Proprietary lobby triumphs in first open standards showdown

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Software patent heavyweights piled into the first public meeting of the Cabinet Office consultation on open standards on 4 April, conquering the meeting ballot with a resounding call to scrap the government's policy on open standards.

Open source and open standards campaigners complained they hadn't been invited to the Round Table event, the proceedings of which Cabinet Office will use to decide the fate of its beleaguered open standards policy.

Government supporters felt a growing sense of urgency over the consultation. Scattered and underfunded, they looked incapable of standing up to the big business interests that induced the consultation with backroom lobbying and have stepped forward now the debate has been brought out into the open.

Computer Weekly understands Cabinet Office officials regretted they hadn't got the meeting call out to a wider audience. Open standards supporters who attended complained it was stacked with opponents who easily dominated a meeting motion against the government's open standards policy.

Linda Humphries, Cabinet Office open standards official, said yesterday in a blogged report of the meeting: "The consensus was that the... proposed policy would be detrimental to competition and innovation."

Graham Taylor, chief executive of Open Forum Europe, which has worked closely with Cabinet Office IT policy makers, said he was "disappointed" the meeting hadn't been "representative".

Malcolm Newbury, consultant director at Guildfoss, said: "It was me and Graham against the rest. The patent lawyers had the most to say and they definitely wanted to include royalties on standards. They don't want the government to maintain its current position."

Heavyweights at the meeting included Steve Mutkoski, Microsoft's global head of standards, who flew in from Seattle. He was backed in debate by patent lawyers and experts from the telecoms industry that holds many of the patents being wielded against government policy.

Matthew Heim, senior director and legal counsel for $16bn US telecoms corporation Qualcomm, was present. As was Timothy Cowen, partner with Sidley Austin LLP, former general counsel for BT and founder of the Microsoft-backed Open Computing Alliance.

Behind them was Richard Kemp, senior partner at Kemp Little LLP, the "global top 10" ranked lawyer who represents numerous telecoms firms as well as record industry royalty collectors; Keith Mallinson, founder of WiseHarbor, a telecoms industry consultant; and Harshad Karadbhajne, a paralegal patent expert with Innovate Legal.

The debate swung wide of the truth as heavyweights complained government policy would exclude the patented software standards supported by their preferred software licence, known as FRAND - Fair, Reasonable, and non-Discriminatory.

Government policy, withdrawn under organized pressure from the patent lobby last year, had however not excluded FRAND. It had proposed giving preference to royalty-free software standards in government systems, but conceded FRAND standards might be used when there was no alternative.

That is the matter now in consultation. The patent lobby swiped the initiative with arguments that will feed those who accused it of using misinformation to win similar debates in other places, most notably Brussels, where a significant huddle of the heavyweights cut their teeth.

If they failed to expose genuine flaws in government policy, they at least focused attention on the points where government justification has appeared weakest. Cabinet Office's proposal for a mandatory list of open standards was unfair, they argued, because it would forbid standards encumbered with patents. This was however the whole point of the open standards policy, notwithstanding that it had, again, conceded patent-encumbered standards would be tolerated where no open standards where available.

These are the arguments with which the patent lobby induced government to withdraw its open standards policy last year and put it to consultation.

Open source campaigners said they had been left out. Gerry Gavigan, chairman of the Open Standards Consortium complained the meeting had been held without his knowledge. Linda Humphries had just days before attended a British Computer Society meeting where Gavigan delivered a talk about her policy consultation. Gavigan had locked antler's with Microsoft's Mutkoski at the meeting. But Humphries had not brought the Cabinet Office event to people's attention.

Richard Melville, a member of the BCS Open Source specialist group, said: "No-one seemed to know about the meeting at all."

Simon Phipps, former head of open source at Sun Microsystems, and who also regretted missing the meeting said: "I'm hearing from sources that the Cabinet Office hasn't had much input from open source interests and is being lobbied extremely heavily by the forces of monopoly."

Other people at the meeting included Peter Brown, secretary to the board of standards body Oasis, who argued forcefully in favour of patent-encumbered standards. And also Ajit Jaokar, founder of research company Futuretext, a telecoms expert with a self-professed leaning for open systems; Dr Andrew Hopkirk, an independent consultant, formerly of the National Computing Centre; and Aingaran Pillai, open source software engineer and founder of Zaizi, an Alfresco systems integrator.

5 Comments

  • The article includes a detailed list of many attendees, but this inexplicably excludes several government representatives who agreed with the meeting consensus.

