Why This EU Meeting on FRAND in Open Source?

Long-suffering readers may recall that the issue of FRAND licensing in the context of open standards cropped up quite a lot this year. We still don't know what the final outcome of the UK consultation on open standards will be, but whatever...


Long-suffering readers may recall that the issue of FRAND licensing in the context of open standards cropped up quite a lot this year. We still don't know what the final outcome of the UK consultation on open standards will be, but whatever happens there, we can be sure that FRAND will remain one of the hot topics.

That's because proprietary companies are using it as a last-ditch attempt to subvert open standards by allowing encumbered technologies to be included. That is, the standards may be "open", but they certainly aren't open, since you will need a licence from companies to use them. The theory is that FRAND makes this all sweetness and light, but current arguments prove exactly the contrary: what is "fair" and "reasonable" is completely undefined, and therefore inevitably subjective. There's only one way for such subjective issues to be resolved, and that's in the courts.

The FRAND lobby seems to have been busy in Europe. The eagle-eyed Simon Phipps spotted the following interesting announcement on a page of the European Commission's Enterprise and Industry site:

The next workshop on IPR and standardisation organized by DG Enterprise and Industry will focus on Open Source and FRAND.

Are royalty-free technologies the only compatible with Open Source development? The workshop will address the possibilities of developing open software using fair, reasonable, and non-discriminatory terms (FRAND) licenses.

This workshop belongs to the series of events organized by the Commission to increase transparency and predictability in IPR treatment.

The agenda can be downloaded [.pdf], and has some notable features.

First, it is striking that not one, but two speakers come from the European Patent Office. As I've noted many times before, the EPO is one of the biggest threats to free software, with its continual expansion of what it regards as patentable in the software field, mostly through Jesuitical interpretations of the largely meaningless concept of a "computer-implemented invention". Inviting them to a conference on the compatibility of FRAND with open source is rather like asking the police whether they would like more powers to arrest people.

Then we have the session entitled "Companies strategies concerning OS, proprietary technologies and standards in the context of convergence of technologies ". Let's look at the companies that have been chosen to speak.

We have Serge Raes from France Telecom, a company well known for its deep knowledge of the open source scene...or maybe not. Here's his background:

He joined Alcatel (now Alcatel-Lucent) in 1991 where he worked on TETRA (Trans-European Trunked Radio system) and GSM: he holds 3 patents. Then, he became Standardization Programme Manager (1997-2000) at the HeadQuarter: during this period, he launched the UMTS IPR Working Group, UMTS Intellectual Property Association and the 3G Patent Platform Partnership (3G3P) that is now operating a Patent Pool for W-CDMA essential patents under 3Glicensing. From 2001 to 2003, he was Licensing Business Development Manager.

He was seconded to ETSI in 1993-1994 as a Project Team Expert then Leader on TETRA, and in 2000-2001 to 3G3P as Business Development Director.

In 2003, he joined France Telecom where he is in charge of the co-ordination between Intellectual Property and Standardization, which includes the approval of the IPR Policy of all standards bodies where France Telecom is a member and the patent essentiality evaluations and declarations.

Well, good job there's no bias in favour of patents, there....

Then we have Jochen Friedrich from a small company you may have heard of: IBM. Again, the fact that IBM obtained more patents than anyone in the world - for the 19th year running – will not, of course, mean that they have any kind of pre-disposition in favour of allowing encumbered technologies in standards. Oh no.

Next up, Nicolas Schifano from Microsoft. I imagine he will be trotting out all the usual Microsoft nonsense, most of which I eviscerated in an earlier post. So, he'll probably claim that most standards bodies have adopted FRAND – which is true, except that they adopted them for older technologies such as those in the telecoms world; the two main bodies setting standards for software, W3C and OASIS have set their preference for Royalty Free.

He'll probably also claim that "there are numerous instances where distributors of FOSS products have agreed to pay patent royalties", as Microsoft did in the document it sent to the Cabinet Office last year. And yet strangely, Microsoft could cite only two, neither of which stands up to closer scrutiny:

Even vendors of GPL licensed products can take FRAND licenses – as evidenced by Canonical's decision to take a patent license from MPEG-LA for the H.264/AVC codec for its Linux-based Ubuntu operating system. One of the most widely publicized patent licenses related to an open source product, the license that Red Hat took from Firestar to settle infringement claims, also included the payment of a royalty of an undisclosed amount by Red Hat to Firestar.

