In my first 24 hours in the Blogosphere I’ve received a warm welcome (thanks Jason) and, well, a not so warm welcome from Dana Blankenhorn over at the ZDNet Open Source Blog. Despite Dana’s urging me to stay offline, I figured it might be more interesting to respond to his comments.
Dana first takes issue with my characterization of RAND licensing practices:
“First Rudin describes the controversial RAND (Reasonable And Non-Discriminatory) licensing schemes that some proprietary firms have been trying to force into the Internet standards, in order to make it a permanent toll road, as a universally-accepted concept. I think that’s pulling a fast one, but I’ll let it pass.”
Though there are certainly those such as Dana that don’t agree with RAND licensing, most standard organizations operate on a RAND basis. ECMA comes to immediately to mind. IEEE and OASIS allow licensing on RAND terms, with or without royalty. Even the W3C, which is responsible for a great number of Internet standards, operates on a royalty free RAND basis. No pulling a fast one here. The point is that whether or not a patent royalty is allowed for a given standard, most standard organizations operate on a RAND basis.
Dana then takes issue with me calling patents a property right. Fortunately, I can let the U.S. Patent Office speak for me on this one:
What Is a Patent?
A patent for an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office….
The right conferred by the patent grant is, in the language of the statute and of the grant itself, “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States.
Dana then moves on to copyrights, a separate intellectual property right from patents. Unlike patents, which protect inventions, copyrights protect the expression of ideas. The reason I bring this up is that it’s important to understand the roles of patents and copyrights in standards.
Standard organizations generally publish technical specifications for others to actually implement. Those specifications, being expressions of ideas, are protected by copyright. Standard organizations have the right distribute those specifications, sometimes for a fee and sometimes at no cost (running a standards body isn’t cheap and they have expenses they need to cover).
Getting the specification on its own, however, does not necessarily give people the right to implement that specification. That’s where patents come in. Under RAND policies, patent holders in those standard bodies agree to give up one of their primary patent rights – the right to exclude others from making use of that patent.
It’s important to keep in mind that standards licensing is very different from commercial software licensing that most people are familiar with. When you license commercial software, you get the rights to use that software. Those rights include both copyright and patent rights. When you want to implement a standard, the standards organization can only grant copyright rights to the specification. Implementers are still required to get the necessary patent rights, if any, from patent holders. Sometimes this means getting the rights from the patent holder itself, other times it might mean getting the rights from a group of patent holders through a patent pool.
What Microsoft has done with its Open Specification Promise goes beyond its RAND licensing commitments. It say that implementers of the covered specifications don’t need to come to Microsoft to get a license - we’ve already given you the rights to use our patents.