Lessons Not Learned From Microsoft's OOXML Scam

Dr. Roy Schestowitz

2010-07-09 07:03:33 UTC
Modified: 2010-07-09 07:03:33 UTC

Summary: A back door to software patents is left open by the competition commissioner, who would be wiser to forbid FRAND-encumbered standards

Joaquín Almunia, the Vice President of the European Commission in charge of competition policy (some background in [1, 2]), is promoting FRAND in his new speech. This is an implicit endorsement of software patents inside standards. From the transcript we have:

Standards and Protocols

When it comes to standards some minimum requirements must be met to ensure that the positive effects of standardisation can fully materialise. We have identified these requirements in the Commission’s draft guidelines on horizontal agreements which include an extensive discussion of standardisation.

The starting point is transparency: if technology is to be incorporated into a standard, then participants that own intellectual property that covers that technology should disclose their ownership. Without transparency, efficient decisions cannot be made.

For a standard to serve its purpose there should be a commitment to license on fair, reasonable and non-discriminatory terms. If so called “FRAND commitments” have been given, they should be adhered to. Moreover, those standardisation bodies that require full disclosure of the proposed terms and conditions of licensing can be assured that they will not infringe EU competition law by doing so.

Permitting FRAND is not a good idea. It permits more of the same abuse of bodies like ISO, on which Microsoft dumped patent traps. There was also the controversial process around MPEG, which essentially helped create another patent troll [1, 2, 3, 4, 5, 6].

ISO allowed itself to be abused in this way and action is taken in response to Microsoft's sheer abuse. It is far too little, far too late (over two years late). Jan Wildeboer says: "One can see this as admitting the process of OOXML standardisation was flawed."

Here is how Rob Weir put it:

ISO/IEC JTC1 Revises Directives, Addresses OOXML Abuses

[...]

First, we see the elimination of the contradiction phase in Fast Track processing. If you recall, under previous rules, a Fast Track begin with a 30-day NB review period, sometimes called the “contradiction period”, where NBs were invited to raise objections if they think the Fast Track proposal contradicts an existing ISO or IEC standard. This was followed by a 5-month ballot. The problem was that the word “contradiction” was not defined, leading to various irreconcilable interpretations. In the case of OOXML 20 JTC1 National Bodies (NBs) raised contradictions. Evidently, the passage of time has lead to no progress on defining what exactly a contradiction is, so the contradiction period has been eliminated entirely. Instead, looking for “evident contradictions” (still undefined) is given to JTC1 administrative staff, which is the surest way of guaranteeing that we never hear of contradictions again. The Fast Track DIS ballot remains at 5-months, so net-net this accelerates processing by one month.

Next, we see some clarification around how NBs should vote on Fast Tracks. Back, during the OOXML ballot, Microsoft made a huge effort to convince NBs to vote “Yes with comments” if they found serious flaws in the text, with the promise that they would all be addressed at the BRM. Well, we now know that this was a big lie. Very few issues were actually discussed and resolved at the BRM. And most of them were addressed by merely saying, “Sorry, no change”. At the time I argued that the rules were quite clear, that disapproval should be voiced by a “No, with comments” vote. Well, we now see another small slice of vindication.

[...]

Another change is that if the DIS ballot fails to get sufficient votes, meaning less than 2/3 approval of ISO/IEC JTC1 P-members, or more than 25% disapproval overall, the proposal dies at that point. It doesn’t go on to the BRM. Game over. If this rule had been in place back in 2007, OOXML would not be an ISO standard today.

OOXML is a patent trap with RAND and it is also a proprietary format which nobody implements as it cannot be implemented. What the European Commission ought to do is stick to abolishment of software patents and perhaps an exclusion ZRAND. There is enough time for this to be done. ⬆

Comments

Florian Mueller

2010-07-09 20:37:32

The Commission's ruling (which was upheld by the Court of First Instance) contained a FRAND clause. The Samba team then looked at the patents in question and decided not to license any of them. The key thing is that the Commission would never be able to take a formal decision to require royalty-free licensing under antitrust rules (public procurement is another story, and so are voluntary decisions by vendors).

Dr. Roy Schestowitz

2010-07-09 22:44:39

I think your facts are not accurate. Yes, there's a FRAND clause in there, but it happened after Neelie had been "schmoozed" by Ballmer. Samba got a free pass.

Florian Mueller

2010-07-10 06:42:20

My facts are accurate. You may attribute the FRAND clause to that meeting, but the thing is that under competition law the Commission cannot impose royalty-free licensing. It would be an expropriation and go against EU rules as well the constitutions of most if not all EU member states.

Samba didn't get a free pass. They decided not to seek a license because they believed they don't infringe the patents in question. They haven't been sued. But that's not the same as a free pass and especially not the same as a regulatory authority imposing royalty-free licensing.

Dr. Roy Schestowitz

2010-07-10 06:48:34

The context was different because Samba made a breakthrough in December 2007 (IIRC), after almost 10 years of legal action. Samba is the exception, not the norm.

Anyway, the point I was making is that Europe shouldn't be schizophrenic about software patents.
twitter

2010-07-11 13:18:25

"the thing is that under competition law the Commission cannot impose royalty-free licensing"

Hopefully the makers of that law can be intellectually consistent and avoid Uniform Fee Only licensing (aka RAND) in standards and monopolies on methods. Both are anticompetitive and outrageous taxes that must be paid to a private company without corresponding public benefit. Society should not grant exclusive ownership to business methods in the first place. If that mistake has been made, it is a further crime to require people to pay taxes on that method to do business with government.
Dr. Roy Schestowitz

2010-07-11 15:46:46

The WWW worked OK without UFO.

Florian Mueller

2010-07-09 18:27:00

The European Commission always supported software patents, never pursued their abolition. There may be individual people (or perhaps even entire units) who don't like software patents but the directorate-general in charge of patent policy is DG MARKT (Internal Market & Services) and they've consistently advocated patents on software, which they call patents on computer-implemented inventions.

However, Vice-President Almunia's responsibility is competition enforcement, and under competition law you simply can't require patent holders to go beyond FRAND. Article 102 TFEU doesn't give anyone a basis for imposing royalty-free terms by antitrust means. So Mr. Almunia's statement is simply based on a legal fact and I think it's fair to say he's most probably agnostic about software patents (his party actually opposed them during the process on the software patent directive).

I wanted to say this in defense of a politician I hold in the highest regard (and so do many MEPs including on the right wing although Mr. Almunia is formally a left-winger).

Dr. Roy Schestowitz

2010-07-09 19:09:25

Samba did get some exemptions. Neelie was deceived later on (by lobbyists "as such").

twitter

2010-07-09 18:02:39

RAND is a term to be avoided. Software that has owners should never be accepted as a standard, even if it the owners promise they won't discriminate today. Any license that requires a per use fee discriminates against free software distribution and that is reason enough to reject RAND licenses as unreasonable and the term itself as a lie. No one should have to pay a private party to do business with government, making that payment a standard is like passing a special tax on behalf of the private party. Having OOXML as a standard would be like passing a Microsoft support tax, a foolish thing to do when there's patent and royalty free formats like ODF that are technically superior and well implemented. GNU suggests the term "Uniform Fee Only" (UFO) instead of RAND because all RAND promises is a uniform fee. I like UFO because it suggests that people who believe in software patents are crazy and outlandish.

Dr. Roy Schestowitz

2010-07-09 18:15:31

Who knows... the new Commission might be a UFO proponent. I'm sceptical...

Lessons Not Learned From Microsoft's OOXML Scam

ISO/IEC JTC1 Revises Directives, Addresses OOXML Abuses

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