Larry Rosen, the man who wrote the book on Open Source Licensing, has penned an open letter to the Internet Engineering Task Force (IETF) regarding the formalization of a policy that paves the way for patented technologies to become IETF standards. The IETF is the organization that sets the standards for most internetworking technologies. For example, the standards for Internet email (SMTP), network management (SNMP), Ethernet, and WiFi (actually Wireless Ethernet) are all IETF-ratified standards.
Should the IETF open the door to any encumbrance of its standards by virtue of patents, an IETF patent-laden standard would be the equivalent of giving the patent(s) holders control over some future part of the Internet (essentially annointing a monopoly). A more acceptable policy would be for the IETF to require patent holders to issue a permanent patent grant to anybody wishing to implement the affected standards.
As you can see from Rosen's open letter (below), he's particularly sensitive to the potential impact on open source developers. Without patent grants that allow anybody including open source developers to "practice" a patent, it's virtually impossible to for an open source developer to create an implementation of that patent and then share that implementation with others (as is often the practice in the open source community. If practicing a patent requires a license from the patent holder (and that license doesn't allow for any sub-licensing... a condition that comes at the discretion of the licensor), it creates a road-block to the most fundamental aspect of both open source and free software (the two aren't necessarily the same: free software qualifies as open source but not necessarily the other way around).
Here is the letter. The striketrhoughs represent corrections that Rosen forwarded to me after the letter was originally drafted. The first version of the letter incorrectly assumed that the policy was still a draft policy. According to Rosen, the situation is far worse: it's already formalized:
I want to let you know about the
latest proposalformal policy from the IETF IPR Working Group regarding rights in contributions made to IETF for Internet standards. See www.ietf.org/rfc/rfc3978.txt.
IETF, the most democratic and open of standards organizations, is proposing a contribution policy that, simply put, may result in standards that are not truly open for implementation and use in open source software. This
draftformal policy offers, in section 3.3(a)(E), generous copyright licenses for contributions, but it expressly omits any patent licenses:
... (it also being understood that the licenses granted under this paragraph (E) shall not be deemed to grant any right under any patent, patent application or other similar intellectual property right disclosed by the Contributor under [RFC3979]).
The draft policy contains this language because, as one participant said on the IPR WG discussion list, it should be up to each individual IETF Working Group to decide whether a standard should be adopted even though a contributor's necessary patent claims may not be freely available to actually practice the standard. This is worse in some respects than the "reasonable and non-discriminatory" policies that the open source community has been fighting against in other standards organizations. This new policy does not even promise RAND, much less FREE, patent licenses. This contribution policy may actually result in standards that can't even be implemented at a reasonable price by proprietary software companies, let alone by open source projects! The IETF is a public trust, and the intellectual property rights in IETF contributions are being given to a 501(c)(3) public benefit organization for release as Internet standards. I do not believe that IETF working groups should ever promulgate private standards for the financial benefit of private patent owners, no matter how wonderful the technology.
As I said above, IETF is a democratic and open organization. Many engineers and others in the open source community already participate in IETF working groups and contribute to this essential commons of open standards for the Internet. I encourage every IETF contributor to read the
proposedformal IETF policy and to express your own opinion about whether it should be adopted in its current form.
The co-chair of the IETF IPR WG, Harald Alvestrand, suggested that I take this issue to an open list. He also invites anyone who wants to participate in this debate
and to vote on the proposalto join the discussion group. (https://www1.ietf.org/mailman/listinfo/ipr-wg)https://www1.ietf.org/mailman/listinfo/ietf
This isn't Rosen's first such open letter regarding the intellectual property policies of an organization or consortium that oversees the development of de jure or de facto standards. Back in 2005, Rosen organized a boycott against OASIS after that organization adopted a similarly liberal intellectual property policy.