How Open is the Open Web Foundation Agreement?

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You'd be hard-pushed to find someone arguing *against* an open Web these days, so on the face of it, this is good news:

The Open Web Foundation is pleased to announce the availability of the Open Web Foundation Agreement (OWFa).

The Open Web Foundation was founded to help developer communities collaborate and share technical innovation on the web, bringing to the world of formats and protocols the same successful grassroots approaches established by the open source community. Modeled after the Apache Software Foundation and Creative Commons, the Open Web Foundation seeks to facilitate the creation and implementation of specifications with legal agreements that make such work simple, safe, and sustainable.

Sounds pretty fab, I think you'll agree – all that invocation of open source, Apache Software Foundation and Creative Commons surely means we're talking about a serious piece of openness here, no?

Well, maybe not. Here's a key bit in the Agreement:

3.1 Patent Non-Assert.

1. The Promise. I, on behalf of myself and my successors in interest and assigns, irrevocably promise not to assert my Necessary Claims against you for your Implementation, subject to the following. This is a personal promise directly from me to you, and you acknowledge as a condition of benefiting from it that no rights from me are received from suppliers, distributors, or otherwise in connection with this promise. This promise also applies to your making, using, selling, offering for sale, importing or distributing an implementation of any subsequent derivative works incorporating the Specification 1) only to the extent that it implements the Specification, and 2) so long as all required portions of the Specification are implemented. This promise does not extend to any portion of the derivative work that was not included in the Specification.

...

3.2. Patent License Commitment. In addition to rights granted in 3.1, on behalf of me and my successors in interest and assigns, I agree to grant to you a no charge, royalty free license to my Necessary Claims on reasonable and non-discriminatory terms solely for your Implementation.

The patent non-assert is “a personal promise directly from me to you”, and not one that can be passed on, I think. Similarly, the royalty-free patent licence is “solely for your Implementation”, and so isn't passed on to new projects that may build on yours.

Now, IANAL, but it looks to me that this is problematic for licences like the GNU GPL, since it means that rights aren't passed on downstream – something that is absolutely vital for free software's licensing model to function. I look forward to hearing some lawyers' views on this issue.

But independently of these details, there's another big problem with the Open Web Foundation. The Mozilla Foundation has been pushing the idea of the Open Web for some time now; the appearance of this new foundation, with its agreement, is likely to muddy the waters around the concept of the open Web considerably. But then, that's maybe what some companies involved in the OWF want...

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