Crafting a special kind of license for a very special standard.

[Grant Robertson]

Hello,

 

None of you know me. My name is Grant Robertson. I am not a developer, open-source or otherwise. However, I have been a network manager for quite some time and am currently a "very late returning" computer science student. I have invented a standard for marking up educational material and a system for distributing this material throughout the world to anything from desktops to handhelds and even personal music players. I believe this standard will revolution education throughout the world. In order to guarantee that the world gets to use the standard, it must be protected by a strong and thorough license agreement.

 

I need your help. I have never invented a standard before. I have never written a license agreement before. Before last week I had never created a web site before. But I have now created a web site describing the goals of the standard and my goals for the license agreement. I would really appreciate it if some of you could take a look at the site and provide feedback to me as to the best direction to take in order to best protect this standard for the good of all.

 

I understand that many of you will decline to go to a web site posted by a completely unknown person. This is the exact advice I have given my customers and friends for years. Hopefully a few of you will be brave enough to take a look and vouch for my honesty to the others.

 

I really want the assistance from as many in the open-source community as possible so that I can guarantee that the license will both protect the standard and promote the development of a new family of open-source software. The home page can be found at http://demml.org and the page about licensing issues can be found at http://demml.org/standard/license/. I am currently using a free hosting service which inserts popup-ads. Simply disable JavaScript before going to the site and you will never have to look at the darn ads.

 

Again, I appreciate all the helpful advice I can get.

 

Thank you

Grant S. Robertson

[Matthew Flaschen]

Grant Robertson wrote:
> I really want the assistance from as many in the open-source community
> as possible so that I can guarantee that the license will both protect
> the standard and promote the development of a new family of
> open-source software. The home page can be found at http://demml.org
> and the page about licensing issues can be found at
> http://demml.org/standard/license/.

IANAL, but I think it is meaningless to specify a license for a standard
itself.  The standard document is copyrighted, and that can have a
license.  Also, techniques required by the standard can be patented, and
those too may have licenses.  You should understand that the document
copyright can not be used to stop undesired third-party implementations.
 Someone with a copyright license for the document can describe it in
their own words, then distribute the resulting document freely; facts
can not be copyrighted.  Only patents can control implementation.  Since
you do not seem to intend to patent any required techniques, I fail to
see how you can control implementations.  Publishing prior art can stop
others from patenting your ideas, but it does absolutely nothing to
prevent unauthorized implementations.

Your licensing scheme is also clearly not open in the way Rosen
described.  Charging fees for commercial use violates his second
principle, "Open standards should be available to everyone on
royalty-free terms."  There are other problems with your terms (like
requiring beta releases of implementing software to be hidden), but that
alone makes your standard impossible to implement with open source
(which /can/ be commercial).  You also say you intend to submit your
standard to W3C, which I believe requires standards can be implemented
royalty-free
(http://www.w3.org/Consortium/Patent-Policy-20040205/#sec-Licensing).
Then again, you don't seem to have any patents, so it's a moot point...

Matthew Flaschen

[Grant Robertson]

> From: Matthew Flaschen

> You should understand that the document copyright can not be
> used to stop undesired third-party implementations.

Isn't that what the GPL does every day? It controls what can be done
with code that is copyrighted but not patented. By using the original
code, secondary users have agreed to all the terms of the license. The
GPL even claims the right to force a secondary user to release ALL the
code that they themselves wrote separately just because they used one
piece of GPLed code. Can I not similarly say that if someone wants to
use part of a standard which is copyrighted that they have to abide by
all the terms of the copyright license. How is that different from the
GPL?


>  Someone with a copyright license for the document can
> describe it in their own words, then distribute the resulting
> document freely; facts can not be copyrighted.

True. Just as I can describe in my own words some code that has been
released under the GPL and distribute that description. However, you
can't compile that description and have an executable program.
Similarly, one could describe a standard in their own words and
publish that. However, A) that description would not be a working
standard, B) if their description was close enough to the original
standard and they were trying to claim that it were a standard then
they could be sued for copyright violation just as someone can't write
a "really detailed book report" that just happens to read almost like
the original book and publish that. It is called plagiarism. You can't
just change a few things and get away with it. Nothing in my license
forbids anyone from talking about the standard.


