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

Matthew Flaschen matthew.flaschen at
Sun Apr 15 05:04:51 UTC 2007

Grant Robertson wrote:
> You know what is interesting
> is that when I mentioned protecting my standard with a patent in the
> alt.text.xml newsgroup everyone said I couldn't patent a standard.

As I said, you can't patent the standard, but rather techniques required
to implement it (Essential Claims as the standard bodies say)

>> An implementation of a standard is not derived from the 
>> standard in the copyright law sense.  Thus, even if you GPLed 
>> the standard, proprietary software could still implement it.

> OK, that is good to know. Are you really darn sure about this or is
> this just your opinion.

Like I said, I am not a lawyer and you really should talk to one before
you go much further.  I am pretty sure of this.  However, I just did a
little research and found an article about just this issue
( that
indicates it may be more complex.  That said, it definitely seems
standards bodies like W3C and OASIS
( focus far more
on patents.

> Not that I doubt you, but I don't want to
> change directions yet again based on a hunch.

No, you're right to doubt, but it's more than a hunch.

> I thought any inclusion of other GPLed code made all of the associated
> code into a derivative work. Do you mean to say that I could include a
> few routines or classes from some GPLed code without releasing the
> whole thing under GPL?

It depends what you mean "include".  Probably the whole thing would have
to be GPL, but if your new code can be considered independent of the GPL
classes it might not have to be GPL.  This is a very subtle issue.

> So, what you are saying is that the copyright law imposes the
> restrictions. All a copyright license can do is remove some of those
> restrictions. A license cannot impose extra restrictions. That makes
> sense, unfortunately.

Right...  Licenses can't impose restrictions per se, but they can
specify conditions for permissions.

I.E. you can do A, but only if you do B.  So the GPL says you can
distribute derivative works, but only if you release them under the GPL.
      But if A doesn't require permission under copyright law
(derivative works do, but I don't think implementing a standard does)
then people can just ignore the license and do A without doing B.

> All my time and all the organization's money would go into the
> sinkhole of protecting the patent. 

You're probably right.  Maybe you don't need to earn money by charging
for implementations.  If this standard becomes popular, you could make
money on official content and certifications (both your ideas), either
through donations, charging outright, or both.

> OK, but I would still like some more advice from open-source
> developers. I want to design my standard and my license (whether
> copyright or patent) so that it promotes and supports open-source
> development of software to implement the standard.

The only real way to do that is to allow royalty-free implementations.

Matt Flaschen

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