Open Season on Open Standards

The increasingly heated debates about the traditionally dull area of computer standards is testimony to the rise of open source. For the latter absolutely requires standards to be truly open - that is, freely implementable, without any...

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The increasingly heated debates about the traditionally dull area of computer standards is testimony to the rise of open source. For the latter absolutely requires standards to be truly open – that is, freely implementable, without any restrictions – whereas in the past standards were pretty much anything that enough powerful companies agreed upon, regardless of how restrictive they were.

In the face of the continuing move to such open standards, there has been a rearguard action by traditional proprietary software companies to push FRAND – Fair, Reasonable And Non-Discriminatory – as an acceptable default for "open" standards. Except that it is not, as I have discussed at length before.

Aside from its incompatibility with open source software – which means excluding the most vibrant part of the computer world – FRAND-based standards don't even succeed on their own terms. That can be seen in the increasing concern about the use of "standards-essential patents" to block rivals. Apple is accusing Motorola of doing that, and the European Commission is starting to make threatening noises about the practice.

This shows the folly of allowing companies to have such a stranglehold on standards – and why we need to move to restriction-free (RF) licensing. That would ensure a truly level playing field, and would avoid the danger of arguments breaking out afterwards about what exactly "fair and reasonable" means, since different companies will have different interpretations, and will always change their minds if it suits them.

The usual objection to this is that companies that claim to own patents that are vital to standards would lose out, but that's not the case. Having your technology adopted for an international standard is a huge benefit: it places you, your engineers and your technology at the heart of developments in that field. It gives you a headstart for the future, since it is easier to set the direction there if developments are based on your earlier work. That's crucially important in a sector that moves at a far faster pace than it did twenty years ago.

Given this competitive advantage, it is only fair that a company should permit restriction-free licensing of its patents – to expect payment as well as the market power that accrues would be a disproportionate reward.

Against that background, the Cabinet Office's consultation on open standards is timely, although it is rather overshadowed by the shameful series of events that preceded it. That said, the main document – available online or as PDF - possesses the virtue of being short and well written.

Chapter 1 is on "Criteria for open standards", and includes the following commentary on the European Interoperability Framework v2 and its FRAND problem:

The European Commission's EIF version 2.0 does not provide a definition of open standard, but instead describes ‘openness', in terms of the following criteria in relation to specifications: "All stakeholders have the same possibility of contributing to the development of the specification and public review is part of the decision-making process; the specification is available for everybody to study; intellectual property rights related to the specification are licensed on FRAND [(Fair) Reasonable and Non-Discriminatory] terms or on a royalty-free basis in a way that allows implementation in both proprietary an open source software."

There is, however, no universally agreed definition of FRAND and in practice some of the terms adopted may present difficulties for the open source software development model in relation to patents and royalty payments. Software that is open source must be provided under one of a range of recognised open source licences . Some suggest that the most commonly used of these licences do not allow the development of software that requires royalty payments (Valimaki and Oksanen, 2005). In relation to software, standards must be compatible with free and open source software licensing terms to enable all suppliers to have fair access to competition for government contracts (Ghosh 2005), therefore the potential issue with patents and royalty payments must be considered.

It's good to see this level of understanding in the consultation, and certainly offers hope that those behind it understand the key issues.

The Proposed open standards specification policy is as follows:

1. Government bodies must consider open standards for software interoperability, data and document formats and in procurement specifications should require solutions that comply with open standards, unless there are clear, documented business reasons why this is inappropriate.

There's obviously some wiggle room there: "business reasons" might mean anything...

2. For the purpose of UK Government software interoperability, data and document formats, the definition of open standards is those standards which fulfil the following criteria:

are maintained through a collaborative and transparent decision-making process that is independent of any individual supplier and that is accessible to all interested parties;

are adopted by a specification or standardisation organisation, or a forum or consortium with a feedback and ratification process to ensure quality;

are published, thoroughly documented and publicly available at zero or low cost;

as a whole have been implemented and shared under different development approaches and on a number of platforms from more than one supplier, demonstrating interoperability and platform/vendor independence;

owners of patents essential to implementation have agreed to licence these on a royalty free and non-discriminatory basis for implementing the standard and using or interfacing with other implementations which have adopted that same standard. Alternatively, patents may be covered by a non-discriminatory promise of non-assertion. Licences, terms and conditions must be compatible with implementation of the standard in both proprietary and open source software. These rights should be irrevocable unless there is a breach of licence conditions.

The first four points are pretty standard, but point five is the crucial one. It's good that it leads off with "royalty free and non-discriminatory", but it then throws in the new idea of "a non-discriminatory promise of non-assertion". This is probably standard legalese, but since I've not come across this before , I can only guess what it means – presumably something along the lines that patents in standards aren't licensed for zero cost, but an undertaken is given that they will not be asserted against those using them in the context of the standard. But it's hard to see what the point of that is – it's effectively RF, but without the guarantees. I'd be interested to hear what others think.

There's yet more wiggle room in the following points:

4. Standards for software interoperability, data and document formats that do not comply with the UK Government definition of an open standard may be considered for use in government IT procurement specifications if:

the selected standard is outside the scope of this policy; or

they are required to fulfil an international obligation/regulation; or

an appropriate open standard does not exist and is not imminent; or

there is a demonstrable economic benefit for the Government in using an alternative standard; and

the selected standard supports software interoperability, information/data portability, is non-discriminatory and implemented on a number of platforms from more than one supplier.

Any standard specified that is not an open standard must be selected as a result of a pragmatic and informed decision, taking the consequences into account. The reasons should be fully documented and published, in line with the Government's transparency agenda.

In particular, that "demonstrable economic benefit" seems to me to be a big loophole: it's easy to imagine some large software company making the UK government an offer it can't refuse because of the "demonstrable economic benefit" it would bring, without open standards being a consideration at all.

Chapters 2 and 3 of the consultation concern two specific issues: "Open standards mandation" (is that really a word?) and "International alignment" - in other words, how the UK's open standards policy would fit into the European context. I'll address both of these in my next post, in which I'll publish my answers to the questions posed at the end of each chapter in the consultation.

Update: For a definitive introduction to FRAND licensing, don't miss Any Updegrove's "Everything You Always Wanted to Know About FRAND (But didn't know who to ask)"

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