EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

03.24.09

Does the European Commission Harbour a Destruction of Free/Open Source Software Workgroup?

Posted in Europe, Free/Libre Software, Microsoft at 8:48 am by Dr. Roy Schestowitz

Summary: Access to already-leaked documents is denied, despite clear rules that make it an obligation

HAVING WITNESSED some serious injustices where Microsoft's American lobbyists took over Europe and subverted the continent's assessment of Free software, we decided to respond. Recall “Innovation Day” and the Wiki-leaked document that eventually reached Matt Asay at CNET. Since it had become public knowledge that all of this was happening, it was only reasonable to ask for the full details to be revealed. So we embarked on little journey that we shall describe hereon.

The first step was a request for the documents. These should be in the public record, even without getting leaked out. It is, after all, the “free open source” component of the European Software Strategy.

After a long look and some inquiries, we managed to get hold of E-mail addresses from which to request the documents simultaneously, not independently as that would lead to duplication of effort. We sent this to two of the (potentially) responsible people, only one of whom replied, which makes perfect sense.

Here is the first communication:

Request for the Contributions of ACT to European Commission Report

Hi,

I have just read http://news.cnet.com/8301-13505_3-10193433-16.html with great concern. This suggests that a Microsoft lobbyist, J Zuck, is tilting a report on open source software against its whole raison detre? Since I can only find this document in Wikileaks (and it is therefore out there already), would it please be possible for me to receive a copy of Zuck’s edits? I have always mailed Zuck and he confirmed to me that he is on this panel.

Could you please send me confirmation that you have received this request and preferably mail me the edits too? This should be an open process

I appreciate your time.

We received a response shortly afterwards:

Dear Mr. Schestowitz,

All request from the press should be directed towards the spokespersons of the relevant area.

We replied:

Hi [anonymised],

Thank you for responding.

Who is the spokesperson in this case? I could find no information about it, but I do know about my entitlement to receive this information:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001R1049:EN:HTML (Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents)

One of our involved readers responded with “An outrage I say. An absolute outrage! Europe to the Europeans!”

The response we received next is the following:

Dear Mr. Schestowitz,

The document you are referring to is not a European Commission document, but a document that are made by Zuck and many others from industry.

All the European Commission’ spokespersons are listed here: http://ec.europa.eu/dgs/communication/contact_en.htm

This page contains the names of about 100 people. We are not able to see who to speak to, having already identified the people who are adequate for this type of communication. So they pushed us away, which was not terribly useful.

Next, we wanted to get an official answer from the Spokesman. We were also advised to prepare a list of E-mail addresses of MEPs of the LIBE committee who are responsible for the pending access to documents directive. We accumulated this information and sent another polite request similar to the one above, namely:

I have just read http://news.cnet.com/8301-13505_3-10193433-16.html with great concern. This suggests that a Microsoft lobbyist, J Zuck, is tilting a report on open source software against its whole raison detre? Since I can only find this document in Wikileaks (and it is therefore out there already), would it please be possible for me to receive a copy of Zuck’s edits? I have always mailed Zuck and he confirmed to me that he is on this panel.

Could you please send me confirmation that you have received this request and preferably mail me the edits too? This should be an open process[1].

I appreciate your time.

_____
[1] http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001R1049:EN:HTML (Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents)

[...]

3 days have passed and we received no response from this third person. We omit names to protect their privacy.

Going back to the more responsive correspondent, getting a reply is one thing, but according to the legal base, we must make a “confirmatory application”, so we did. Commission officials are obliged to help us and it is irrelevant who wrote it. What counts is that the Commission is in possession of the document. If they say it is a document of “the industry”, then they are obliged to consult the third party if they are in possession of it. To quote the legal base:

(a) “document” shall mean any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution’s sphere of responsibility;

[...]

4. As regards third-party documents, the institution shall consult the third party with a view to assessing whether an exception in paragraph 1 or 2 is applicable, unless it is clear that the document shall or shall not be disclosed.

[...]

Article 6

Applications

1. Applications for access to a document shall be made in any written form, including electronic form, in one of the languages referred to in Article 314 of the EC Treaty and in a sufficiently precise manner to enable the institution to identify the document. The applicant is not obliged to state reasons for the application.

2. If an application is not sufficiently precise, the institution shall ask the applicant to clarify the application and shall assist the applicant in doing so, for example, by providing information on the use of the public registers of documents.

3. In the event of an application relating to a very long document or to a very large number of documents, the institution concerned may confer with the applicant informally, with a view to finding a fair solution.

4. The institutions shall provide information and assistance to citizens on how and where applications for access to documents can be made.”

