[rights] Revisting the Patent and RF/RAND Issues

["Glushko, Bob" <Bob.glushko@commerceone.com>]

A few events in recent weeks have caused me some concern and I'd like to
propose that the TC discuss them in a courteous and careful manner.  First,
as we all have known from the beginning of this TC's efforts, there are
patent infringement lawsuits underway between Microsoft and Intertrust.
We've been repeatedly told by Content Guard that its patents were supreme in
the DRM domain  - I can clearly recall Brad Gandee saying that he'd welcome
any direct challenge to the Content Guard patents - but the absence of
Intertrust from our TC has always troubled me because of the uncertainty it
raised about the implementability of our specifications.  Whenever this
issue was raised, we were told that it was "out of scope" for a technical
TC.  I disagreed, but like many here, perhaps I have engaged in wishful
thinking that the Intertrust lawsuit would just go away.

But it is hard for me to believe that Sony and Phillips would spend nearly
half a billion dollars to acquire Intertrust, whose only assets are its
patent portfolio (26 according to some news reports), if the infringement
claims against Microsoft were baseless.  Sony had a representative in this
TC for a while, but it is no coincidence to me that he seems to have dropped
out just before the announcement of the Intertrust acquisition. So we have
to assume that the litigation will proceed and that it will be successful,
and we have complete uncertainty about the viability of our work products in
this TC until this is resolved. I have google'd many times looking for any
statement by Microsoft or Content Guard about the Sony/Phillips move but
haven't seen any.  Can anyone in this TC interpret this with any more
precision?

In any case, I think it is irresponsible for the TC and OASIS to proceed to
develop a DRM standard while ignoring the implications for potential
implementers of the infringement litigations. I can believe that this
discussion may be out of scope for the TC, but it is surely in scope for
some part of OASIS, and I think we deserve more than the "heads in the sand"
response we have gotten.  We need to demand that the OASIS board provide
some leadership.

I believe that it is essential for OASIS to take up this matter given the
W3C's recent decision to impose a royalty-free requirement on all of its
recommendations.  You don't need a weatherman to know which way the wind is
blowing on the RF vs. RAND debate for crucial Internet and XML
specifications.  OASIS has become an outlier, and it needs to respond to the
will of its members to stay in synch with industry preferences.  A few
months ago this TC, by a very narrow margin, refused to allow the RF
requirement to be considered. I think it is time to revisit this issue.

In addition to the uncertainty created by the Intertrust patents, I believe
we now face greater uncertainty with respect to the Content Guard ones.
Some people in this TC might still be confident that Content Guard will
license its patents on RAND terms.  But we have been shaken by Content
Guard's recent last-minute declaration to OASIS (Bruce Gitlin, November 26)
that it believes that its patents are relevant to any implementation of the
XACML specification.  This disclosure was not made until AFTER the committee
had approved the specification to be submitted to OASIS.  Furthermore, the
Content Guard disclosure offers no useful information about what RAND really
means. I am particularly troubled by the "escape clause" of "then current"
in the phrase "These licenses will be provided under reasonable and
non-discriminatory terms and conditions, in accordance with ContentGuard's
then current licensing practices. 

 I do not wish to impugn Content Guard's motives in acting this way -
perhaps it is a case of the right hand not knowing what the left hand is
doing - but it raises even greater concerns about the implementability of
the specifications we are developing here.

So I respectfully request that these issues be on the agenda for the next TC
meeting.

Robert J. Glushko, Ph.D.
Engineering Fellow  
One Market Street, 13th Floor Steuart Tower
San Francisco CA 94105
415-644-8731