 
> Only patents can control implementation.

If that were true then the entire Open Source Initiative is a moot
point.


>  Since you do not seem to intend
> to patent any required techniques, I fail to see how you can
> control implementations.  Publishing prior art can stop
> others from patenting your ideas, but it does absolutely
> nothing to prevent unauthorized implementations.

I am going to have to give this careful consideration. Everything I
have read so far seems to indicate that the experts in open standards
believe you can prevent unauthorized implementations through a
copyright license.

I understand that nothing is preventing anyone from making up a
similar standard and publishing it. I couldn't prevent them from doing
so even with a patent. Technically, one can only patent the method of
implementation itself and not the idea the method implements. Meaning,
I could patent my exact standard but I could not patent all possible
standards for marking up educational material in a hierarchical
fashion. What this means is that a patent would be very expensive but
not give any more real protection than a copyright license.

It seems to me that the GPL claims the right to "prevent unauthorized
implementations" of any software derived from the original code. It
seems to me that any software written to work with a standard could be
considered to be "derived" from that standard. Although, I see how
that is a stretch the courts may not agree with.


> Your licensing scheme is also clearly not open in the way
> Rosen described.  Charging fees for commercial use violates
> his second principle, "Open standards should be available to
> everyone on royalty-free terms."

You are correct. I am completely open to suggestions about whether to
charge fees or what to charge fees for. I am especially open to
dropping all fees for software. I want to make sure that there are no
impediments to software developers other than sticking to the standard
itself. However, managing the standard won't be cheap and major
textbook publishing houses are going to make millions selling content
in this standard. I can't agree with the notion of letting the
availability of free content wither away due to lack of funds while
providing a means of making big corporations richer al in the name of
being purely open. If the OSI refuses to sanction the license
agreement because it expects big corporations to give back a little of
what they take then so be it.


>  There are other problems
> with your terms (like requiring beta releases of implementing
> software to be hidden),

The point of this item is to prevent people doing an end run around
the license by claiming that the non-conforming software they are
releasing is just a beta.


> but that alone makes your standard
> impossible to implement with open source (which /can/ be
> commercial).

I get your point. For some reason I hadn't realized that ALL
open-source software is always tested in open beta. So I will probably
have to drop this provision. Can anyone think of a different means of
protecting the standard from this type of end-run without restricting
how open-source software is tested?



>  You also say you intend to submit your standard
> to W3C, which I believe requires standards can be implemented
> royalty-free

I have read the W3C's patent policy. I have been having my doubts as
to whether to submit the standard to the W3C after all. I don't like
the notion that once a standard is submitted to W3C that they
essentially take over all control of that standard. All the big
corporations that are members of the W3C would get to push the
standard all over the place based on what they thought would be most
profitable rather than based on what will be the most educationally
sound and beneficial. Also, and I know this sounds a little selfish,
but why should Tim Berners-Lee and his employees draw paychecks for
mucking up my standard while I sit around out here with no political
clout to have any say in what goes on and nothing to show for all my
work and contributions. I am hoping to form a non-profit and then work
as the technical director of that non-profit. I'm not trying to get
rich here, but I would like to keep a roof over my head.


Finally, I will also have trademark control. I can simply refuse to
allow anyone to use the trademark unless they abide by the copyright
license. Yes, someone could make up an entirely different standard
with an entirely different name. But they could always do that. I
believe, if I play my cards right, I can popularize this standard
enough so that no one would waste their time creating a different one.
Heck, even if they do, at least I will have revolutionized education.
I might not have anything to show for it, but at least I will have
started something that has helped the whole world and that will be
worth it.

[Matthew Flaschen]

Grant Robertson wrote:
> Isn't that what the GPL does every day? It controls what can be done
> with code that is copyrighted but not patented.

An implementation of a standard is not derived from the standard in the
copyright law sense.  Thus, even if you GPLed the standard, proprietary
software could still implement it.

> The GPL even claims the right to force a secondary
> user to release ALL the code that they themselves wrote separately just
> because they used one piece of GPLed code.