Article 7

Processing of initial applications

1. An application for access to a document shall be handled promptly. An acknowledgement of receipt shall be sent to the applicant. Within 15 working days from registration of the application, the institution shall either grant access to the document requested and provide access in accordance with Article 10 within that period or, in a written reply, state the reasons for the total or partial refusal and inform the applicant of his or her right to make a confirmatory application in accordance with paragraph 2 of this Article.

2. In the event of a total or partial refusal, the applicant may, within 15 working days of receiving the institution’s reply, make a confirmatory application asking the institution to reconsider its position.

3. In exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, the time-limit provided for in paragraph 1 may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given.

4. Failure by the institution to reply within the prescribed time-limit shall entitle the applicant to make a confirmatory application.

We shared the response that we had initially received with one of our readers to get a second opinion. The person said: “I read that the commission is telling you that the leaked document does not belong to them which means: 1) they are taking distance from their own ESS initiative [OR] 2) they are scared to be identified by it.”

Moreover, said that reader, “you are ENTITLED to get assistance from the commission as long as it is an European commission-backed WG document. So you have to insist and demand this. At the very least you can report on the Commission’s attitude on this and attitude on Zuck.”

Finally, in order to make it more formal and compliant with the directive/regulations, we wrote again to the responsive official who is familiar with these matters. Our message — in full — was as follows:

Document access application purpusant to Article 6 EC/1049/2001

As a reply, please answer the following

1. If you intend that

“The document you are referring to is not a European Commission document, but a document that are made by Zuck and many others from industry.”

is a negative reply upon my 1049/2001 request of access to the document please consider the specific provisions of the regulation that guide your obligation in the formal processing of an application under 1049/2001. For instance you have the formal obligation to “inform the applicant of his or her right to make a confirmatory application in accordance with paragraph 2 of this Article.” and the statement above is not in line with the formalities under 1049/2001.

If your statement was such a negative official reply, please regard this mail as a request for a confirmatory application under 1049/2001 for access to European Software Strategy documents. The origination of the document is irrelevant. You have to state reasons for access refusal. I inform you about the substance of Art 4.4 “As regards third-party documents, the institution shall consult the third party with a view to assessing whether an exception in paragraph 1 or 2 is applicable, unless it is clear that the document shall or shall not be disclosed.”

If you regard it as just an informal preliminary communication please just process the following clarified primary application.

2. I hereby request electronic access to all documents related to the Towards the European Software Strategy process in the possession of the EU-Commission, in particular access to the following documents:
* the list of participants in the industry expert group
* the list of WGs, WGs sleaders and observing Commission officials
* draft contributions of all industry Working groups on a the European Software Strategy
* draft input to all WG prepared by the Commission
* the participant list of the related meeting on January 20th in Brussels
* all submissions from industry to the ESS consultation under the applicable provisions of regulation 1049/2001 which grant me a right of access to all documents mentioned above.

I appreciate your kind assistance. If you feel that you are unable to process my request yourself it is your obligation to forward it to the competent person in the Commission.

Fortunately, a formal acknowledgment was soon received:

Dear Mr Schestowitz,

Thank you for your e-mail dated 20/03/2009 registered on 23/03/2009 I hereby acknowledge receipt.

Yours sincerely,

[...]

Is this how politics are intended to work? Since we already possess evidence of a scandal and it’s all over the press, why can’t those officials come forward and offer the transparency they must, as a matter of law? Since they refuse to make reasonable disclosure upon request, this leaves room for more of a scandal. The first scandal is the involvement and subversion of the panel but the second is the officials’ refusal to resolve the issue or at least bring it to light.

pound puppies.
Keep out while the responsible adults do their thing…

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

5 Comments

  1. Reality Jones said,

    March 24, 2009 at 11:22 am

    Gravatar

    You’re looking for a scandal, but in reality it is more probable that the official who needs to reply to your request has yet to be identified by her or his 90,000 colleagues.

  2. NotZed said,

    March 24, 2009 at 4:27 pm

    Gravatar

    Yes, that is exactly how politics works. Don’t be so naive!

    And one things the Europeans are good at is making the politics complicated.

    The only way to get results is if you have money – soft bribery or wasting it on lawyers.

    Roy Schestowitz Reply:

    NotZed,

    Yes, that is exactly how politics works. Don’t be so naive!

    It was a rhetorical question. The text does not reflect on it.

  3. Ari T. said,

    March 26, 2009 at 2:13 am

    Gravatar

    “Yes, that is exactly how politics works. Don’t be so naive!”

    I can’t see anything naive in requiring openness from administration which is obliged by law to be open.

