The problem lies with the word "non-discriminatory". This means that if any W3C standard incorporates patented ideas, the same licensing terms must be applied to all standards.
It will be expressly forbidden for preferential terms to be offered to free software projects. If anyone pays royalties, all must.
But, of course, free software by its very nature is put together by enthusiasts for love, not money. They would be unable to pay licensing fees themselves, and be equally unable to demand money from their users. So the reasonable-sounding "non-discriminatory" element of Rand actually means that open source projects will be unable to implement any W3C standards that incorporate patented techniques requiring royalty payments.
Cynics might say that this is just too bad, and simply reflects the harsh economic times in which we find ourselves. But a moment's reflection shows that things are not as simple as that.
The leading Web server for public sites by a huge margin is Apache. Apache is open source, and so would probably be unable to incorporate any new patented technologies in later releases. Users who wished to employ such W3C standards would be forced to switch to commercial alternatives.
The same is true for browsers. Open source projects such as Mozilla or Konqueror would be unable to implement the latest technologies, and users who wanted to take advantage of them would be forced to use a commercial browser.
In other words, the apparently reasonable Rand option would effectively shut down all open source development of W3C standards, with patented elements requiring royalty payments. Clearly, free software programmers are not going to sit back and accept this situation. They will respond by creating their own, truly open, royalty-free standards, as they have done in the past.
Companies such as Microsoft are unlikely to support these standards, so the Web will fork, with one part accessible only through proprietary products, the other only with free ones. The power of a single, universally-accessible medium would be lost - and all thanks to the W3C.
In fact, the ramifications of the new patent policy are so dire that some have suggested that it is the clever ploy of someone who wishes to kill the idea forever by floating it in this way, drawing criticism, and then shelving it. Unfortunately, this comforting theory is undermined by the fact that, unusually, the W3C has been very secretive about these changes.
Its invitation to comment on the proposals was mysteriously only picked up by ordinary users at the very end of the comment period, as the sudden flood of messages at http://lists.w3.org/Archives/Public/www-patentpolicy-comment/ makes all-too plain. Not surprisingly, these comments are overwhelming hostile - see the typically robust and well-argued posting from Alan Cox, number two in the Linux development team, for a full discussion of the proposals' many and profound flaws (http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Sep/0131.html).
Even the initial extension graciously granted by the W3C in the face of this firestorm of protest was pathetic - a mere 11 days.
It is quite clear that the consortium is trying to railroad this through with as little discussion as possible.
The patent proposal and the way it has been introduced is a total disgrace. It suggests that W3C has, for some mysterious reason, decided to abdicate its role as guardian of open standards and defender of the common user in favour of cosying up to big software companies. Unless it rescinds this pernicious proposal, it is clearly time to look for a new body to replace it - the Apache Software Foundation would be one obvious candidate.
Next week: www 2.0
This was first published in October 2001