That's not true.  This only applies if the new work the distribute can
be considered a derivative work of the original.

> Can I not similarly say that  if someone wants to use part of a
> standard which is copyrighted that they have to abide by all the terms of the copyright license. How is
> that different from the GPL?

No, because there are no consequences if they ignore these rules.  It is
not copyright infringement to implement the methods described in a
copyrighted work.  If I buy a book on mousetraps, I don't need the
author's permission to build and sell their new clever mousetrap.  If
the mousetrap invention were patented, then I would.  The same applies
for a standard.  If I acquire a copy of the standard, I'm free to
implement it without special authorization, unless there are relevant
patents.

I realized there /may/ be (remember, IANAL TINLA, etc.) is one way to
stop unauthorized implementations without patents.  You could register
the standard as a trade secret, and require everyone to sign a contract.
 They could agree:

a. not to describe the standard to anyone.
b. only implement it in the ways you describe
c. pay any relevant fees
d. etc.

Then, anyone who implemented the standard in an undesired way would be
in breach of contract; the same is true if they described the standard
to someone.

However, allowing your standard to be implemented probably invalidates
the trade secret, especially if you allow open source implementations.
I would *not* recommend trying this.  It is unethical (and clearly not a
real open standard) and legally dubious.   The only reason I mention it
is that someone else is bound to bring up contracts, and this is the
most effective contract I can think of.

> True. Just as I can describe in my own words some code that has been
> released under the GPL and distribute that description. However, you
> can't compile that description and have an executable program.

No, but you can learn from reading GPL code and make a separate e.g.
proprietary implementation that does the same thing.  It's a close call,
but that separate implementation need not infringe copyright if you do
it right.

> Similarly, one could describe a standard in their own words and
> publish that. However, A) that description would not be a working
> standard

But it could completely describe the requirements of the actual standard.

, B) if their description was close enough to the original
> standard and they were trying to claim that it were a standard then
> they could be sued for copyright violation just as someone can't write
> a "really detailed book report" that just happens to read almost like
> the original book and publish that.

It wouldn't be necessary to make it read like the original.  If it was
written very differently, I don't think it would be a copyright
infringement.  As an example, lots of people make explanations
(sometimes entire books) based on W3C recommendations and the W3C has no
copyright claim against them.

> It is called plagiarism.

Arguably, yes.  But plagiarism is not a crime.  It is not copyright
infringement, which is.

>> Only patents can control implementation.
>
> If that were true then the entire Open Source Initiative is a moot
> point.

Your analogy is really breaking down.  Open source licenses are
necessary because by default I can't make a new version of a copyrighted
program; that's copyright infringement.  Thus, if the author wants to
let me, they must grant permission.  Every open source license (with the
exception of the thus-far unpopular contract-based ones) is such a
permission.

However, I can make a new program B that does *exactly* the same thing
as A.  If I don't look at A's code (and even sometimes then), B is never
a copyright infringement.  Similarly, if I implement your standard
without reading it, it is not copyright infringement.  There are various
ways I could do this, such as reverse-engineering (same way B legally
mimics A) and reading a legal third-party description.

> I am going to have to give this careful consideration. Everything I
> have read so far seems to indicate that the experts in open standards
> believe you can prevent unauthorized implementations through a
> copyright license.

I don't think so.  You haven't quoted any experts.  The W3C link I gave
clearly implies patents are the real issue.

> Technically, one can only patent the method of
> implementation itself and not the idea the method implements.

In theory maybe (it depends what you mean by idea).  In practice, the
USPTO has a bad habit of completely ignoring such distinctions.

> Meaning, I could patent my exact standard but I could not patent all possible
> standards for marking up educational material in a hierarchical
> fashion.

Actually, there's a good chance with the right patent lawyer you could.
   It might not hold up in court, but as long as you intimidate your
opponents you won't need to sue, and it could work out fine.

> It seems to me that any software written to work with a standard could be
> considered to be "derived" from that standard. Although, I see how
> that is a stretch the courts may not agree with.

