(Still) Defending Openness in the EU

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One of the great things about the increasingly blog-driven world of information is that there is much more give and take between writer and readers than in the old, top-down MSM approach. A good example of that discourse can be found in two postings concerning the EU's plans to mandate royalty-free open standards as a core part of its interoperability framework for pan-European e-government services.

One of them was here on Open Enterprise, while the other is to be found on Matt Asay's Open Road blog, which in many ways takes a similar view of the open source business world, but from across the pond (although Matt actually works for the UK open source company Alfresco.)

Both posts now have extensive postings from Mark Blafkin, who is Vice President for Public Affairs at the Association for Competitive Technology (ACT). It bills itself as “protecting small business innovation”, but it also boasts “several Sponsor Members including eBay, Microsoft, Oracle, Orbitz and VeriSign.” Significantly, its offices are located in Washington in the US, and in Brussels in the EU: in other words, it's a lobbying organisation aimed at swaying the two most powerful political machines.

Mr Blafkin's comments are worth reading in full, because they provide fascinating insight into the current tack taken by those pushing agendas based around proprietary software and intellectual monopolies. I've added a few quick comments myself to the posts mentioned above, but here I'd like to explore further two major themes that emerge from Mr Blafkin's arguments.

On Matt's blog he writes the following:

the real crux of the problem with the EIF is that they have redefined the concept of open standards based on a lot of lobbying by Free Software ideologues. As you well know, the definition of "open standards" used by the majority of the world's standards bodies INCLUDES the concept of RAND licenses.

That's certainly true, but glosses over the fact that the world's standards bodies have hitherto been cosy clubs of those who purport to own intellectual monopolies on various aspects of technical standards. It was therefore only natural that they should all agree to define standards in such a way as to bolster those barriers to entry they all owned in some form or another.

And this is precisely why it is necessary to move away from RAND, which allows licence fees to be charged, to royalty-free, as the EU wishes, in order to provide a truly level playing field without barriers to entry of the kind erected by RAND licensing.

Mr Blafkin goes on:

The EIF excludes any standards that require royalty payments of any kind or include any restrictions on use/redistribution. This is designed to meet the Free Software community's demand that EVERYTHING be implementable in GPL code. However, these requirements are both problematic and completely unnecessary. It is problematic because so many of the world's most commonly used technologies are based on standards that do not meet the EIF's test. GSM, WiFi, MP3, Bluetooth, DVDs, etc., etc, etc.

Again, those standards may well not meet the EIF's test, but that's because they were drawn up in a world where RAND was the norm, for reasons stated above. The point is that the EIF's policy is about the future, in the new landscape of openness that now obtains. What it presumably says – it's hard to say without seeing the final version, not yet released – is that standards employed by the EU going forward need to be royalty-free.

Interestingly, the EU is not alone in making the move from RAND to royalty-free. Here's what the World Wide Web Consortium, the guardians of the Web, wrote on the subject in its draft patent policy:

In developing a new patent policy for W3C Activities, our goal is to affirm the Web community's longstanding preference for Recommendations that can be implemented on a royalty-free (RF) basis. Where that is not possible, the new policy will provide a framework to assure maximum possible openness based on reasonable, non-discriminatory (RAND) licensing terms.

And here's what it finally chose:

In order to promote the widest adoption of Web standards, W3C seeks to issue Recommendations that can be implemented on a Royalty-Free (RF) basis. Subject to the conditions of this policy, W3C will not approve a Recommendation if it is aware that Essential Claims exist which are not available on Royalty-Free terms.

To this end, Working Group charters will include a reference to this policy and a requirement that specifications produced by the Working Group will be implementable on an RF basis, to the best ability of the Working Group and the Consortium.

That's a significant shift, and one that was made back in 2004. Here in 2008, the arguments in favour of royalty-free that were put forward during the discussion of the W3C draft – and accepted - are now even stronger. In other words, RAND may have been the past, but royalty-free is decidedly the future.

The other main argument from Mr Blafkin can be found in a comment to my earlier post:

Finally, you are too smart to be peddling blatant falsehoods like "anything but royalty-free will lock out all open source solutions, which are unable to charge their users." Mr. Tiemann's company charges his users a whole lot for use of its software. And it integrates both proprietary and non-GPL components in order to implement standards and interoperability protocols that cannot be implemented in GPL. Open source companies have NO problem implementing RAND standards, it is only companies that dogmatically follow the Free Software religion that can have issues.

Well, I hate to disappoint his generous if misplaced confidence to the contrary, but it seems that I am not in fact “too smart” to be peddling this line, probably because it isn't a falsehood, blatant or otherwise. Mr Tiemann's company, Red Hat, does indeed charge its users “a whole lot”, but not so that it can pay licensing fees for blobs of non-free code. Because of that income, it *can* pay such fees to create solutions that are not open source, and has decided to do so for certain code, but that is not an option for every project, particularly fledgling ones starting up in archetypal bedrooms. It's no accident that RAND licensing forces open source to become more like the proprietary software world, where only the deep-pocketed can play.

Alongside those that simply cannot afford licensing fees, however “RAND” they may be, there are, of course, those who would never pay them anyway. About them, Mr Blafkin writes:

it is only companies that dogmatically follow the Free Software religion that can have issues

There we have it: only those who are willing to pay intellectual monopoly taxes in the form of licences are “real” open source companies; anyone else is simply a zealot, “dogmatically” following the Free Software religion, and therefore incapable of offering rational arguments. Note how free software has suddenly become a religion here, and therefore something whose views can safely be ignored without further ado in any “serious” discussions – with the European Commission, for example.

I predict we'll be seeing much more of this kind of demonisation, as companies clinging to outdated software business models based on controlling customers, rather than collaborating with them, try to turn open source into a beast they can tame through subtle but effective constraints like RAND licensing.

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