FRAND Is Always Discriminatory

I participated in a study asking about the fairness, reasonableness and non-discriminatory nature of FRAND licensing in the context of licensing of patents in standards. I was surprised to find people there asserting there was no conflict between FRAND licensing and open source software. Here’s a simple explanation why that’s wrong.

Since patent licensing is by definition bilateral, and since open source communities that aren’t run by a single vendor are by definition multi-lateral, any standard which includes patents that require licensing discriminates against true multi-participant open source implementation. By definition, patent licensing as a precondition of implementation of a standard cannot ever be non-discriminatory. Even zero-fee licensing is discriminatory as it still requires implementers to seek permission, the antithesis of open source.

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2 thoughts on “FRAND Is Always Discriminatory”

  1. To quote FSFE:
    > Even in a hypothetical approach where patent royalty rates would be
    > set to zero, the patent holder (usually a large corporation) would
    > still be able to refuse a patent license to a Free Software project,
    > or impose conditions which effectively prevent the project from
    > implementing the standard. Even though recourse through the legal
    > system might be available in theory, in practice the Free Software
    > developers (often small companies) will rarely have the required
    > resources to confront a multinational corporation in court.

    (from http://fsfe.org/activities/os/FSFE-response.questionnaire.pdf)

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