[License-review] Request for approval of the updated W3C Software license

[Rigo Wenning]

Dear Mr. Smith,

On 2024-04-21 19:44:37, McCoy Smith wrote:
> The part about this that gives me pause is that it appears to contemplate licensors adding non-removable IP disclaimers ("Any pre-existing intellectual property disclaimers" must be preserved). 

As I said already in the other reply, if works are amalgamated and only 
partly under this W3C license, it is IMHO required to have those other 
notices & disclaimers too. This is also due to the technique of 
application of that license: By putting a link to the W3C Software 
License from the work in question, the license applies to that work. But 
of course those are only W3C practices and others may apply the license 
with other means. In the case of W3C practices, the sentence clarifies 
that the W3C does not want to replace other pre-existing rights.

Given that the W3C patent policy, although royalty-free, allows 
participants to exclude out patents (see W3C patent policy, Sec 4), this 
provision would seem to allow licensors to exclude out some or all of 
their patents that are infringed by the licensed code. Which would allow 
this license to include disclaimers that would make it violative of OSD 1.

There is a strict distinction between the copyright on works and the 
patent policy with respect to W3C Recommendations. They are entirely 
distinct. The W3C Software license does not contain any patent 
provisions. If we have works where the community wants to combine 
copyright licensing and patent protections on certain reference software 
e.g., I normally recommend one of the more modern OSI Licenses.

But this is distinct from claiming a patent on a W3C Recommendation. If 
a patent is excluded from a W3C Recommendation, the Exception Handling 
of § 7 of the Patent Policy[1] applies. I've done myself a dozen of 
those exception procedures. To date, there is no Recommendation of W3C 
that has known patent issues and that did not go through the exception 
procedure. So far W3C has never accepted a patent in a W3C 
Recommendation. We either killed the patent or designed around it.

In consequence it means that an open source implementation of a W3C 
Recommendation is protected by this procedure. But if the open source 
implementation features functionality beyond the W3C Recommendation, the 
W3C Patent Policy does not apply anymore (see No.3 of § 5).

The W3C Software license is not at all concerned with this system. For 
documents it is not needed and for Software, the patent concerns are out 
of scope for this (old) license.

> I'd suggest that the Board consider whether this provision (which exists also in the old, previously approved, version) might be violative of the OSD. Perhaps the text itself (a variant of MIT) provides enough patent protection even if a W3C member opts out its patents to a specification, but I'm not sure it makes sense to have an approved license that allows for add-on IP disclaimers around copyright or patent.

Again, a Working Group Member being able to opt out of their W3C patent 
commitments is unrelated to the license. And only because someone opted 
out of their W3C Working Group participant patent commitments does not 
mean that there are no mechanics to mediate the situation.

Note that only people that are members of a given W3C Working Group make 
patent commitments. The patent commitments made in W3C are independent 
of any license. They apply on W3C Recommendation features for works 
under all types of licenses, OSI or proprietary.

1.https://www.w3.org/Consortium/Patent-Policy/

Best regards

  --
  Rechtsanwalt Rigo Wenning
  ERCIM/W3C Legal counsel
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