The W3C and its Patent Policy Controversy:
A Case Study of Authority and Legitimacy in Internet Governance
Andrew L. Russell
The Johns Hopkins University

This paper argues that the preservation of openness and innovation in Internet technologies requires more than code; it requires institutions to govern code in a manner that is consistent with the values of a broad community of stakeholders. My specific claim is that the World Wide Web Consortium (W3C), which is the body responsible for developing technical standards for the World Wide Web (Web), adjusted its mechanisms and policies in order to preserve a balance between centralized authority and decentralized, grassroots public inputs. By virtue of its efforts to accommodate larger participation throughout its recent patent policy dispute, the W3C strengthened its claim to be a legitimate regulator of the Web.

The body of the paper contains four sections. The first section examines how the technical, political, and intellectual values of the Web’s creator, Tim Berners-Lee, shaped the creation of the Web. The second section underlines how Berners-Lee designed the W3C to include mechanisms both to maintain centralized control as well as to facilitate grassroots “rough consensus.” The third section looks to a specific issue—the debate over the W3C’s policy for allowing patented material in W3C standards—in order to evaluate how the W3C responded to critical feedback from Web developers outside the W3C Membership. The fourth section draws on arguments from political philosophy to show how the diligence and responsiveness of the W3C’s Patent Policy Working Group enhanced the legitimacy of the W3C as a governing body.

This history of the Web and W3C can help us understand more clearly how qualitative concepts such as “authority” and “legitimacy” can operate in Internet standards setting organizations and consortia. One clear lesson from the Web and W3C is that a single individual can play a pivotal role. Indeed, the effectiveness and legitimacy of the W3C depends directly on Berners-Lee’s commitment to managing the Web in a decentralized, consensus-based manner. I conclude that organizations like the W3C will demonstrate their legitimacy only insofar as they are able to deliberate and incorporate, through experimentation with formal and informal mechanisms, the perspectives of all interested stakeholders and the broader public.