Introducing the Open Web Foundation Agreement
After a little more than a year, the Open Web Foundation has just announced its agreement for Specifications. Having worked with the Open Web Foundation on the legal committee and on the board, I am extremely proud of this accomplishment, which involved the efforts of a number of individuals from a variety of backgrounds, philosophies, and companies. Special thanks go out to Eran Hammer-Lahav, Lawrence Rosen, David Recordon, DeWitt Clinton, and Stephan Wagner for all their hard work to get the agreement and the organization to this point.
The Open Web Foundation was formed to address the needs of the growing communities that are developing specifications outside of the traditional standards process. Communities involved in developing specifications such as OpenID, OpenSocial, and OAuth each began without legal structures in place and found that they couldn’t achieve widespread adoption without agreements to establish the legal terms around their specifications. Both OpenID and OpenSocial spent a great deal of time and energy (and attorney fees) forming new foundations for their specifications. OAuth spent many months negotiating its agreement after the specification itself was done. As more and more projects like these started to emerge, it became apparent that there needed to be a way to streamline the process of getting the legal and intellectual property agreements in place. The Open Web Foundation was formed to offer at least one solution to this problem.
At its core, the Open Web Foundation is developing a set of agreements that individual specification development communities can apply to their own projects. This is done independently of the Open Web Foundation itself. Just as anyone can apply a Creative Commons copyright license to their written work without Creative Commons being involved, specification developers can choose to use the Open Web Foundation agreement for their own projects without the Open Web Foundation being involved. In other words, the Open Web Foundation isn’t a standards body, but it does help specification developers handle the intellectual property issues that are vital to help gain the widespread adoption of the technologies they develop.
The Open Web Foundation is not a replacement for traditional standards bodies, but it is intended to be complementary. One of the core philosophies behind the Open Web Foundation agreement was to enable to the transition of specifications under the Open Web Foundation agreement to traditional standards bodies. It does so by establishing copyright and patent grants that are intended to be compatible with established standards development organizations.
How the Agreement Works
Needless to say, you should seek your own legal advice when considering using the Open Web Foundation agreement, or OWFa, and this should not be considered legal advice.
The agreement, which is applied a particular version of a specification, is short (about 2 pages) and lightweight. Unlike traditional agreements governing standards, the agreement does not establish any formal rules around governance, voting, or operational issues. The Open Web Foundation leaves that for each specification development community to establish on their own. What it does concentrate on is intellectual property.
For copyright, signatories grant a broad copyright grant to the world, including the right to create derivative works. If you make a derivative work, you need to provide attribution to the original specification.
The patent grant offers implementers two options. The first is a royalty free patent non-assert, where signatories agree not to assert their necessary patent claims against implementers of the specification. It also includes defensive terms intended to protect the ecosystem that has implemented the specification. The other patent option is a more traditional standards licensing approach, where the signatory commits, upon request, to make to make their necessary patent claims that cover an implementation of the specification available on royalty free terms that are reasonable and non-discriminatory. The actual terms of that agreement are left to the parties to work out on their own.
Even though we’ve tried to make the agreement easy to understand, we’ve tried to make it even more understandable by creating a Creative Commons inspired “deed,” included below, that provides a high level summary of the agreement. While you should always read and understand the full agreement, this gives a good, non-legally binding overview.
Open Web Foundation Agreement “Deed”
What You Give and What You and the Community Get
You Give Everyone:
- Copyright - a free license to use the copyrights in your contributions.
- Patent - free rights to use your necessary patent claims to implement the specification.
You and the Community are free:
- to Share - to copy and distribute the specification.
- to Revise the Specification - to make new versions of the specification.
- to Implement – to use the signatories’ necessary patent claims to make, use, sell, offer for sale, import, or distribute any implementation of the covered specification.
Under the following conditions:
- Revise the Specification - If you make new versions of the specification
- you must include attribution to the original specification (but not in any way that suggests that they endorse you or your use of the work).
- you don’t get any rights under the agreement to anything new that you add.
- you must maintain the required portions of the original specification if you want to continue to take advantage of the patent grant.
- Non-Defensive Legal Action - If you take non-defensive patent legal action against another implementer of the same specification, you lose any rights you received for the same specification under the agreement from everyone who signed the agreement.
Next Steps
The OWFa is really the first step in the overall OWF process. Next, the OWF will start to develop a variety of contributor license agreements. These agreements will be signed before someone participates in a spec development effort. I would expect that there will be a variety of these contributor license agreements, but each will lead to a specification covered by the OWFa. For example, there may be contributor license agreements that cover only copyright, others may include some sort of up front patent grant, some may include governance rules, etc. This is intended to be a flexible upfront approach that allows communities to choose the way they work while helping to assure a consistent outcome across OWFa covered projects in the end.
Ultimately, the OWF’s goal is to build a legally sound structure for its target specification development communities, and the Board’s approval of the agreement for final specifications is a great start.
November 18th, 2009 - 09:50
Glyn Moody raised a few questions about the OWFa on his blog at http://www.computerworlduk.com/community/blogs/.... Since a response to his questions requires more than the 1000 characters his system allows, I wanted to post my response here.
—-
Glyn – One of the driving goals of the OWFa was to be compatible with open source and members of various open sources communities were involved in the agreement’s development.