They shouldn't.  This is precisely the point of patents (though you
shouldn't really be able to patent software, because it is ultimately a
mathematical algorithm, and those are not patentable) .

> If the OSI refuses to sanction the license
> agreement because it expects big corporations to give back a little of
> what they take then so be it.

This seems outside of OSI's scope since you're trying to license a
standard, not software.

> Finally, I will also have trademark control. I can simply refuse to
> allow anyone to use the trademark unless they abide by the copyright
> license.

Yes, that is a good point.  That is for instance how Sun (err.. I mean
the totally independent JCP) has been keeping third-party Java
reimplementations in line (they do offer to certify correct third-party
implementations, but none are perfect and I believe the official testing
is expensive).  However, there's a limit to how effective the trademark
method is. Note that there /are/ unauthorized third-party Java
implementations, and they are all incorrect to varying degrees (usually
not on purpose).  They obviously don't call themselves Java, but they
sometimes say things like "Java reimplementation", "third party Java
implementation",  "Java-compatible", and get away with it.  This is
actually a really good example, because the Java standard and API is
copyrighted, but Sun couldn't sue unauthorized implementors for
copyright infringement.

> Heck, even if they do, at least I will have revolutionized education.
> I might not have anything to show for it, but at least I will have
> started something that has helped the whole world and that will be
> worth it.

I wish you the best of luck; try not to let the legal issues bog you
down too much, but do think them out.

Matt Flaschen

[Grant Robertson]

Thanks for your help and your patience. You know what is interesting
is that when I mentioned protecting my standard with a patent in the
alt.text.xml newsgroup everyone said I couldn't patent a standard.
They gave me all these reasons why I should just copyright it and use
a copyright license to protect it.

> From: Matthew Flaschen
>
> An implementation of a standard is not derived from the
> standard in the copyright law sense.  Thus, even if you GPLed
> the standard, proprietary software could still implement it.

OK, that is good to know. Are you really darn sure about this or is
this just your opinion. Not that I doubt you, but I don't want to
change directions yet again based on a hunch.


> > The GPL even claims the right to force a secondary user to
> release ALL
> > the code that they themselves wrote separately just because
> they used
> > one piece of GPLed code.
>
> That's not true.  This only applies if the new work the
> distribute can be considered a derivative work of the original.

I thought any inclusion of other GPLed code made all of the associated
code into a derivative work. Do you mean to say that I could include a
few routines or classes from some GPLed code without releasing the
whole thing under GPL?


> It is not copyright infringement to implement the
> methods described in a copyrighted work.  If I buy a book on
> mousetraps, I don't need the author's permission to build and
> sell their new clever mousetrap.  If the mousetrap invention
> were patented, then I would.  The same applies for a
> standard.  If I acquire a copy of the standard, I'm free to
> implement it without special authorization, unless there are
> relevant patents.

See, now that is what I thought in the first place. But I had people
telling me that a copyright would protect the standard. Geez, now what
the heck am I gonna do?


> [Trade Secret...] require everyone to sign a contract.

No, I am certainly not going to go this route.

> It wouldn't be necessary to make it read like the original.  
> If it was written very differently, I don't think it would be
> a copyright infringement.  As an example, lots of people make
> explanations (sometimes entire books) based on W3C
> recommendations and the W3C has no copyright claim against them.

Damn! That's a really good point too. Half of the books I have read on
XML read like all they did is slightly reword what is right on the W3C
website. If they can do this to the W3C then they could do it to me.


> plagiarism is not a crime.  It is not
> copyright infringement, which is.

Another good point.


> Open source licenses
> are necessary because by default I can't make a new version
> of a copyrighted program; that's copyright infringement.  
> Thus, if the author wants to let me, they must grant
> permission.  Every open source license (with the exception of
> the thus-far unpopular contract-based ones) is such a permission.

So, what you are saying is that the copyright law imposes the
restrictions. All a copyright license can do is remove some of those
restrictions. A license cannot impose extra restrictions. That makes
sense, unfortunately.


>  The W3C
> link I gave clearly implies patents are the real issue.

