Whether they will take advantage of this position remains to be seen: Actions speak louder than words. But for now, words are all we have to go by, and there are a lot of words flying around. In addition to the various intellectual property declarations and agreements for which there's no central repository, a Microsoft spokesperson has responded to my investigative analysis in an interview with my colleague David Coursey. But, if you ask me, the only words we can really count on are the legally binding ones. Anything else is spin control.
For example, three years ago, Microsoft senior corporate counsel Kate Sako claimed that, although the World Wide Web consortium (W3C) had no patent policy at the time, Microsoft would make any of its patented technology available on a royalty-free, reciprocal basis. Meanwhile, documents filed with the W3C since that time (such as a digital signature proposal) clearly state that if the contribution is adopted as a standard, a license will be granted on an reasonable and non-discriminatory basis--not on a royalty-free basis, as Kato promised. Which statement can we legally depend on?
Unfortunately, the principle of royalty-free access to the Internet has been lost in the labyrinth of legally binding terminology that appears in every Web services-related document. This includes documents from UDDI.org and W3C, as well as the intellectual property release agreement of the recently formed Web Services Interoperability Organization (WS-I).
It is time for that labyrinth to be eliminated. First, vendors must boycott organizations like the WS-I and UDDI.org that serve as shelters for patent holders who have the power to turn their intellectual property into de facto standards. No one vendor’s civil disobedience will be enough. It takes a village, and that village should include vendors like Hewlett-Packard, which has previously and publicly demanded royalty-free standards for the Internet. It should include vendors like Oracle, Intel, Sun, BEA, SAP, and any others that, until now, have shown support for whatever reasons.
Second, it’s time to consolidate any activities that require intellectual property releases--such as those of UDDI.org and the WS-I--under the roof of one organization. That organization must be run by an independent, non-vendor run leadership; it must have the entire Internet community’s best interests at heart; and it must follow a strict policy of royalty-free access to the Web infrastructure. The best candidate for this so far, the one that’s already championed such royalty-free access, and the one that’s about to launch a royalty-free patent policy (with few exceptions), is the World Wide Web consortium (W3C).
If this doesn’t happen, the likelihood greatly increases that content developers, software vendors, Internet appliance manufacturers, and Web users like you and me will some day be required to pay an unnecessary toll for using a standard technologies. Where might that toll show up? Perhaps in the cost of your software or development tools that support the so-called standard. Or maybe you'll get a bill in the mail from a patent holder who's discovered which Web developers have implemented the standard and who their customers are. And if you're a Web services developer who has registered with the Yellow Pages of Web services--a UDDI directory--IBM and Microsoft will have no trouble finding you. (Guess what companies created UDDI.org?)
It's not like this hasn't happened before. Unisys threatened to charge Web-site owners a fee for using GIF-based images because of a patent it held on GIF's compression technology. British Telecom is now saying it owns the patents to the very thing that makes the Web useful--hyperlinking. Imagine the bill we could get for that? The possibilities are endless. Worse, the patent holders could double or triple their fortunes because the Web services development tools, which you will invariably buy from them, cost money too.
This patent thing is a mess. Don't get me wrong here. I firmly believe that any company should be able to generate revenue off its patent portfolio. Microsoft has done this with Windows. Sun has done this with Java. Intel has done this with its x86 architecture. But none of those have received the imprimatur of a publicly recognized standards setting organization. But now that just enough of the Web services protocol stack (WSDL and SOAP) is on track to receive the W3C's royalty-free badge of approval, there's an inherent risk that IBM and Microsoft's version of the rest of the stack --- the parts that can actually make Web services work --- will become the de facto standard because of the combined influence the two companies have over the industry and their ability to push aside the W3C. It would be no different than if one company controlled HTTP, FTP, NNTP or SMTP--the protocols which make some of the Internet's current and most popular applications (browsing, file transfer, newsgroup access, and e-mail) possible. Such non-traditional control over the protocols that power the Internet's most common applications would give the intellectual property holders of those protocols unprecedented control over the Internet itself.
What happens if such control leads to a situation where anybody who wants to conform to a standard in order to access or support the most commonly used Internet applications is subject to royalties? A barrier to use is created, innovation is lost, and the number of standard-supporting products available is greatly reduced. In short, competition in those markets is foreclosed. That latter point is especially true in cases where the patent holders have significant portfolios of products and tools that support the standards. They--and no one else--get to operate in a royalty-free environment. In the case of Web services, IBM and Microsoft could qualify, should they decide to exercise their options. These unsavory attributes are the domain of the word "proprietary" and should, under no circumstances, be tolerated in connection with something that claims to be an Internet standard.
Instead, the protocols should be made royalty-free and all companies, including the original patent holders, should compete on the quality of their implementations of those standards. Neither Microsoft nor IBM has anything to fear from that scenario. Both are purveyors of great products, tools, and services on which many people and companies depend. For them, the benefits of going royalty-free with their Web services contributions is more likely to secure their revenues than not. Why? As W3C Patent Policy Working Group chairman Danny Weitzner says, "the Web would never have grown to include hundreds of millions of users if it wasn't for the fact that its core protocols like TCP/IP and HTTP were royalty-free."
The same goes for Web services. If Microsoft and IBM really want to see Web services take off, the royalty-free route is the only way to go. And when Web services do take off, they'll both be there with solutions that many already consider to be best of breed.