Non-normative changes

[annevk]

I was somewhat under the impression that non-normative changes could be contributed without signing the agreement (e.g., typos, URL fixes), but nothing seems to support this. Thus far it hasn't really been a problem, but I definitely have myself just walked away from a project that wouldn't accept a clarification in a README without a special dance.

[othermaciej]

SG briefly discussed this in a call today. No final conclusion, but here's some thoughts:

• There's defininitely no exception for non-normative changes in the current IPR policy.
• Being non-normative would mean that a change likely does not implicate patent rights, but it could still be covered by copyright. Our contributor agreement covers both patent and copyright.
• Some believe that certain kinds of changes are too trivial to be copyrightable. While a lengthy non-normative example likely is still subject to copyright, a simple typo fix or URL correction may not be.
• We currently don't have an exception even for changes that are so simple they are not.
• Many open source projects require an agreement of some form for any PR or patch, so the IPR policy is not necessarily wildly outside the norms of the open source community.
• We can ask counsel whether it would be appropriate to add an exception for trivial changes that are below the copyrightability threshold.

[domenic]

The main issue here is that for individuals who work in the field of web technologies, getting their employer to sign the CWA can be a significant hurdle. It is in this sense that the CWA is further from the norms of an other open source projects' CLAs. Thus, first-time contributors may be discouraged from contributing even small, non-normative fixes to WHATWG standards, which hurts the vitality and growth of the community.

I think it would be ideal if we could accept such contributions without requiring a signed CWA. (Although we would still encourage it as much as possible.)

I could even imagine getting folks hooked on contributing small fixes, so that when they want to contribute a normative change, they can more strongly advocate to their employers for signing the CWA in full.

An alternate solution would be adding a third option to the CWA, which signs you up for no workstream patent commitments but does sign you up for copyright, so that it would act more like a regular open source CLA.

[othermaciej]

For trivial contributions and non-normative contributions, we might be able to get agreement that such changes can be accepted with no agreement.

For non-normative but also non-trivial contributions, a copyright-only CLA seems like the best approach. Maybe this is also good enough for non-normative and trivial contributions.

I somewhat worry that anything like this will be used to evade patent licensing requirements.

[othermaciej]

For reference, are there any specific contributors who were unable to contribute but would have been helped by this change? Concrete examples would help.

[michaelchampion]

Yes, concrete examples would help.
This exposes a dilemma: We want to make it as easy as possible for people willing/able to make patent commitments to participate while making it as hard as possible for people unwilling to make patent commitments to influence the specs. If there are a significant number of real people who are willing to participate but unable to convince their lawyers to sign the CWA (or unwilling to invest the time dealing with their management to drive such a decision with the lawyers), the SG needs to deal with that reality somehow.

Or to put it another way: We hoped that it would be no harder for experts in web technology to sign the WHATWG CWA than it is to sign typical open source CLAs. If that's not true, we have a problem. But if it's just a matter of educating people that open specs expose the same sorts of copyright and patent issues that open source projects have come to grips with using CLAs, then we need to work on that. So are there people employed in the field of web technology whose employers allow them to sign OSS CLAs but not the WHATWG CWA? If so, how could we mitigate that?

[sideshowbarker]

For reference, are there any specific contributors who were unable to contribute but would have been helped by this change? Concrete examples would help.

Me.

Specifically, I raised whatwg/html#3434 on January 31st but it’s now indefinitely blocked on the general CWA issue and specifically #62 and/or this issue.

And that PR is sort of the most non-substantive change that could be imagined. It’s just updating the URLs for a couple spec/references that have moved to new locations.

And while that change is kind of at the extreme range of non-substantiveness among the changes I have contributed to the HTML spec so far, most (if not all) of the few-dozen changes I’ve contributed to the HTML spec so far have been non-substantive in terms of the intended purpose of the CWA — in that most (or nearly all of them) have been changes to parts of the spec other than the parts that define UA requirements.

To be more specific: The changes I contribute are mostly either purely editorial or are changes to the parts of the spec that define document-conformance requirements aka “authoring” requirements — a lot of which are driven by related work I do in updating and maintaining the backend for the W3C HTML Checker (validator).

Anyway, as far as I can see, none of those kinds of changes have anything to do with content that relates to anything that could infringe on any patented essential claims that might exist. So the CWA (in its intent at least) is irrelevant to those changes.

That reminds me: I think this issue shouldn’t be about non-normative changes vs. normative changes. Instead it should be about changes to content that could infringe on any patented essential claims that might exist vs changes that don’t.

It seems to be that better wording to use for that distinction is “substantive” vs ”non-substantive”. I’m pretty sure that in some of the corresponding process/tooling the W3C uses, that’s the actual term.

But regardless of terminology, such a distinction is important. I say that because the changes that I make to document-conformance requirements in the spec are in fact normative changes — because just like the statements of UA requirements, those document-conformance requirements are stated with RFC 2119 normative language. They just state them for a conformance class other than UAs.

But if we were to define “substantive” to mean “changes to content that could infringe on any patented essential claims that might exist”, then those changes I make to document-conformance requirements, while normative, would be considered non-substantive (and so not require any CWA commitment).

[sideshowbarker]

It now occurs to me that one very concrete way we can categorize a change is by looking at whether the change is of the kind that necessitates writing new web-platform-tests/testharness.js tests — or changing existing web-platform-tests/testharness.js) tests.

