On Friday we published an FSFE analysis on patents and standards, and shared it with the European Commission. This was in reaction to a letter [pdf] which the Business Software alliance (BSA) had written to the Commission in a last-ditch attempt to eradicate the last traces of Open Standards from the European Interoperability Framework. We replied to the BSA’s arguments, picking them apart one by one.
Why Open Standards matter for Free Software
Here’s a bit of perspective to this episode. Open Standards are important because they can be implemented in any software model, whether Free or proprietary. Where Open Standards are used, programs compete on their merits rather than on the number of users they manage to lock in.
For a standard to be open means, among other things, that it can be implemented without restrictions such as an obligation to pay a licensing fee to the patent holder for every copy that’s made of the software. Such “running royalties” are a typical feature of patents licensed under so-called “(fair,) reasonable and non-discriminatory” ((F)RAND) conditions. Glyn Moody has a great introduction to the topic, and here’s an in-depth discussion of the relation between patents and standards. To be sure, zero royalties vs running royalties is just one of several issues when it comes to standards that involve software, but it’s certainly an important one.
That’s why FSFE puts a lot of effort into promoting Open Standards in different fora, such as WIPO, the Internet Governance Forum and the European Commission. We also organise Document Freedom Day each year at the end of March. We read the lenghthy documents from the European Commission, WIPO and any other relevant policy fora. We analyse. We publish. We form alliances where it serves to strengthen the Free Software message, without ever compromising on substance. Sometimes we coordinate with industry groups such as Open Forum Europe. If we have a common agenda, we work together. If we disagree, each party goes their own way. Such is the business of policy work.
A global campaign against Open Standards
Recently, the Business Software Alliance and its friends have been waging an all-out campaign against Open Standards. Last week’s letter was only the latest instance of what looks like a co-ordinated international effort by the BSA and its friends to get their message out to policy makers. Like the legendary many-headed Hydra, people pushing out the party line are seemingly everywhere. Over the past month or so, I kept hearing the same routine wherever I went, always in similar words.
A few quick words if you’re unfamiliar with the BSA: Prominent BSA members include Microsoft, IBM, SAP, Adobe, Siemens, and many others. The BSA is perhaps best known for everybody’s favourite stats on illicit copying of software, which routinely claim that everyone who uses unlicensed proprietary software would have bought a licensed copy if the unlicensed one hadn’t been available – an error known as the “lost sale myth”.
This time, the BSA argues that most Free Software licenses are compatible with RAND licensing of patents as we know it. That is clearly bunk. More than 85% of Free Software projects are distributed under licenses that are incompatible with RAND licensing. The exception are non-protecting MIT and BSD-type licenses.
Microsoft’s Wilfried Grommen argued at the Internet Governance Forum 2010 that RAND licensing is compatible with Open Standards. A week later, at the Westminster eForum in London, Francisco Mingorance, the BSA’s Senior Director Government Affairs, made the same point (have a look at Glyn Moody’s article on the event here).
Last week at WIPO, during the 15th session of the Standing Committee on Patents, a side event took place to inform WIPO delegates on the relation between patents and standards. Two figures on the panel were Benoit Mueller, formerly the BSA´s Director of European Software Policy; and Jonathan Zuck of the “Association for Competitive Technology“, a group that pushes for software patents. Both of them argued that RAND licensing of patents in standards was compatible with Free Software, and that governments shouldn’t express even the mildest of recommendations for Open Standards in software.
Somehow we weren’t surprised to see exactly those arguments repeated in the BSA’s letter to the European Commission, signed by Francisco Mingorance.
Then there’s Florian Mueller, who is a bit of a special case. He claims credit for opposing software patents in Europe back in 2005, which used to buy him some credibility in the Free Software community. Recently, however, he has been running around the web as an “independent software developer” (here’s a typical quote), echoing the same message as Microsoft and the BSA in his blog, and in various comment threads. When challenged, he admits to being paid, but won’t say by whom:
What I have done is some work in connection with competition cases, which is explicitly exempt under the European Commission’s transparency rules. You’re not in a position to ask for more of a disclosure than the Commission does.
While I have no problem in principle with people lobbying for whatever they care about – hey, free speech –, doing it without disclosing who’s backing you strikes me as morally challenging. (You can find FSFE’s list of supporters here.)
In it for the long run
The European Interoperability Framework is just one battle among many. Besides the topic of interoperability in the public sector, there’s the task of reforming standardisation systems so that they produce Open Standards, and educating policy makers about the importance of the issue. I’m sure we’ll meet the BSA and its friends many times during this long-term effort. We’ll have to keep dealing with the Hydra’s heads for some time yet.