Europe to force all 'significant market players' to provide information necessary for interoperability?

By Rick Jelliffe
June 11, 2010 | Comments: 3

Three news items caught my interest this week. all slightly related:

  • Dr. Neelie Kroes has made a significant speech How to get more interoperability in Europe on practical steps on interoperability and standards. She presents this as building on the speech two years ago that I covered in Neelie Kroes gets it: "Standards are the foundation of interoperability.".
  • Lars Marius Garsholl has blogged on My report on OOXML and ODF which is interest in particular because it shows the gap even now between the promise and the reality of open standards. (Readers may be amused that the Groklaw take on the report is, because it paints a less than rosy picture, it must be a result of Microsoft manipulation: Garsholl points out in a comment that he actually was against OOXML becoming an ISO standard.)
  • It looks like some success in getting Microsoft to disclose information necessary for interoperability. (I write 'necessary' not 'sufficient'.).

Read Kroes' speech! There are some odd takes on it: for example, ZDNET 's Dana Blankenhorn gets Kroess comes out as open source advocate even though Open Source per se is not mentioned in the speech at all (Open in the sense of IP-unencumbered software is!). The speech was given at OpenForum Europe (Blankenhorn calls this 'OpenSource Europe' too :-) probably accurately.)

Key phrases from Kroes:

  • The standards that power the digital world are made by the economic actors. In Europe only ETSI allows these actors to directly participate in the making of standards. One negative result is that the standards underpinning the emerging universal communication platform: the internet and the world wide web - including standards for content formats - are made elsewhere. (Readers might like to read my Balance of interest ~= Broader representation for more on this issue. And I see Simon St Laurent has been thinking about it recently too here.)
  • we must use all opportunities to promote appropriate rules for ex-ante disclosures of essential IPR and licensing conditions in standard-setting contexts.
  • we will draw up detailed guidance on how to analyse a technology buyer's requirements in order to make best use of ICT standards in tender specifications. ... After a certain point that original choice becomes so ingrained that alternatives risk being systematically ignored, no matter what the potential benefits. ... Many authorities have found themselves unintentionally locked into proprietary technology for decades. ... It is even worse when such decisions result in the waste of private money on top....That happens where the public authorities' decisions force citizens to buy specific products (rather than any product compliant with an applicable standard) in order to make use of a public service.
  • For me, it is a fundamental tenet that public administrations spending tax-payers' money should opt for the least constraining solution that meets the requirements for a given need.
  • with my colleagues in the College I will seriously explore all options to ensure that significant market players cannot just choose to deny interoperability with their product. ... I am looking for a way to ensure companies offer the required information for licensing.

The ideas that come across several times is the desire to move from ex post to ex ante management of competition policy with open standards (including comprehensive measures to require publication of interop information by vendors, and to encourage suitably agile standards bodies, and to encourage IP-unencumbered or open-licensed standards.) It is very significant that Kroes defines truly open largely in terms of IP and information:

they do not come with any constraints for implementers

I think Kroes is outlining a comprehensive agenda here, and it is one that many other national government competition regulators and procurement policy-makers will be very interested in. And it seems one that is entirely consistent with my longstanding call that All Interface Technologies by Market Dominators should be QA-ed, RAND-z Standards!.

The writing for this kind of policy has been on the wall for while. Non-partisan institutions like government may establish policies to meet particular competition challenges (in particular the issues of Microsoft's market domination and bundling advantages and the issue of patent disclosure for standards participation) but they then must derive the principles and apply them uniformly to other players.

One area that will come up, I expect, it that if open standards are necessary for proper competition but the current US-based patent regime is profoundly undermining of standards efforts, can both be accommodated? My view is that the patent system will need to be balanced by more laws that privilege and protect open standards.


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3 Comments

There's a tension between Metcalfe's law of networks, in this case, not just connections but usability of the data shared on those connections, and the long standing effort of business and governments to capitalize on technologies they create.

Notice these guidelines for U.S. E-Gov standards adoption:

o Are there any patent assertions made to this standard?
o Are there any IPR assertions that will hinder USG distribution of the standard?

http://ts.nist.gov/Standards/E-Gov/Analysis-Model-for-Stds-Selection.cfm

So, for example, if Cold Fusion were developed in a U.S. laboratory, it would be required to patent the technology for U.S. companies, but if it wants to distribute information about the discovery, it appears that our govt. would prefer it be done in a format with no IPR assertions.

(BTW, what is .cfm file? ;)

Hank: It would be nice if it were merely a 'tension'! I think we currently have much more than that: the patent system (at least as assiduously promoted in and by the US) is unfortunately at direct odds with standards. This is why I find Dr Kroes' comments so useful.

Standards tend gives us such things as the WWW: just as capable of improving the lives and business opportunities of small folk like villagers in remote communities and disabled people as it is capable of
providing big business with new opportunities.

The rationale of patents is to provide a concentration of ownership in the expectations that benefits will trickle out to others (which they sometimes do.) The rationale of standards is to reduce such concentrations even though some businesses may be more successful at exploiting the new opportunities than others.

To me, the patent system has at least nine problems: first it is fundamentally a monopoly system; second, it is available mainly to well-funded US (and Japanese) corporations, which merely encourages first-world concentration; third, the volume of patents applications is obviously much higher than is feasible to test them, and we all know examples of junk patents; fourth, junk patents are being applied for in the knowledge that they are junk, merely for defensive purposes, against the rationale for patents in the first place; fifth, patents are used to block the development of technologies, which can be seen by the low number of patents by the big boys which are actually exploited, again opposite the intent of the patent system; sixth, the rate of technological change and the spread of ideas is much faster than in the age of steam when the patent system became entrenched: a 17 year patent on a technology that would take 50 years to become common is surely a different matter than a patent on a technology that would take a year to make it into every household; seventh, patents are in a privileged legal position compared to voluntary standards which works against the efficiencies of fairly standardized markets; eighth, patents carve out chunks from the viable solution space for standards; and ninth that software patents in particular are based on a pretense that the normal method of software engineers (combining generic solutions like algorithms, data structures and graphical objects) is somehow really clever and worthy of special reward if you are in a position to stake your claim first.

I think increasingly we will see patents not just being used defensively, but being used negatively: a company will take out a patent in order to prevent that technology from being used in standards-based commercial or open source solutions. It is a travesty of their original justification of promoting and rewarding innovation: we need to promote and reward market development. Market development may come out of patents, but certainly comes out of standards efforts.

(Readers interested in Metcalf's law, see Wikipedia.)

Btw Funnily enough, .cfm is a Cold Fusion Markup extension, for the content management system of the name. However, for HTTP, the type or format from a URL is determined by the server, not by the extension of the request. So you request a URL with .CRM at the end, but what you get returned is a text/html representation of that information. The distinction between resources (and their locations) and representations (and their types) is one of the distinguishing features of the WWW over, say, network file systems.

In the new digital world and era, informations and knowledge has been the important part of progress. Government and business should prioritize their effort to capitalize on creation of technologies.
mutuelle santé

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