FOSS Open Standards/Annexure

There is much controversy and debate over patents in software development and Reasonable And Non-Discriminatory licensing or RAND in standardization. The following is a collection of comments by leading experts from the FOSS community, industry, and academia on the issues relating to patents in software development and standards, and in particular on the issues surrounding RAND.

Peter Chong, Corporate Attorney, Asia-Pacific Region, Microsoft Legal and Corporate Affairs ( http://www.microsoft.com )

Proprietary does not imply "closed" or the opposite of interoperability; it simply indicates a different - often smaller and quicker - process was used to develop the standard at issue. Even when a standard is produced and controlled by a single entity and does not undergo a process of review and ratification through a standards body, as long as the standard is broadly accessible to all for use and implementation on reasonable terms, such a standard can still facilitate interoperability between products. PDF and ZIP (which is used in the OpenOffice.org file format submitted to OASIS) are two examples of standards that have achieved widespread acceptance and interoperability without being open standards, and while remaining under the ownership of a single entity. Other examples of broadly deployed proprietary standards that are widely licensed in the IT industry with a significant positive impact on interoperability include Adobe's PDF, Hewlett Packard's Printer Control Language (PCL), Microsoft's Office Open XML File Formats and the Java and Win32 APIs. Many well-known and useful open standards today also originated from a single entity before formal adoption as an open standard, e.g. ISA (a specification by IBM, later standardized by IEEE), and NFS (Network File System, introduced by Sun Microsystems, later standardized by IETF).

While adopting open standards is one good approach to achieving interoperability, it is not the only approach, and it is not the case that any other approach is without merit. Further, it is not the case that open standards exist in every field of technology. In many emerging areas, standards are still being developed by the industry. The reality faced by many governments and organizations is that there are numerous areas where open standards do not yet exist, and they have to work with other types of standards until a strong contender emerges. Premature governmental directives on the use of standards that are not yet ready and proven will stifle the industry and inhibit growth.

Governments and organizations should be, and are often, open to the possibility that some de facto standards, like PDF for example, are so widely and reasonably licensed and so broadly deployed and demanded that it makes sense to embrace such standards as part of a government's or organization's interoperability framework, rather than insisting on an open standard such as X.400. This is a much better approach than suggesting at the outset that all de facto standards, even those available royalty-free, should entirely be avoided by governments and other organizations. To completely ignore such standards as a rule may make little sense and may actually impair interoperability, particularly if there is no adequate open standard substitute for such a de facto standard. This is how governments (e.g. Australia) and other organizations (e.g. Asia-Pacific Economic Cooperation or APEC) continue to view and use such popular and accessible de facto standards. Governments and organizations should realize that proprietary standards and open standards are complementary ways to achieve interoperability.

Governments should avoid mandating standards themselves or mandating those that have not achieved broad industry support. Regardless of whether open standards and proprietary standards are at issue, voluntary, industry-led industry led processes have proven in all cases to be the most effective means of fueling innovation through standards. Most of the best known, widely adopted open and proprietary standards in existence today, e.g. TCP/IP, MPEG, HTML, 802.11, XML, SMTP, were developed through industry-led, voluntary efforts. This reflects the fact that the marketplace continues to be best situated to determine and develop the appropriate timing and levels of interoperability for products and services.

Microsoft has a responsibility to develop technology that is based on commonly used standards and to make our products work well with those of other companies - including our competitors. Microsoft enables interoperability between its products and thousands of third-party products and services in various ways, including active participation in hundreds of standards organizations, support of open standards in its products, and publication and broad licensing of Microsoft's proprietary technologies. Go to http://www.microsoft.com/interop for more information.

Seow Hiong Goh, Director of Software Policy - Asia, Business Software Alliance ( http://www.bsa.org )

There is no special relationship between open source and open standards - the two concepts are separate and distinct. Just as FOSS does not mean software "free-of-charge" open standards do not mean standards , "free-of-charge" or "royalty-free". Openness in a standard relates to the process in which the standard is defined, ratified and maintained, and not with its cost. FOSS and commercial software are both equally capable of implementation that meets the requirements and specifications of open standards.

Key aspects of BSA's position on the EIF definition are shared by numerous other bodies such as EICTA, ITU-T, GSC, ANSI, ETSI, CompTIA and many others. We do not believe that these organizations are attempting to undermine FOSS. We do not think that many critical and well-established technologies that are implemented on the basis of accepted open standards and maintained by many existing standards bodies should no longer be considered so.

Common licensing provisions governing matters such as royalties, defensive suspension, reciprocity, field of use and sublicensing do not preclude developers from distributing standards implementations under the vast majority of open source licenses.