    Most open standards include standard-essential patents. For example, WiFi, GSM/HSPA and H.264 have succeeded with extensive functionality and widespread adoption due to major commitments and investments from many different contributors. These leading standards deserve to be much more than just “tolerated” when it is not possible to find anything that purports to do a similar job royalty free.

  • Mark

    There are a number of areas where your article over simplifies things

    I will blog more on my blog later this week, but here are some initial comments

    a) As I understood it, this was a first of a series of meetings – and not a ‘result’ as you imply.

    b) There were many other attendees you did not include – ex from Cabinet office, Ministry of justice etc

    c) You mention ‘telecoms’ – and yes – that’s where I come from as well. It is overly simplistic to exclude telecoms from the argument of open standards. When we include Telecoms, we also see the value of IPR in standards. Many successful standards like GSM which have licensing that includes IPR – and have been proven to be successful. We will see the same discussions for HTML5 as well ie it is a web standard but with implications for the mobile web

    d) Many in telecoms see it as a slippery slope – ex the standards hub Standards hub http://standards.data.gov.uk/ - covers a wider discussion of standards. So, I see an artificial dichotomy in separating telecoms and hence agree to the belief that competition and innovation will be enabled through a more telecoms-like standards approach – ex through FRAND.

    e) Excluding such companies and innovation will be detrimental to the interests of UK companies and startups ex a UK company like picochip depends on IPR to create innovation (http://blog.bathdigital.com/2012/01/24/picochip-acquired-by-mindspeed-for-up-to-76-8m/)

    I look forward to continuing the discussion
    Kind rgds
    Ajit

  • Computer Weekly editor's note:

    Andrew Hopkirk, who chaired the open standards meeting, contacted Computer Weekly after this blog post was published and asked to write a response. His response is detailed and extensive, and as such not well suited to being posted on here as a comment. We have published his response in full separately, and it can be read here:

    http://www.computerweekly.com/opinion/An-insiders-view-on-the-government-open-standards-consultation

  • Editor's note: The following comment has been provided by Peter Brown, a delegate at the open standards meeting, who is mentioned in the blog post. He asked us to post this comment on his behalf:

    Mark,

    Your prose, unquestioned, would leave readers feeling that they were attending a very different meeting than the one you reported upon and that I attended.

    Andy Hopkirk has already addressed many of the inaccuracies in his reply to you, including those concerning my participation. Like Andy, I grow weary of unsubstantiated assertions bandied around by interest groups but my concern here is that you seem to have abandoned journalistic impartiality to join such voices.

    Your whole article is couched in a way that would leave the reader thinking that some plot was uncovered to overturn well thought out government policy. To be clear:

    - Everyone at the meeting without exception supported open standards – it is untrue to state, and imply throughout, that there was a powerful ‘proprietary lobby’ against open standards;

    - Everyone at the meeting understood the questions upon which the straw poll vote was taken, as we had discussed both issues (the impact on competitiveness and innovation of the Cabinet Office’s definition (my emphasis) of open standards and their proposal to mandate specific standards) in detail in smaller groups beforehand – the vote was not a “resounding call to scrap...open standards”;

    - The ‘policy’ in question is the UK Cabinet Office’s proposal for UK government policy. At the meeting, all government departments present also voted with the large majority;

    - Open standards and open source are orthogonal issues – open source wasn’t the debate here (as Graham Taylor rightly points out in a separate comment) and yet your article clouds the distinction, rolling the two issues into one – however, one can be strongly in favour of open standards and remain sceptical or even hostile to open source as a business model. Every single person you quote is an open source advocate (and most were not at the meeting) – they are not speaking on open standards – and in doing so you sustain the idea of one group pitched against another;

    - There is not a binary choice between standards that include patents and those that do not: a “standard” may have patents imposed, ‘take it or leave it’ style (certainly not open); some standards may require patented technologies which are licensed under fair terms (so-called “FRAND”), which includes many that most of us would call open standards, such as those cited by Keith Mallinson in his comment above; there are standards which require patented technologies which the patent owner ‘covenants’ over to a standards body with a commitment not to assert or sue anyone using them, such as the oft-cited ODF. That is clearly an open standard but it is nonetheless ‘encumbered’ by patents! I give these examples not as hard and fast categories but only to underline that that simply waving a banner with the word 'Open' is not enough – it’s more complex than that and that is they way the market likes it – a range of standards, a range of business models, a range of implementations.

    - In response to the claim that patents and intellectual property were barriers to small businesses, I pointed out in our breakout session that the government’s own Intellectual Property Office seemed to disagree (as I did, from my own experience as founder of an SME and who has worked with open source as well as with the proprietary platforms of Apple and Microsoft).