We’ve already had a contribution requirement in place that if a change introduces a new algorithm or whatever — or changes an algorithm — for a feature that’s exposed to Web content in such a way that web-platform-tests/testharness.js tests could be written or updated to test UA behavior for it, then such tests must be written or updated for it before it can actually be merged into the spec.

So to judge whether a particular contribution requires CWA signing, one concrete way we could make that determination is on the basis of whether it requires new wpt tests or updates to existing wpt tests.

By that metric, then, changes made to, e.g., document-conformance requirements — while normative — don’t require new wpt tests or updates to existing wpt tests, and so don’t affect anything that’s exposed to Web content, and so couldn’t infringe on any patented essential claims that might exist.

[sideshowbarker]

For reference, are there any specific contributors who were unable to contribute but would have been helped by this change? Concrete examples would help.

That seems a bit like begging the question (or whatever the proper rhetorical term is). I mean, if somebody has a specific change they want to contribute but in the process of preparing a patch/PR or issue they see the CWA requirements and decide they’re not going to be able to comply with the obligation to get their employer to sign, then we may (likely) not ever hear from them. I think there’s a high chance that at that point they just say the hell with it — especially if all they want to submit is a fix for a typo or something else non-substantive — and they just walk away. And when that happens we lose a contributor without ever even knowing we had one.

And we’ve only had the CWA requirement in place for a very short time, so I think at this point we really shouldn’t expect to have a lot evidence (concrete examples) of people unable to contribute due to it.

Also rather than the question are there any specific contributors who were unable to contribute but would have been helped by this change, I think another way of looking at it would be to consider how many of, say, the 100+ people who had already contributed to the HTML spec before we put the CWA requirement in place wouldn’t have been able to contribute if the CWA requirement had been in place at the time. Or now won’t be able to contribute further.

The way we could find out is by asking some of them.

Otherwise, as far as data/evidence on how the current CWA requirement is affecting contributions, I think — for the reason I stated at the beginning of this comment — that it’s very hard to collect that data. So I believe that with the current CWA requirement in place, the evidence we’ll likely instead end up seeing over time is just a general apparent decrease in the rate of contributions we’ve now been getting relative to the rate of contributions we got prior to the CWA requirement being in place.

That’s something actually measurable but given that it would take time to get the data to measure it, I hope we’d not end up waiting to make any changes until we’ve seen that measurable decrease in contributions that I at least personally think we’re likely to up with if we don’t make some refinements to the (new) current requirements we’re placing on contributors.

[dbaron]

I think tying to something like whether web-platform-test changes are needed supposes a meaning of "implementation" that I don't think is justified. I think "implementation" in its original sense (of putting something into use or practice) applies to both the producers and consumers of a format, even if in recent years we've taken to talking about the implementations of file formats used on the Web as being only the software that consumes the format, and not software or individuals that produce the format. In the definition of Essential Claims or Essential Contribution Claims I've always interpreted "implementation" as the original (broader) meaning.

[othermaciej]

I agree with @dbaron. Normative requirements on authors, authoring tools, or conformance checkers can also potentially involve patents.

I also need to stress that under the new IPR policy we need a copyright grant. So essential patent claims are

@sideshowbarker the SG has discussed your other issue and definitely wants to find a way for you and other W3C staff members to be able to contribute. We have had private discussions with our lawyers about the topic. I suspect excluding some kinds of contributions from CWA coverage will actually be harder than finding a solution for W3C participation.

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Finally, just so it's clear for the record, we have talked about a few different categories of contribution:

• Changes that affect normative implementation requirements. These clearly require both patent and copyright grant to enable us to uphold the WHATWG Principles. They also need tests in WPT.
• Changes that affect normative requirements for authors or other conformance categories besides mainstream UAs. Likewise require both patent and copyright. Patents can affect software other than browsers. May not need WPT tests.
• Changes that don't affect normative requirements but which contain significant original material. Requires at least a copyright grant. But we may be imposing a tricky judgment call on editors to ask them to judge whether something is potentially pulling in new essential patent claims. Current IPR policy does not require editors to know or decide anything at all related to patents.
• Changes that don't affect normative requirements and which are so trivial that perhaps they wouldn't even be considered copyrightable subject matter. Might not require any grant, but creating this category is potentially risky.

I'd like to make the bar to contributing as low as possible. But making major changes to the contributor agreement is something that lawyers are extremely wary of, and we would not want to do it without their input.

[annevk]

I think basically what I'm looking for is something similar to https://www.w3.org/2018/Process-20180201/#correction-classes. In W3C repositories it seems pretty common to dismiss the IPR bot for something that's non-substantive.

On the other hand, thus far we haven't had much of an issue getting folks signed up, so maybe we can leave this be for now and have a slightly higher bar.

[vfournier17]

@annevk I would agree. Let's see if we have an actual problem to solve before trying to come up with a solution.

[domenic]

We do have an actual problem, don't we? See upthread; specifically #63 (comment).

[othermaciej]

@domenic We have a problem for the specific case of W3C staff, which the SG is endeavoring to solve through back channels.

While it might make sense to make an exception to the requirement to sign CWPA for certain classes of trivial / non-copyrightable changes, I don't believe it would actually solve the problem cited in that comment, which includes a desire to make changes that are clearly copyrightable and in some cases normative (just not for implementations).

I think our best path here is to continue to work through the issue with W3C leadership, and watch for other problem cases to come up.