So, here is my problem. I am flat broke. I live on financial aid. I
can't afford to even file for a provisional patent let alone a real
one. I can't get help from my university because they want to be able
to charge market rate license fees and make a profit. That would kill
the standard.



> > Technically, one can only patent the method of
> implementation itself
> > and not the idea the method implements.
>
> In theory maybe (it depends what you mean by idea).  In
> practice, the USPTO has a bad habit of completely ignoring
> such distinctions.

I know they ignore them for big corporations all the time. But I doubt
they would ignore them for me. And if they did, then there would be a
hole in my patent the size of a truck for the big corporations to
drive their teams of lawyers through.


> Actually, there's a good chance with the right patent lawyer
> you could.
>    It might not hold up in court, but as long as you
> intimidate your opponents you won't need to sue, and it could
> work out fine.

Unfortunately, a good patent lawyer costs a lot of money which I don't
have available and my "opponents" would be Microsoft and the big
textbook publishing firms. You can't intimidate those guys with a
patent. All my time and all the organization's money would go into the
sinkhole of protecting the patent.


> This seems outside of OSI's scope since you're trying to
> license a standard, not software.

OK, but I would still like some more advice from open-source
developers. I want to design my standard and my license (whether
copyright or patent) so that it promotes and supports open-source
development of software to implement the standard. I want students to
have lots of different options as to software they can use to study
the material authored using this standard.


> I wish you the best of luck; try not to let the legal issues
> bog you down too much, but do think them out.

Thanks.

[Matthew Flaschen]

Grant Robertson wrote:
> You know what is interesting
> is that when I mentioned protecting my standard with a patent in the
> alt.text.xml newsgroup everyone said I couldn't patent a standard.

As I said, you can't patent the standard, but rather techniques required
to implement it (Essential Claims as the standard bodies say)

>> An implementation of a standard is not derived from the
>> standard in the copyright law sense.  Thus, even if you GPLed
>> the standard, proprietary software could still implement it.

> OK, that is good to know. Are you really darn sure about this or is
> this just your opinion.

Like I said, I am not a lawyer and you really should talk to one before
you go much further.  I am pretty sure of this.  However, I just did a
little research and found an article about just this issue
(http://www.daviddfriedman.com/Academic/Standards/Standards.html) that
indicates it may be more complex.  That said, it definitely seems
standards bodies like W3C and OASIS
(http://www.oasis-open.org/who/intellectualproperty.php) focus far more
on patents.

> Not that I doubt you, but I don't want to
> change directions yet again based on a hunch.

No, you're right to doubt, but it's more than a hunch.

> I thought any inclusion of other GPLed code made all of the associated
> code into a derivative work. Do you mean to say that I could include a
> few routines or classes from some GPLed code without releasing the
> whole thing under GPL?

It depends what you mean "include".  Probably the whole thing would have
to be GPL, but if your new code can be considered independent of the GPL
classes it might not have to be GPL.  This is a very subtle issue.

> So, what you are saying is that the copyright law imposes the
> restrictions. All a copyright license can do is remove some of those
> restrictions. A license cannot impose extra restrictions. That makes
> sense, unfortunately.

Right...  Licenses can't impose restrictions per se, but they can
specify conditions for permissions.

I.E. you can do A, but only if you do B.  So the GPL says you can
distribute derivative works, but only if you release them under the GPL.
      But if A doesn't require permission under copyright law
(derivative works do, but I don't think implementing a standard does)
then people can just ignore the license and do A without doing B.

> All my time and all the organization's money would go into the
> sinkhole of protecting the patent.

You're probably right.  Maybe you don't need to earn money by charging
for implementations.  If this standard becomes popular, you could make
money on official content and certifications (both your ideas), either
through donations, charging outright, or both.

> OK, but I would still like some more advice from open-source
> developers. I want to design my standard and my license (whether
> copyright or patent) so that it promotes and supports open-source
> development of software to implement the standard.

The only real way to do that is to allow royalty-free implementations.

Matt Flaschen

[David Woolley (E.L)]

Grant Robertson wrote:
> It seems to me that the GPL claims the right to "prevent unauthorized
> implementations" of any software derived from the original code. It

That's the default copyright position; the GPL is simply not
lifting that restriction except where you comply.

