Outside the United States
Request for Comments and Announcement of Workshop on Standard-Setting Issues, Project No. P111204
I realize the FTC is a U.S. body, but standards are an international issue, so this is of relevance to people outside the United States too. I would like to raise the issue of "reasonable and non-discriminatory (“RAND”) terms" as it relates to the development of free (in both senses) and open source software. The RAND concept is likely not considered problematic outside of the software realm, but within software it is. There is an established base of developers and companies who wish to offer free-of-charge and freely-licensed implementations of standards. In such a scenario, any license fee is by definition 'unreasonable': if you are writing an implementation for the general good and do not intend to profit by it, you have no income stream with which to pay a patent license. Additionally, the definitions of open source and 'free software' (as distinct from free-of-charge) require that the software be re-distributable without any restriction beyond the initial license, so a distributor of open source or 'free software' must hold a patent license grant covering all possible redistribution of the software, not merely those it distributes directly to, in order to avoid conflict with the terms of the software license. Free and open source implementations of major standards provide a clear public benefit, and are often vital to the wider free and open source software ecosystem. I believe, therefore, that standards bodies should give due consideration to the ability to create and distribute free and open source implementations of their standards. I propose that standards-setting organizations should require members which hold patents relevant to standards to license their patents appropriately for free and open source software development. Specifically, they should be required to make a general cost-free license grant, compatible with the terms of accepted free and open source software copyright licenses, for the purpose of developing and distributing implementations of the standard which are themselves cost-free. It would still be acceptable to charge those creating and distributing non-free implementations of the standard a license fee on RAND terms.