Certain FOSS licenses, particularly the GPL (see note below), contain restrictive terms concerning free redistribution, derived works and distribution of license that create a direct conflict with RAND terms. Even where there are no royalties or other fees associated with a RAND patent license, the GPL is still at odds with the field-of-use limitation, restriction on sublicensing and reciprocity requirement, the three common terms in standards-related patent licenses.

We believe that a licensing restriction that is unique to the GPL should not be generalized as being applicable to all open source licenses that may not face such restrictions. Most FOSS licenses are flexible enough to be used to redistribute software covered by an independent RAND patent license (assuming redistributors have taken steps to mitigate infringement risks).

Fortunately, while some conflict exists, given the increasing success and importance of FOSS, the proprietary software industry and the standards industry continue to explore ways to resolve any such conflicts and to forge an environment in which all software - commercial and FOSS alike - can co-exist and thrive, all with the ultimate goal of enhancing interoperability and consumer choice.

For a further discussion of the issues of technology standards and interoperability, please see: http://www.bsa.org/asia-eng/policy/upload/Technology-Standards-Interoperability1.pdf

Note: Unlike the vast majority of FOSS licenses, the GPL prohibits the distribution of software under the GPL if the software includes any patented technology that is licensed under terms at odds with the GPL. Hence, the requirement that the software be freely distributable, for example, is at odds with any RAND license which permits reasonable royalties, and accordingly the patented technology associated with such a RAND license may not be included in FOSS distributed under the GPL. A developer of FOSS distributed under the GPL may be unable to implement open standards covering RAND-licensed patented technology in its products, thereby impairing such software's interoperability potential.

Pamela Jones, Growlaw, USA ( http://www.groklaw.net )

RAND terms at one time made good sense. Now RAND is a weapon to discriminate. For software, RAND terms no longer suit. Something new has happened in the world of software. The General Public License, like most other Open Source licenses, is incompatible with RAND unless the terms specify that the patents are 100 percent royalty-free. Because Linux and GNU/Linux are made available under the GPL, the dominant Open Source license, and because so many now wish to use GNU/Linux operating systems, including large corporations and government agencies, standards organizations have reached a fork in the road. They will have to adjust to include this new player if they wish to remain relevant.

The purpose of standards is to make the playing field fair to all and to enable interoperability, but RAND no longer accomplishes that purpose for software, and so an adjustment must be made to include GNU/Linux and the GPL.

Jeff Kaplan, Founder & Director, Open ePolicy Group, Berkman Centre for Internet and Society, Harvard University, USA (cyber.law.harvard.edu/epolicy)

Open standards are the subject of increasing public attention and debate. But what makes a standard open? Open standards must be royalty-free, but the discussion does not end there. The harder question is whether open standards can have other conditions if they are RAND. Despite its appealing rhetoric, RAND is not an objective benchmark. "Reasonable" is in the eye of the beholder; it is an undefined criteria only a lawyer could love. Worse, RAND can be a wolf in sheep's clothing, bringing new forms of lock-in under the guise of "openness."

Standards have degrees of openness, mainly due to restrictions and encumbrances placed upon them by vendors. The fact that a standards organization labels a standard open is not determinative. Its effect in the marketplace is a better guide.

At a minimum, open standards must allow all possible competitors to operate on a basis of equal access to the ability to implement the standard. They should not drive others to follow any specific proprietary path or effectively foreclose any software development model. A standard that in effect blocks open source developers from its implementation is not an open standard.

Any conditions (RAND or otherwise) that have the effect of limiting competition, leaving control in the hands of a single vendor, or hindering interoperability - for example, proprietary extensions of a standard- are incompatible with open standards. Ultimately, open standards must allow for self-directed innovation.

Michael R K Mudd, Director of Public Policy - Asia-Pacific, CompTIA ( htpt://www.comptia.org )

The greatest fear of patents in the software standardization process is the misconception that they would somehow hinder the interoperability of different types of computer programs and file formats. CompTIA would like to make it absolutely clear that robust intellectual property protection - particularly the patentability of computer-implemented inventions - is not a deterrent to interoperability, but may in fact enhance it by providing industry with the right incentives to further invest in the development of such standards in that they can be traded between innovators on RAND terms.

Unlike trade secrets, patents also encourage transparency - in cases where software is distributed in object code form only, a patent provides the only public disclosure of the technical concepts embedded in it. As in the case of the EU Community Patent, which would create a single patent across the European Union, the European Commission has gone to great effort over recent years to harmonize computerimplemented inventions (CII's) despite many public misconceptions of what this would entail. The European Parliament has been cautious to proceed with any directive that would dilute the importance of this intellectual property right. EU Member States and a number of third countries subscribe to the European Patent Convention (EPC) which has enabled the European Patent Office (EPO) to grant patent rights for software-related inventions under intergovernmental - as opposed to supranational - agreement, for decades.