> seems to me that any software written to work with a standard could be
> considered to be "derived" from that standard. Although, I see how
> that is a stretch the courts may not agree with.

Where you need the lawyers is to define the exact meaning of
derived.  However, as a non-lawyer, I haven't heard of implementing
a standard being considered a copyright issue (although Adobe do
claim the copyright on the PostScript operator names, so, if they
are correct, you might not be able to implement an interworkable
implementation without the copyright licence that they give - that
may be a particular problem for software standards, as it wouldn't
apply to, say, screw threads).

> open-source software is always tested in open beta. So I will probably

The beta/release distinction for open source is not really well defined.

However, I think that "open beta" is really a marketing name for
pre-releasing, so as to corner the market, rather than for testing,
as most users of open betas don't provide feedback.

> Finally, I will also have trademark control. I can simply refuse to
> allow anyone to use the trademark unless they abide by the copyright
> license. Yes, someone could make up an entirely different standard

I think that what you are calling a copyright licence is actually a
trademark licence, in this respect, and it is trademark law that you
should be using to enforce the integrity of the standard.

(Incidently, there is a long history of big companies mis-implementing
standards and simply renaming them to get round the problem.  There is
also a significant history, in the software world, of companies simply
mis-implementing and then relying on their power in the market to make
their implementation the de facto one - especially for HTML!)

IANAL.

[David Woolley (E.L)]

Matthew Flaschen wrote:
> An implementation of a standard is not derived from the standard in the
> copyright law sense.  Thus, even if you GPLed the standard, proprietary
> software could still implement it.

If it were ruled to be the case, it would largely kill open source
software, as, especially for standards from consortia, e.g. W3C,
it could make it impossible to implement interworkable open source
programs.  In fact, companies might start publishing interface standards
to prevent the production of competing products!  Currently they can
only do this with patents.

> stop unauthorized implementations without patents.  You could register
> the standard as a trade secret, and require everyone to sign a contract.
>  They could agree:
>
> a. not to describe the standard to anyone.
> b. only implement it in the ways you describe

I think that has also been done with click wrap specifications, like
that for the Microsoft Word file format.  I think that Microsoft would
claim that you are entering a non-disclosure agreement when you view
that on MSDN.  As NDA normally have to created as deeds in the UK, I'm
not sure how valid that is, but people are not going to challenge MS
lightly.

> No, but you can learn from reading GPL code and make a separate e.g.
> proprietary implementation that does the same thing.  It's a close call,
> but that separate implementation need not infringe copyright if you do
> it right.

Most of the FSF branded GPL code is emulating proprietary code from
Unix.  For the FSF created stuff, they have gone to some trouble to
ensure that it is code by people who have never seen the original code.
In some cases, I think they have used clean room techniques, where one
person is allowed to see the original, and writes a high level
specification, from which the other writes new code.

Internet Explorer probably would never have existed if MS could
re-implement Netscape's copyrighted code.
>
>> It is called plagiarism.

Plagiarism is where you do not acknowledge the original as the source,
although, obviously, acknowledging the original gives rise to the sort
of based on xxxx work around.  A lot of student plagiarism is actually
copyright violation.

> implementation",  "Java-compatible", and get away with it.  This is
> actually a really good example, because the Java standard and API is
> copyrighted, but Sun couldn't sue unauthorized implementors for
> copyright infringement.

I seem to remember that, like Adobe and PostScript, Sun claim copyright
on the Java keywords, but then grant an open licence to use them in
valid implementations.  Most assembly languages claim copyrights on the
instruction mnemonics.

[Arnoud Engelfriet-2]

David Woolley wrote:
> Matthew Flaschen wrote:
> >An implementation of a standard is not derived from the standard in the
> >copyright law sense.  Thus, even if you GPLed the standard, proprietary
> >software could still implement it.
>
> If it were ruled to be the case, it would largely kill open source
> software, as, especially for standards from consortia, e.g. W3C,
> it could make it impossible to implement interworkable open source
> programs.  

Care to elaborate?

