem, and may in specific cases even be helping to make the problem worse.

By allowing "field of use" restrictions, the proposed policy falls short of protecting the rights of the Free Software community to fully participate in the implementation and extension of web standards. The goal of our participation in the policy making process at W3C, to make sure web standards can be implemented in free software, has only been partially achieved.

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.

Interaction with the GPL

The problem of "field of use" restrictions comes from Section 3 of the W3C's proposed patent policy. Item 3 of that section says that the royalty-free license "may be limited to implementations of the Recommendation, and to what is required by the Recommendation". Here's how such "field of use" restrictions interact with the GNU GPL.

The problem is the interaction of such a "field of use" restriction with Section 7 of GPL. Under Section 7, the "field of use" restriction is a "conditions are imposed on you [the distributor of GPL'ed software] that contradict the conditions of this License". The "conditions of this license" require, for example, that those receiving distributions of GPL'ed software have the right to run the program for any purpose (Section 0), the right to modify it for any purpose (Section 2), etc. Any of these "purposes" could easily practice the teachings of the patent beyond what the "field of use" restriction allows.

Here's a detailed step-by-step example that shows how this problem could play out:

1. Programmer P downloads the Konqueror web browser, receiving it under terms of GPL.
2. P learns of a new web standard that requires exercising a technique for parsing URLs that is patented by Corporation C. C has licensed the patent under an RF, non-exclusive license, but with a "field of use" restriction that says the license can be used to "implement the standard". The standard, as it turns out, covers only what browsers must do with URLs, and says nothing about the server side or clients that aren't user browsers.
3. P implements this technique in Konqueror, and seeks to redistribute the modified version on his website so that other users can benefit from Konqueror now complying with the standard. If he does, he is bound by the GPL under copyright law, because he is redistributing a modified version.
4. However, he knows full well of a condition on that code that contradicts the GPL (violating Section 7) -- namely, he knows that C's patent license prohibits folks from taking his URL parsing code and putting it into, say, a search engine. Therefore, under GPL Section 7, he is prohibited from redistribution.
5. You might think that P can simply assign his copyright to the existing copyright holder of Konqueror and let distribution happen from that source. They could distribute under the GPL, but they would be granting a self-contradicting license. Nothing prohibits someone from distributing copyrighted works under licenses that make no sense and are self-contradictory, but that is not free software. Those who receive distribution of those works are stuck, and can't undertake further distribution or modification themselves.

Regardless of who makes the changes, the result either shuts down distribution or forces the original developer to abandon the GPL (and the program won't really be free even though its license looks free). Both outcomes are very unfortunate. This is why we urge the community to pressure patentholders not to use "field of use" restrictions.