As to the language “a personal promise directly from me to you” that you mentioned, keep in mind that the promise is from “me,” the patent owner, to “you,” which is essentially anyone in the world who makes, uses, sells, or distributes an implementation of the specification. In other words, while you can’t technically pass on the patent rights in the non-assert section to another party, everyone in the world gets the rights under the OWFa anyway. This direct relationship between the patent grantor and each person is also intended to protect the community since it helps ensure that if a recipient of the patent grant sues anyone over their implementation of the specification, the patent grantor can terminate the rights they granted to the party that started the legal action. Legally speaking, this provision is avoiding what’s known as patent exhaustion.
To say this another way, this structure helps ensure that someone who non-defensively sues another person over an implementation of the specification cannot continue to take advantage of the rights granted under the agreement. OWFa is attempting to make a covered specification into a litigation free zone to the extent it can.
I think it’s also worth mentioning that the other section you noted, the royalty free patent commitment, is a right in addition to the patent non-assert. If someone is not happy with the patent non-assert, they can request a more traditional royalty free license. Think of this as a fallback. If you can’t live with the non-assert, you can still negotiate for a license, and in that case OWF leaves it to the patent holder and the recipient to determine those license terms on their own, provided those terms are, to use legal jargon, reasonable and non-discriminatory. This is another safety net for implementations.
From a copyright perspective, the OWFa allows for the creation of derivative works of the specification, provided those new projects provide attribution. From a patent perspective, the OWFa’s patent grant covers new projects to the extent those new projects maintain interoperability with the covered specification by keeping the required portions of the original specification.
This last point is actually very important and one reason why specifications require a different kind of license than source code. Source code licenses tend to be inward looking in that they cover code and what you can do with that code. Specification licenses tend to be outward looking in that they focus primarily on interoperability between different implementations of the same specification. For example, from a source code perspective, it’s fine if you take an Apache web server and tweak or change the code since it doesn’t adversely impact anyone. If, on the other hand, you were to decide to unilaterally change how the server output HTTP, you’d be breaking interoperability with every browser that is expecting to receive the HTTP standard. This would harm the entire ecosystem built around that specification.
The reason people come together to agree on a standard is for interoperability, and often times that agreement is based on any number of compromises. When a patent owner commits to making their patents available for a specification, it’s in exchange for interoperability with other implementations of the same specification. The OWFa tries to strike a balance here. The agreement allows anyone to take the specification and change it any way they’d like, but to respect the compromises and agreements that went into the specification and the ecosystem built around the specification, you can only take advantage of the patent grant for those derivative works that maintain interoperability.
November 19th, 2009 - 13:25
Many thanks for those full and helpful comments. I think I follow them (IANAL)…but I wonder how they work in the specific case of GNU GPL'd code. Is it possible to write GPL'd code incorporating stuff released under the OWFa? I appreciate that downstream users of that code will also have a licence from the patent-holder, but I worry that that's not enough for the GPLv3, because:
“Whenever someone conveys software covered by GPLv3 that they've written or modified, they must provide every recipient with any patent licenses necessary to exercise the rights that the GPL gives them.” (http://www.gnu.org/licenses/quick-guide-gplv3.html).
My reading there is that the person licensing under the GPL must give the patent licence, not somebody else. What's your view?
November 19th, 2009 - 20:25
Many thanks for those full and helpful comments. I think I follow them (IANAL)…but I wonder how they work in the specific case of GNU GPL’d code. Is it possible to write GPL’d code incorporating stuff released under the OWFa? I appreciate that downstream users of that code will also have a licence from the patent-holder, but I worry that that’s not enough for the GPLv3, because:nn “Whenever someone conveys software covered by GPLv3 that they’ve written or modified, they must provide every recipient with any patent licenses necessary to exercise the rights that the GPL gives them.” (http://www.gnu.org/licenses/quick-guide-gplv3.html). nnMy reading there is that the person licensing under the GPL must give the patent licence, not somebody else. What’s your view?
November 19th, 2009 - 15:46
I posted this comment on the ComputerworldUK site, responding to the following paragraph in Glyn Moody's article:
“Now, IANAL, but it looks to me that this is problematic for licences like the GNU GPL, since it means that rights aren't passed on downstream – something that is absolutely vital for free software's licensing model to function. I look forward to hearing some lawyers' views on this issue.”
Why on earth would you prefer to get a sublicense rather than a license (non-assert) direct from the patent owner?
There is no need to be paranoid. You are reading too much into the language of the GPL. You don't need a license–because OWFa gives you an even stronger promise direct from the patent owner–and the GPL doesn't care.
If you try to force the GPL into some legal formalism that requires licenses and sublicenses, you'll get an ulcer and no software. Don't worry. Under the OWFa, the patent owner won't sue you for patent infringement if you implement the specification or use such software.
/Larry
November 19th, 2009 - 22:46
I posted this comment on the ComputerworldUK site, responding to the following paragraph in Glyn Moody’s article:nn”Now, IANAL, but it looks to me that this is problematic for licences like the GNU GPL, since it means that rights aren’t passed on downstream u2013 something that is absolutely vital for free software’s licensing model to function. I look forward to hearing some lawyers’ views on this issue.”nnWhy on earth would you prefer to get a sublicense rather than a license (non-assert) direct from the patent owner?nnThere is no need to be paranoid. You are reading too much into the language of the GPL. You don’t need a license–because OWFa gives you an even stronger promise direct from the patent owner–and the GPL doesn’t care.nnIf you try to force the GPL into some legal formalism that requires licenses and sublicenses, you’ll get an ulcer and no software. Don’t worry. Under the OWFa, the patent owner won’t sue you for patent infringement if you implement the specification or use such software.nn/Larry