A standard is a document that specifies an interface. If I write my
own implementation, I am free to license my implementation however
I want. You can do the same. There is nothing special in this regard
about choosing the GPL or a highly protective proprietary license.

The standard itself is a copyrighted document, and so needs to have
a copyright license. If you use the GPL, that's fine, and you can
insist that any derivative implementation should also be made GPL
(if published). But if I can create an original, i.e. non-derivative
implementation, I do not need to obey the GPL for my implementation.

> >implementation",  "Java-compatible", and get away with it.  This is
> >actually a really good example, because the Java standard and API is
> >copyrighted, but Sun couldn't sue unauthorized implementors for
> >copyright infringement.
>
> I seem to remember that, like Adobe and PostScript, Sun claim copyright
> on the Java keywords, but then grant an open licence to use them in
> valid implementations.  Most assembly languages claim copyrights on the
> instruction mnemonics.

Claiming copyright and actually having a copyright are two
very separate things.

What happens in many cases is that you simply don't get a copy of
the standard unless you sign a heavy-handed contract that specifies
exactly what you are allowed to do. And once you go the contract route,
the copyright or patent status of the techniques or descriptions
becomes completely irrelevant.

Arnoud

--
Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/

[David Woolley (E.L)]

Arnoud Engelfriet wrote:
> David Woolley wrote:
>> If it were ruled to be the case, it would largely kill open source
>> software, as, especially for standards from consortia, e.g. W3C,
>> it could make it impossible to implement interworkable open source
>> programs.  
>
> Care to elaborate?
>
> A standard is a document that specifies an interface. If I write my

You are saying that it wouldn't be ruled the case.  The originator
of the thread seemed to believe it was already the case.  I am simply
saying that it is a path he really doesn't want to pursue, because, if
the law is interpreted the way that he wants it to be interpreted, it
will benefit the big corporations as they will be able to prevent open
source implementations and other competing implementations, something
that most businesses want to do, but currently think that they cannot.

(Most key IT specifications these days are own by industry consortia,
not by national standards bodies.)

My current understanding is that copyright is largely ineffective in
limiting implementation of standards.

> Claiming copyright and actually having a copyright are two
> very separate things.

I very deliberately used the word "claiming" for that very reason,
or more precisely because I don't have the legal competence to
know whether it is a FUD tactic or legally enforceable.  Actually
a lot of patents, even though registered, are probably  not valid
either.

>
> What happens in many cases is that you simply don't get a copy of
> the standard unless you sign a heavy-handed contract that specifies

There are a lot of those out there.  Generally I don't get to see them,
but it does frustrate me as to how much of today's technology is based
on such closed specifications (some people say that "standards" is
reserved for the ISO and national standards organisations).

Most of the rest are so highly priced that few organisations selling
products to the standards actually have had sight of the standards;
they simply rely on their supplier's claims.

[John Cowan]

David Woolley scripsit:

> Internet Explorer probably would never have existed if MS could
> re-implement Netscape's copyrighted code.

In fact, Netscape (through version 4) and IE (through version 6) are
independent reimplementations of the original NCSA Mosaic codebase.
Microsoft's predecessor in interest, Spyglass Inc., licensed the Mosaic
name and technology but did not reuse any of the Mosaic code, though
they could have.

Indeed, Microsoft attempted to license Netscape Navigator before
turning to Spyglass, but was turned down by Netscape.

See http://en.wikipedia.org/wiki/Mosaic_%28web_browser%29 .

--
John Cowan       http://www.ccil.org/~cowan        <cowan@...>
        You tollerday donsk?  N.  You tolkatiff scowegian?  Nn.
        You spigotty anglease?  Nnn.  You phonio saxo?  Nnnn.
                Clear all so!  `Tis a Jute.... (Finnegans Wake 16.5)

[David Woolley (E.L)]

John Cowan wrote:
  code.
>
> In fact, Netscape (through version 4) and IE (through version 6) are
> independent reimplementations of the original NCSA Mosaic codebase.

The key point about web browsers is that they have to be bugwise
compatible; complying with the specification isn't enough.  That
means that they have to work the same as their competitor without
actually using the competitor's code.