  4. S. Urukipe said,

    March 26, 2009 at 9:13 am

    Gravatar

    Maybe the first step should indeed have been to find out more about the context (European Software Strategy (NOT OSS Strategy as wikileaks still has it: http://wikileaks.org/wiki/European_Commission_OSS_Strategy_Draft%2C_Mar_2009), organisation of industry participation, type and status of working groups, type of target document from the Commission’s perspective etc.) rather than starting a doubtlessly lengthy process to get another copy of a document you already have. Everything seems to have started with this speach titled “Towards a European Software Strategy” by EU Commissioner Reding: http://ec.europa.eu/commission_barroso/reding/docs/speeches/brussels_20071119.pdf. If you google for the speech title you’ll find many papers by companies and associations that appear to have been drawn up in response. (NESSI has a document that appears to have been drawn up by the Commission as a summary of the input received, here: http://www.nessi-europe.com/Nessi/LinkClick.aspx?fileticket=7teEO5hzywY%3D&tabid=304&mid=1571)

    Note that the FSFE has already made some relevant points about the wikileak document and its interpretation (particularly the need to be careful to avoid drawing premature conclusions): http://blogs.fsfe.org/greve/?p=251

    (As to the practicalities of finding the right people in the EU to talk to, note that the FSFE page mentions “DG INFSO” which I think is Commissioner Reding’s department so her spokesman should have the details.)

What Else is New


  1. The Way Things Are Going in the Eastern District of Texas and Other US District Courts, South Korean Companies Might as Well Exit the US Like They Exit China

    Apple and Samsung conclude another major patent battle (after 7 years of chaos, taking up a lot of Judge Lucy Koh's time), but many patent battles remain, which means that lawyers at both companies receive salaries which otherwise engineers would have gotten



  2. The Patent Extremists Resort to Trump-Styled China-Baiting in an Effort to Destroy US Patent Policy

    The patent microcosm, in its non-ending pursuit of patent maximalism, uses China's truly misguided patent policy to alarm US lawmakers (based on false assumptions and deliberate misinformation)



  3. Letting the USPTO Decide on Fees Would Lead to a 'Battistelli Scenario'

    The US patent office, which ultimately profits from patent maximalism, is being given too much power/leverage over the laws/policy which govern its operations, enabling the Trump-connected new chief to implement rollbacks which would harm patent quality and empower patent trolls



  4. Another Week of Federal Circuit Supporting PTAB and Acting Tough for Patent Quality in the United States

    The Patent Trial and Appeal Board (PTAB) and the Court of Appeals for the Federal Circuit (CAFC) maintain a productive cycle of patent elimination, except when the patents do have merit (e.g. when they're on physical inventions and not nature or code)



  5. The Irish Knowledge Development Box (KDB) is Just Another Tax Evasion Ploy

    Ireland — like several other nations across the world — opens to business by basically giving tax breaks to large companies under the guise of ‘innovation’ (as measured superficially by quantity of patents etc.)



  6. Software Patents Advocacy and UPC Lies Go Hand in Hand

    The push for UPC, which accompanies the lobby for software patents in Europe, is still based on a large pile of lies and false projections of commencement



  7. IAM Warns That China is Outpacing the United States at Granting Rubbish, Unproductive Patents on Abstract Things

    Sites that speak for patent maximalists tell us that we should envy if not fear or mimic China's self-defeating patent scope, which basically welcomes patents on just about anything under the Sun



  8. On Ethics of Patent Lawyers

    Ethics in the legal community, including the practice of patent attorneys/lawyers, are paramount; they need to live up to the notions of law and justice, not greed and extortion



  9. Techrights at 24,000

    Techrights has nearly reached 24k blog posts (just a couple of days away), marking the latest milestone in a long history of relentless activism/journalism



  10. Index for EPO and Saint-Germain's Poisonous Legacy of "Toxic Loans" Series

    A roundup or an index of this past week's series about financial gambles at the EPO -- Battistelli's own dubious idea



  11. Saint-Germain's Poisonous Legacy of "Toxic Loans": Quo Vadis EPO?

    In spite of the SIDRU “toxic loans” scandal in St. Germain-en-Laye, where Battistelli is Deputy Mayor, the EPO’s Administrative Council repeats similar mistakes with opposition only from one country — the only country that actually bothered to study the matter before voting on it



  12. Links 26/5/2018: Wine 3.9, KStars 2.9.6, Bodhi 3.8.0, FreeBSD 11.2 Beta 3

    Links for the day



  13. Saint-Germain's Poisonous Legacy of "Toxic Loans": The SIDRU “Toxic Loan” Débâcle a Case of “Take the Money and Run...”