Here's what I pointed out:

There are two crucial points here. The first is that Microsoft is again espousing what I termed the Fairy Godmother solution. That is, it assumes that companies demanding FRAND licensing will always be prepared to offer lump-sum licensing (as with Red Hat – the Canonical example given above is actually based on OEM hardware sales, and has nothing to do with free software that can be shared), and that there will always be a Fairy Godmother that will magically appear to pay whatever the licensor demands.

It's easy to see why this is unacceptable. If FRAND licensing were permitted for open standards, there is no guarantee that a lump sum deal would be offered or that a Fairy Godmother would appear, which would mean that open source projects would be locked out of implementing those standards.

Indeed, if such a FRAND policy were in place, some companies might see it as a perfect way to shut out open source implementations by refusing to offer lump sum licensing – which is why we need RF, to prevent that happening.

The other crucial point is that Microsoft is confusing companies that base their business on open source – like Red Hat – and open source projects. While the former might have the resources to enter into licensing agreements, the latter almost certainly won't, not least because the informal nature of open source means that the project might not even exist in any legal sense, and so there would be no way that a licence could be granted to it.

In other words, the idea that there are "numerous instances" of open source projects working with FRAND is utter poppycock.

This leaves us with the fourth member of the panel, Martin Prager from Normapme. To my shame, I'd not come across Normapme before, so I did some research. Here's how it describes itself:

NORMAPME is an international non-profit association created in 1996 with the support of the European Commission, under the full name of the "European Office of Crafts, Trades and Small and Medium sized Enterprises for Standardisation".

Fair enough. So what kind of standards does it work on? Here's a selection:

CEN/TC 402 – Private swimming pools

CEN/TC 33 – WG3 – Blinds and shutters

CEN/TC 55 – Dentistry

CEN/TC 289 – Leather

ISO TC 228 – WG4 -Golf Services

CEN/TC 229 – Precast concrete products

EOTA WGs on building anchors

All important stuff, to be sure, but I do have to wonder how much experience Mr Prager has with open source software; I also have a suspicion that FRAND may well be the norm for the kind of industries that Normapme deals with, although I have no evidence for that, other than the fact that Mr Prager is speaking at this conference.

But it's really hard to see any balance in the session involving these four organisations: it seems inevitable that they will come down in favour of FRAND licensing for various reasons, and in varying degrees, and there will be no one to gainsay them, doubtless leaving the impression that there is no problem, when, for reasons I've explained elsewhere, there most certainly are.

That's not to say that there will be no voices offering a different viewpoint elsewhere. For example, in a morning session there is Iain G. Mitchell. He's a lawyer, and Joint Editor of International Free and Open Source Law Review. On a couple of occasions I've heard him speak eloquently in defence of free software, so I think he will prove to be an ally of open source in this meeting.

Later on, we have two other individuals from the free software world: Georg Greve from Kolab Systems, and John Newton from what is probably the UK's leading open source company, Alfresco. Again, that's good news, since I am sure they will point out how FRAND is simply not compatible with free software in the absence of Fairy Godmothers and exceptional licensing deals of the kind that Red Hat signed with Firestar.

However, overall, the day looks distinctly stacked against open source, with a preponderance of voices that will be arguing that it is indeed compatible with FRAND licensing, and that the European Commission should allow patents in European standards. I can't help feeling that this is the result that the Commission wants to hear, and which it has engineered through a distinctly skewed choice of speakers.

It's true that you can still register to attend, but even this has an inherent bias. Whereas big players like IBM and Microsoft have people whose job is to attend these kind of meetings, open source companies are usually run on a shoe-string, with no well-paid lobbyists that can swan around in this way. Indeed, a trip to Brussels not only represents a major cost for them, it represents a day's lost work that could have been spent improving free software or trying to persuade people to use it.

In this sense, the entire system is inherently slanted against open source, and in favour of big companies with deep pockets and serried ranks of professional lobbyists. If the European Commission really cared about promoting SMEs, creating a level playing field and stimulating innovation, it would make it easier for everyone to give their views on these topics, rather than setting up a poorly-advertised meeting of the usual suspects spouting self-serving FUD.

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