Explaining the Open Web Foundation: New Kind of Legal Framework

OWF The Open Web Foundation emerged out of communities such as OAuth and OpenID. These communities represents a group of individuals, some working for large companies, who have a passion for a common use case or technology. These individuals came together and with little internal conflict, were able to produce a decent specification which won quick adoption. The success of the OpenID and OAuth efforts inspired others to launch their own efforts.

However, many of these communities operate without any legal framework. There are two main legal issues involved: intellectual property rights (IPR), and anti-trust. The Open Web Foundation, or OWF, is currently focused on addressing the IPR needs of such communities. It is doing so by bringing together experts and advocates from different companies and communities such as Google, Yahoo!, Microsoft, Nokia, Six Apart, as well as Open Source advocates.

The OWF IPR framework breaks the process into three components:

  1. Beginning: An upfront contributor license agreement (CLA). The CLA deals with copyrights, making sure that contributions posted to a mailing list or other places can be incorporated into the specification. The CLA also accomplishes two more objectives early on. First, it gets people to start thinking about IPR and start the process with their employer to get involved (if you work for a company, most likely they own any intellectual property you create). And second, it locks-in the licensing terms used at the end of the process, assuming the community is successful at producing a specification they can all agree on.
  2. Middle: A community best-practices governance model. It is hard to come up with a single process by which communities should operate. A community of 3 best friends is very different than a community of 30 online contacts. But there are certain things that apply to many different communities and how they should apply this legal framework. The idea is to produce a guide which communities can use as the basis of their governance structure. This guide will tie in together the CLA and FSA components.
  3. End: A final specification agreement (FSA). A legal agreement signed by all contributors which offers certain legal protections to those implementing or using the specification. The OAuth License is an example for such agreement. The main focus of this document is ensure anyone can implement and use the protocol freely without fear of litigation from any of the named contributors.

The OWF legal framework places the IPR steps at the beginning and end of the specification process, creating entry and graduation requirements for projects. The process intentionally leaves a significant part of its enforcement up to the community using non-legal tools.

What are the process’ shortcomings and how are they being addressed?

The process does not guarantee that the community work will produce a specification. Since the FSA is signed at the end, only after a final specification is produced, companies may refuse to sign it, putting the entire effort into question. In addition, the process doesn’t protect early adopters as their work will be based on an unlicensed specification (but this is a known issue in many standards bodies as well).

The short answer to how these concerns are addressed by the foundation process is: by the power of the community. The process is based on the strong belief that the community has the power to self regulate and reach the necessary consensus. Instead of requiring unanimous voting or a specific process to remove contributions, the foundation is letting each community self regulate itself and obtain the necessary signatures to produce a final specification. This is where the best-practices guide should help.

The OWF process is not for everyone. Large communities with conflicting needs are better off using a more traditional process such as those offered by standards bodies.

What kind of protections does the legal framework offers?

The two most important protections provided by the process address both individuals and companies. The first protection is the guarantee that any final specification following the OWF process is offered freely and implementers cannot be sued by any contributor (the risk of being sued by non-contributors always exists).

The second protection is for companies with a patent portfolio, having a process in which they can first evaluate the risk to their portfolio during the CLA step (by studying the project outline and making sure it doesn’t overlap with their properties), and at the end by getting to review the final specification before agreeing to the FSA. This protection is critical for the community to grow, for individuals to be able to contribute while employed, and for specifications to develop organically within the community and not during an upfront (legal-heavy) scope process.

The process also ensures that all copyrights are licensed appropriately and that specifications can be distributed freely.