There's been some e-mail discussion of my
recent comments about the nature of intellectual property --
whether being conformant to an accredited standard
determines whether property is proprietary or not.
Nothing in that reply or this message,
should be construed as denigrating the standards process, or the importance of
standards.
My purpose in posting the earlier message was
to point out a problematic line of reasoning -- "that which is not standard
is implicitly proprietary".
If you consult with an attorney
about proprietary protection of software or other intellectual
property, you'll find you must take certain explicit
actions to protect your proprietary property rights. Here are a
few excerpts that illustrate my point:
1. "Nevertheless, in order for
proprietary provisions to be effective, there must be an agreement with the
party whose actions the licensor desires to
restrict."
PROPRIETARY PROTECTION OF SOFTWARE BY CONTRACT by
Fred Greguras, Esq. of Fenwick, Stone, Davis, and West, Palo Alto, California.
2. Copyright protection can be forfeited
"if copyright notices are omitted."
3. Copyright notices must be placed "in such a
manner and location as to give reasonable notice of the claim of
copyright."
4. "There are ways of avoiding loss of trade
secrets and proprietary information in connection with required deposits under
current law."
Item 4 refers to deposits with the Copyright
Office. For patent protection, you must go through a registration process with
the appropriate patent office. In other
words, do not assume proprietary status is implicit when you create
intellectual property. There are explicit actions you must take for
copyright or patent protection.
Not being an accredited
standard does not implicitly grant proprietary status.
Of course, there are also developers who want to
make their software freely available. If you want something to be easily
recognized as being non-proprietary, add notices to the source
code. Keywords such as "public domain" are hard to misconstrue. There are
also licenses such as GNU that include some restrictions on subsequent use of
the code.
P.S. When in doubt, consult an intellectual
property attorney.
----- Original Message -----
Sent: Saturday, September 02, 2000 7:42
PM
Subject: Re: XML Schemas/DTD for
HealthCare Industry
Ken said:
>> It's true we do not have a W3C
Recommendation for schemas, but that's not
what determines whether a schema
is proprietary or not. >>
Rachel said:
<< I beg to differ with your
opinion about what constitutes a proprietary
schema vs a "standard".
<<
If you re-read my message, you'll see it does
express an opinion about what constitutes a standard. In fact, it does
not mention the word standard.
Rachel said:
<< In the world of
standards, the label standard is typically reserved for those that have been
approved by a recognized standards development organization, most often
accredited or sanctioned by one of several organizations, such as ANSI, ISO,
UN/CEFACT, and so on. This would also include the IETF RFC's. <<
I'd add there are de facto
standards and de jure standards. Based on your list, you seem to be
making the argument that anything that is not a de jure standard is
proprietary.
We are not in agreement about
this. If I'm deciding whether something is
proprietary, I ask first whether it is public domain (below) or available
without restriction, not whether it conforms to an international
standard.
public domain
n(1832) 2: the realm embracing property rights that
belong to the community at large ...
Consider open
source software and other works that people create and release
to the public domain. The Linux operating system, for example, is
not published as an ANSI/ISO standard or IETF RFC. If we assume your
definition ("something is proprietary if it is not a standard"), then
Linux is a proprietary operating system.
I also disagree with the interpretation that something which is a
standard is not proprietary.
pro�pri�e�tar�y [snip] 4. Owned
by a private individual or corporation under a trademark or
patent.
You can look to encryption algorithms to illustrate the
distinction between proprietary, public domain, and standard. The Tiny
Encryption Algorithm is a non-proprietary encryption algorithm because David Wheeler and Roger Needham placed TEA in the public domain, not
because TEA is an ISO or other standard.
On the other hand, the US government has
accepted Ron Rivest's RC6 encryption algorithm as a
finalist to become the new federal Advanced Encryption Standard. RC6 is
patented technology, so by definition 4 above, it is proprietary. RSA has said it will waive patent licensing
fees if RC6 is accepted as the new encryption standard --
nonetheless, RC6
could be both standard and pro�pri�e�tar�y.
So getting back to my original
point:
If I create a schema, register it with xml.org
and biztalk.org, release it to the public domain, or otherwise make
it freely available, it is not proprietary just because we do not
have a standard for schemas. It is by definition non-standard, but
non-standard is not a synonym for proprietary.
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