[uf-discuss] Voluntary Public Domain declarations now enabled onthe wiki

[Joe Andrieu]

khare at alumni.caltech.edu (Tuesday, July 17, 2007 4:16 PM) wrote:
> [This email is a current copy of the wiki page at 
> Category:public_domain_license ; I wanted to prompt 
> discussion here as well as fold substantive feedback back 
> into that wiki page, of course... Thanks, Rohit]

[snip]

> Disclaimer
> 
>    Unlike other efforts that might come to mind, it's 
> important to note
>    that microformats are not "standards," microformats.org is not a
>    "standards body" (legal sense [13]),
>    and that the microformats admins are not a "legal entity" 
> (and nor do
>    they have any official links to CommerceNet or Technorati, two
>    companies that were influential early sponsors). For that matter,
>    there's no bank account or any other financial standing; 
> if you see a
>    hip new microformats sticker [14] out there, it's a 
> private donation
>    (in that case, by Dan Cederholm).

[snip]
 
> Point of Contact
> 
>    While community members are generally encouraged to discuss matters
>    openly, if you have a specific legal questions, please contact
>    Rohit Khare [24], who has volunteered to be the initial 
> point of contact
>    for the administrators, before starting a discussion on the public,
>    archived mailing lists, IRC, or wiki, since there can be 
> occasionally
>    be legal implications for statements published on the 
> microformats.org
>    domain.
> 
> References
>  13. http://consortiuminfo.org/laws/
>  14. http://www.flickr.com/photos/73921563@N00/639108451
>  24. http://microformats.org/wiki/User:Rohit

Rohit,

Thanks for your efforts to move the uF administrators toward action on this issue.  I appreciate it.  The release into public domain
certainly removes a few complications, although as I discuss here, it also creates some.

I have delayed replying for two reasons. First, you have asked for legal conversations to be handled privately. Second, both the
decision and handling of the decision, while well intentioned, leave me rather dissatisfied with the continued inability of
microformats leadership, to handle this matter in a more open, transparent, and inclusive manner. For both of those reasons, I
wanted to consider what I might say that could be constructive rather than divisive.  I probably fail in that effort, but I am
trying.

For whatever reason, there appears to be agreement among those in charge, that open discussion of these issues is inappropriate.

I don't agree with that and as a result, I can no longer continue to support the judgment that public conversation over community
issues is inappropriate.  In fact, I believe that the avoidance of any public conversation has instead enabled a handful of poor
decisions to severely limit the possibilities of microformats as a community, including creating significant potential liability for
contributors. Perhaps they were not poor decisions, I have only the outcomes and not the intermediary threads from which to draw my
conclusion.

Those individuals who control microformats.org and the microformats mailing list have chosen NOT to incorporate and not to provide
contributors the protections available under the auspices of a standards organization. 

You, collectively, have also decided that the standard community policy should be to release microformats into the public domain.

I find both of those decisions troubling. The first because the protections afforded by an official standards organization (as
discussed in reference 13 above) are fairly significant and as microformats gain in popularity, so does the potential liability and
exposure by contributors.  It is certainly within the rights of those who control the website and email list to /not/ further
complicate their lives with the formation of a new non-profit organization. However, I believe it is now costing, and will continue
to cost, the microformats community significantly.  If the current leadership doesn't want to accept that burden, I recommend
finding people you trust, who will.

The second decision is troubling because releasing IP into the public domain has several well-known problems including loss of
control, which would seem to be improtant if we want interoperability across microformats. It also sidesteps issues related to
current or future patents that overlap microformats. As such, it is a bit of a red herring that leads our attention away from the
more troubling and controversial aspects of intellectual property as it relates to standards development.
 
See the following for a discussion of these problems:
http://consortiuminfo.org/ipr/

Wikipedia is cited as justification for this decision, with the disturbing assertion that future licensing and copyright terms would
most likely change to follow changes in Wikipedia's policy.  With all due respect, arbitrarily following the policies of another
popular web service is no substitute for sound legal advice and reasoning. Our mandate is significantly different than Wikipedia's.
Wikipedia is not attempting to establish its content as standard specifications. We are. 

Finally, the assertion that microformats are not standards is exceptionally disturbing and highlights a particularly myopic strain
of selective legalism. It is true there is no microformat organization that classifies as a standards body--indeed the leadership
and contributors all remain personally liable for their individual actions and potentially for their collective actions. However, it
doesn't take much to build a coherent legal case that microformats /are/ standards, not only because it is clearly stated in the
hCard specification:
===
hCard is one of several open microformat standards suitable for embedding in (X)HTML, Atom, RSS,
===
http://microformats.org/wiki/hcard 
===

But also because the essential nature of microformats is that they represent a /shared/ agreed-upon lexicon and technique for
presenting semantic data in html. Those shared agreements are standards. 

When people use non-standard microformats, they don't work. Operator and Tails won't pick them up. In fact, we refer to such
non-compliant microformats as "unofficial" or "POSH", plain old semantic html.  What's the difference between POSH and microformats?
Microformats have been standardized through a well-documented community process. Semantic HTML has not.

You may not agree with this argument, but I would be surprised if you felt it was so spurious as to be dismissed out of hand in a
court of law.  On the contrary, a court would, IMO, find it compelling enough to require further investigation as to the nature and
scope of the microformats movement, the contributions of its members, and the exact statutory and case law that applies (not to
mention issues of jurisdiction).

I understand the complexities of going "official". It is not something to be done lightly. But these issues aren't going away, no
matter how much the leadership shuts down conversation here and on the wiki.  Hiding from the issue doesn't solve it.

I believe that every contributor here is putting themselves and their company at risk if they develop protectable IP that relies on
microformats.  

It won't serve us to debate that point; rather, I encourage every one of you who is building a business case for microformats to
have your attorney look into (1) what would happen if someone /else/ had a patent that limited your use of microformats and (2) what
would happen if your company should develop a patent that limits the use of a microformat standard that you helped create.  In
particular, ask for their opinion about the legal definition of standards and the risks of anti-trust and anti-collusion laws in
your particular case.

The larger your company, the more important this is, but I would also hate to see this clobber startups who simply made the wrong
call.

Certainly incorporating a formal standards setting organization won't solve all the problems related to IP, and I agree that
ultimately only the courts can decide wether or not microformats are standards in the context of anti-trust law.  However, it is
clear to me that the case is close enough to merit legal review and almost certainly close enough--in a situation of relative
worth--to merit asking a court to decide the matter directly in the form of a lawsuit.

I expect that many of the leadership find this train of thought distasteful. It is, as it stinks of unproductive legal
confrontations. But such are a part of life and business in high tech entrepreneurship and development. Shoving it under the rug
doesn't make it go away.

That's all. I don't know if this will help anything.  Those in charge of microformats have not been responsive to this issue in the
past and I don't hold out hope that this particular piece is moving and eloquent enough to change that.  

I do hope that for at least some of you, it may provide a motivation to validate your own understanding with an attorney as concerns
intellectual property, anti-trust law, and your participation in the microformats community.

Best,

-j

--
Joe Andrieu
SwitchBook Software
http://www.switchbook.com
joe at switchbook.com
+1 (805) 705-8651