Whatever the BSA Says, FRAND is no Friend of Europe

I see that my old mates the Business Software Alliance are a tad concerned that the European Commission might do something sensible with the imminent European Interoperability Framework (EIF): In its current form, EIF could be interpreted to...

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I see that my old mates the Business Software Alliance are a tad concerned that the European Commission might do something sensible with the imminent European Interoperability Framework (EIF):

In its current form, EIF could be interpreted to encourage public administrations to extend preferences to "open specifications" when establishing eGovernment services, suggesting that standards must be free of intellectual property rights (IPR).

Can you imagine that? It might be interpreted as encouraging open standards – how truly shocking. But never fear, the BSA cavalry is riding to the rescue to ensure that nothing so outrageous should be allowed to happen. Here's one of its infallible arguments:

The wording, the letter said, is "ambiguous" as it "could be read to mean that the most innovative European and foreign companies are not welcome to participate in standards processes if they own patents in the relevant technologies and seek compensation for their inventions."

Wow, that's a killer of an argument, isn't it? I mean, it's not as if the most innovative European and foreign companies would participate in any standards-setting process if they weren't able to seek compensation for their inventions? It's not as if they might agree to something like this:

The W3C Patent Policy governs the handling of patents in the process of producing Web standards. The goal of this policy is to assure that Recommendations produced under this policy can be implemented on a Royalty-Free (RF) basis.

Oh, but wait: that W3C would be the World Wide Web Consortium that just about every innovative company active on the Web works with – and where they have no difficulty agreeing to to this royalty-free policy, even if they are not "compensated" for their "inventions". So if they can all do it for the W3C, perhaps they can do it for the EIF, no? And the reason they might want to do that for the EIF is exactly the same as the reason why they do it for the W3C: because having their technology as part of these standards – even if they are not "compensated" - is actually a huge competitive advantage that is, itself, well-worth having.

The BSA's other killer argument is the following:

The EU has consistently endorsed FRAND, including in EU policies on IP, standards, competition, and in practice, many of today's most widely-deployed open specifications incorporate patented innovations that were invented by commercial firms, which are licensed to implementers on FRAND terms, including WiFi, GSM, and MPEG.

That's certainly true, but that's because those are all old standards, drawn up before free software was an important player in the computer world. Today, we need to ensure that we have a truly level playing field that allows the most innovative programs being written as free software to be available to the citizens of the European Union alongside traditional proprietary ones. To do that, we need royalty-free licensing, not FRAND, which excludes the GNU GPL, still by far the most important free software licence. Fortunately, we have the example of the W3C to follow here: it has shown that royalty-free licence is not only acceptable to major software companies, but works extremely well, allowing the maximum number of participants in the standards-setting process.

The European Commission is therefore quite right to follow the W3C when drawing up modern standards for the 21st century, rather than being held back by older approaches that were drawn up for quite a different world. Let's hope the Commission is not led astray by the BSA's special pleading for the unfair and inefficient FRAND, which is most certainly not a friend of Europe in this case.

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