    What worried me most about the tone of the original article (and, it has to be said, of an extremely vocal group of open source enthusiasts) was an underlying sense that something ‘evil’ is being plotted against an ‘evidently’ decent government policy. No analysis was offered about where this draft policy came from, particularly as it is in marked contrast with the direction being followed by the European Union more generally. No analysis, except maybe inadvertently: you cite that Openforum Europe “has worked closely with …policy makers”. The fact that a powerful lobbying organisation promoting the interests of four major US tech firms (IBM, Google, Oracle, and Redhat) is working to secure a privileged position in any decision-making goes unremarked by such a fearless journalist but you get hot under the collar because one participant is a partner in a “Microsoft backed” legal firm?

    In conclusion, I feel that this meeting and others like it, should not become vicarious battlegrounds for tech giants to slug out battles that they can’t or won’t conduct elsewhere – at the end of the day, it should be about delivering the best technology-enabled services possible at the best price point. That is the work to which I am committed and I would encourage debate around those issues, the role that standards should play in enabling that without locking-in government to single suppliers and allowing for technology evolution and innovation.

    Peter Brown

  • I'm flattered by the lengths to which you chaps have gone to discredit my article. But you discredit yourselves by turning the report into a straw man to be attacked in such petty and misleading detail.

    The fact remains that the meeting was skewed heavily in favour of narrow interests by its composition.

    This was lamented by Cabinet Office officials and has led to complaints by people who back the government's open standards policy, as the article conveyed. The meeting held a vote which called against the government's open standards policy. That vote will be incorporated into the Cabinet Office consultation on open standards.

    The following is a full list of all those present at the meeting, according to documentation obtained by Computer Weekly:

    -------------------------------------------------------------------

    . Steve Mutkoski, global head of standards, Microsoft

    . Peter Brown, board secretary, OASIS

    . Dr Andrew Hopkirk, consultant (facilitator)

    . Chris Parker, CS Transform Ltd

    -------------------------------------------------------------------

    * Ajit Jaokar, Futuretext, telecoms expert

    * Timothy Cowen, lawyer, Sidley Austin LLP, former general counsel for BT and founder of the Microsoft-backed Open Computing Alliance

    * Matthew Heim, senior director and legal counsel, Qualcomm, a $16bn US telecoms corporation

    * Harshad Karadbhajne, paralegal patent expert, Innovate Legal

    * Richard Kemp, Kemp Little LLP, the "global top 10" ranked lawyer who represents numerous telecoms firms as well as record industry royalty collectors

    * Keith Mallinson, founder of WiseHarbor, a telecoms industry consultant

    * Sally Weston, patent law lecturer and telecoms industry expert on sabbatical from Bournemouth University

    -------------------------------------------------------------------

    - Aingaran Pillai, open source software engineer and founder of Zaizi, a systems integrator for the quasi-open source Alfresco content management system

    - Malcolm Newbury, open source consultant, Guildfoss

    - Graham Taylor, chief executive of Open Forum Europe, which convenes the Cabinet Office panel charged with assisting the implementation of government open source policy

    -------------------------------------------------------------------

    & Michelle Barker, head of software and IT services, Department of Business, Innovation & Skills

    & Christine Lewis, cross government and EU strategic alignment manager, Ministry of Justice

    & Kevin Doherty, enterprise architect, Cabinet Office

    & Aaron Yamoah, administrator, HM Treasury

    + Linda Humphries, Cabinet Office open standards policy official

    -------------------------------------------------------------------

    The respectable Dr Andy Hopkirk neglected to mention his associations with key members of this group when he summarised its constituents so dismissively.

    Hopkirk is himself a cohort of MutKoski, Parker, and Brown. They are all members of the OASIS Transformational Government Framework Technical Committee, an unusual policy lobby unit that is sponsored by Microsoft. All have been critical of either UK government policy or its objectives and have specifically opposed defining elements of the coalition government's open standards policy. They oppose elements of coalition policy that would disfavour software patents, which are not recognised anyway in British and European law.

    They were joined in the meeting by a considerable contingent of powerful representatives of the patent law and telecoms professions. Microsoft and other critics of government policy have been wielding patent-encumbered telecoms standards such as GSM and wifi in their backroom lobbying against government policy.

    Otherwise, the 19-strong group of people included three representatives of the open source industry, three representatives of the government customer and one Cabinet Office policy lead.

    Make of that what you will.

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