CompTIA also supports the industry position that open standards cannot be defined to the exclusion of potential patent-based royalties such as RAND. To adopt the proposed European Interoperability Framework (EIF) definition would create a preference for a particular business model and automatically exclude other models in the standards-setting process. To cite the EIF definition as a valid EU law or norm is not necessarily correct in that it would discriminate against particular forms of software development in public procurement and other markets

There are some who believe that open standards are standards that either completely "patent-free" or "royalty-free," or that are not subject to any licensing restrictions. This view is squarely at odds with the longstanding approach taken in the IPR policies of leading open standards organizations. For example, ANSI, ECMA, ETSI, IEEE, IETF, ISO/IEC, and ITU expressly acknowledge the right of patent holders to charge reasonable royalties, and to place reasonable restrictions - such as field-of-use restrictions, reciprocity requirements, and restrictions on sub-licensing - on the licensing of their essential technology covering an open standard.

Dan Ravicher, Legal Director, Software Freedom Law Centre, USA ( http://www.softwarefreedom.org )

RAND, to the extent that it has the historical meaning of allowing an owner of a patent that covers a standard to charge a license fee to any person that adopts the standard, is an oxymoron for free and open source software, because any requirement of the charging of a license fee is - by definition - neither reasonable nor non-discriminatory. Thus, most RAND licensing is - in fact - unreasonable to and severely discriminatory of free and open source software because it precludes such software from existing. As such, standards covered by patents licensed on a RAND basis generally cannot be implemented into free and open source software, unless the RAND license is actually royalty free.

Andre Rebentisch and Gavin Hill, Foundation for a Free Information Infrastructure, European Union ( http://www.ffii.org )

In our opinion the basic foundation of Open Standards is the absence of control over the creation and use of standards. The openness and management of the standard development process plays a minor but crucial role. The notion of facultative use, i.e. occurring optionally in response to circumstances rather than naturally, of Open Standards and the absence of control procedures like forced certification further add to business affinity. A standardization process is always under the threat of abuse by the interests of those parties who set the standard, institutional interests of the standard-setting body and exclusive enforcement of the standard. Often standards put an artificially high cost burden on businesses. This is especially important as standards are classical means of non-tariff trade barriers and anti-competitive market control. Open Standards, correctly defined and implemented, prevent these inherent problems of standard policy. Patents as exclusive monopoly rights over such possible means of undesirable control. RAND licensing limits the exclusive nature of the patent rights. However, only royalty-free or patent-free technology does not bear a welfare burden to the free competitive market. Open Standards may not include measures to exclude competitors. Therefore, RAND licensed technology is incompatible with Open Standards. As mentioned by some contributing parties RAND provisions exclude the use of the currently predominant FOSS license, the GNU GPL.

Despite common postulates there is no indication that the patent system is appropriate to the software market, its market dynamics and common use in professional software development. As the arguments to software patenting have been driven by institutional interests of the patent system rather than market demand, we further stress that there is no legitimacy for the application of the instrument in the software market. We do not see a useful role for patents in standardization. The burden of proof lies upon the proponents of a certain incentive system which works by restricting the freedom of market in first place. The pro arguments mentioned by the FOSS community are not useful to provide such evidence as they are not accompanied by empirical data to prove the claims made. In fact they are postulates which could be applied to justify the use of the patent system in any possible field but fail to make the case. Open Standards and standards in general are especially interesting from our point of view as they are known to be areas where patents are very harmful to competition.

Richard Stallman, Founder, Free Software Movement ( http://www.fsf.org )

Standards bodies that promulgate patent-restricted standards that prohibit free software typically have a policy of obtaining patent licenses that require a fixed fee per copy of a conforming program. They often refer to such licenses by the term "RAND," which stands for "reasonable and non-discriminatory."

That term white-washes a class of patent licenses that are normally neither reasonable nor nondiscriminatory. It is true that these licenses do not discriminate against any specific person, but they do discriminate against the free software community, and that makes them unreasonable. Thus, half of "RAND" is deceptive and the other half is prejudiced.

Standards bodies should recognize that these licenses are discriminatory, and drop the use of the term "reasonable and non-discriminatory" or "RAND" to describe them. Until they do so, other writers who do not wish to join in the white-washing would do well to reject that term. To accept and use it merely because patent-wielding companies have made it widespread is to let those companies dictate the views you express.

We suggest the term "uniform fee only," or "UFO" for short, as a replacement. It is accurate because the only condition in these licenses is a uniform royalty fee.