    The fourth part of the series exploring the debt crisis at Battistelli’s town (where he’s deputy mayor) in light of the EPO’s gambling with financial speculators, potentially adding to the many EPO scandals



  14. EPO, a Longtime Privacy Offender, Uses General Data Protection Regulation (GDPR) Day to Lie to the Public

    The European Patent Office (EPO) has the nerve to pretend to value privacy after all it has done; it's just exploiting the "GDPR Day" buzz to spread some more face-saving lies about the very subject it has become incredibly notorious for



  15. The Unitary Patent and the Unified Patent Court (UPC): This Week's Latest Spin and Lies

    The EPO has adopted a largely passive approach, choosing barely to comment at all on the UPC whereas Team UPC keeps repeating the same misleading if not patently untrue claims to perpetuate the notion that UPC is inevitable



  16. Links 25/5/2018: OpenSUSE 15 Leap Released, PostgreSQL 11 Beta

    Links for the day



  17. Privacy Statement

    Today, May 25th, the European General Data Protection Regulation (GDPR) goes into full effect; we hereby make a statement on privacy



  18. Saint-Germain's Poisonous Legacy of "Toxic Loans": The SIDRU “Toxic Loan” Débâcle and Criticism of Lamy From Local Opposition Groups

    The EPO‘s entrance into the “toxic loans” trap as of a few months back (just like in Saint-Germain) is a sign of potential trouble ahead; The SIDRU “toxic loan” débâcle is highlighted as per criticism of mayor Lamy (St Germain-en-Laye, where Battistelli is deputy mayor) from local opposition groups



  19. New EPO Caricature: The Rubber Stamp

    Cartoon which circulates in EPO 'circles', encapsulating the concern many people have about the quality of granted patents and unrealistic expectations from the management



  20. Links 24/5/2018: RIP Robin “Roblimo” Miller, Qt 5.11 Released

    Links for the day



  21. Walmart, Bank of America, Allied Security Trust (AST) and the Rush for 'Blockchain' Patents

    The hoarding of patents on novel-sounding code has reached ridiculous levels; very large corporations and even patent trolls arm themselves with such patents, hoping to make returns by means of litigation or an 'arms trade'



  22. Stupid Blogs, Stupid Lawsuits, and Stupid Patents

    The stupidity of the patent microcosm, which would like to see everything in the world patented and which would gleefully smear or even sue its critics (the EFF was sued several times for libel over its "Stupid Patent of the Month" series)



  23. Perpetuating the Big Lie That Unitary Patent (UPC) is About to Kick Off

    The (in)famous old lie about UPC being "just around the corner" is still being circulated, mainly if not only by patent law firms which stand to benefit from a litigation Armageddon in Europe



  24. EPO Validation in Former French Colonies That Have Zero European Patents

    The strategy of the EPO seems to be centered around the interests of Benoît Battistelli and his political career rather than that of the EPO; validation deals and dubious 'Inventor Awards' seem to be part of this pattern



  25. Saint-Germain's Poisonous Legacy of "Toxic Loans": The Cautionary Tale of SIDRU and Its “Toxic Loans”

    The town where the EPO‘s President (Battistelli) is a deputy mayor has a track record of financial hardship and alleged financial misconduct, attributed to the same financial practices Battistelli has just implemented at the EPO



  26. Links 23/5/2018: DragonFlyBSD 5.2.1 and Kata Containers 1.0 Released

    Links for the day



  27. Masking Abstract Patents in the Age of Alice/§ 101 in the United States

    There are new examples and ample evidence of § 101-dodging strategies; the highest US court, however, wishes to limit patent scope and revert back to an era of patent sanity (as opposed to patent maximalism)



  28. PTAB's Latest Applications of 35 U.S.C. § 101 and Obviousness Tests to Void U.S. Patents

    Validity checks at PTAB continue to strike out patents, much to the fear of people who have made a living from patenting and lawsuits alone



  29. France is Irrelevant to Whether or Not UPC Ever Becomes a Reality, Moving/Outsourcing de Facto Patent Examination to European Courts Managed in/Presided by France

    Team UPC is still focusing on France as if it's up for France to decide the fate of the UPC, which EPO insiders say Battistelli wants to be the chief of (the chief, it has already been decided, would have to be a Frenchman)



  30. Saint-Germain's Poisonous Legacy of "Toxic Loans": The Emperor’s New Investment Guidelines

    Details about a secret vote to 'gamble' the EPO's budget on "a diversified portfolio managed by external experts"


CoPilotCo

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

CoPilotCo

Recent Posts