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

Grant Robertson grantsr at
Sat Apr 14 22:15:58 UTC 2007

> 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

>  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

>  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.

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