Software industry reclaims open standards debate

Software heavyweights filled the first meeting of the UK’s extended public consultation on open standards last Friday, closing down telecoms patent advocates whose arguments had threatened to derail government policy.

Deputy government CIO Liam Maxwell had the night before extended the consultation for a month after discovering Microsoft, lead opponent of the UK’s open standards policy, had been paying an independent Cabinet Office facilitator to help formulate its case. Government supporters had till then shown a lacklustre response to the consultation, while the policy, and open standards, had looked lost for the UK.

By Friday lunchtime the tables had turned.

Linda Humphries, Cabinet Office official, told a meeting of around 30 mostly software experts that the fields from which the government’s opponents had been drawing their evidence was out of bounds for the consultation.

“The consultation is focusing on open standards in specifications for software interoperability, data and document formats,” she said, with Maxwell looking on.

“It doesn’t go into hardware, telecoms or software IP. There are some people concerned we are trying to run away with [their] IP. That’s not the point at all. What we are talking about is standards,” she said.

The meeting nevertheless dwelt for a significant time on just those things as the software industry staked its territory in what seemed like a pivotal moment for both it and the coalition government’s ICT strategy.

Empty lobby

Microsoft’s opposition to UK policy had been predicated on standards derived from hardware and telecoms. Representatives of those industries had dominated the last and now discredited consultation meeting. On Friday they were vastly outnumbered.

Steve Mustkoski, the Microsoft worldwide policy director who had led the vendor’s lobbying effort in London, was registered but did not appear. Likewise his colleague, OASIS director Peter Brown. Andrew Hopkirk, the Microsoft consultant whose conflict of interest had been the cause of this sudden change in fortunes, did take his place at the table, even as stories about him broke in the trade press. He introduced himself as an independent advising Microsoft on the consultation and otherwise remained silent.

The meeting heard instead, for two hours, a relentless case for open standards. A handful of telecoms experts tried to sustain their industry’s case for patents in software standards. But their arguments did not stand to scrutiny nor the onslaught of statements made by software heavyweights mustered by the open source software industry, who included a Queen’s Counsel and a former counsel for the US government.

Iain Mitchell QC, representing Open Forum Europe, an open source campaign group collaborating with government, gave two examples of situations the government’s open standards policy sought to debar: democratic lock-out and commercial lock-in, created in both cases by proprietary software.
Iain Mitchell QC.png
Slovakian tax payers had been ordered to file their returns online using a system that would only work for people who used Microsoft software, said Mitchell. While an unnamed public authority in Scotland might become a test case for European law over its inability to choose any system for a £25m procurement but the one designed by a prior software supplier.

Open lobby

There was no debate on these points, though Humphries had said they were what the government’s policy was all about – that and creating a level playing field for open source software, an election commitment to which the government intended to stick.

John Newton, chairman and chief technology officer of Alfresco Software, one of the larger open source suppliers, illustrated the Cabinet Office case for a level playing field.

Alfresco had sought to make its content management system interoperate with Microsoft’s “monopoly” Office software but was scared off by it’s patent-encumbered FRAND licence terms. Their assurances were both too complex and too vague to give an open source supplier enough legal certainty to take them up.

It would “completely screw up” Alfresco’s open source business model, he said.

FRAND – the patent-bearing, ‘fair, reasonable, and non-discriminatory’ licence terms at the heart of Microsoft’s case against UK policy – was about the only matter over which the room heard any disagreement.

Keith Mallinson, a telecoms consultant, said the majority of the world’s standards exacted royalty payments under FRAND terms. Mallinson believed UK policy excluded FRAND. It was therefore to be assumed it would exclude just about any standard you cared to mention, and to be deduced that it was hair-brained.

Keith Mallinson - WiseHarbor.jpgExcept that the British Standards Organisation had told Computer Weekly the vast majority of standards it and the International Standards Organisation authorised did not exact royalties at all.


Andrew Watson, technology director of the Object Management Group, a software engineering standards body, had attended the meeting to make exactly that point.

“We have a policy that in theory allows either free licences or reasonable and non-discriminatory licences,” he said.

“In practice, in almost 20 years we have almost never published a specification that requires any money to be paid for a licence.

“We maintain about 177 specifications. One of them is encumbered by two patents. The holders agreed to licence them royalty free,” he added.

Mark Bohannon - Red Hat.jpgMark Bohannon, vice president of public policy at Red Hat, said he had the same experience when previously he was chief technology counsel for the US government’s National Institute for Standards and Technology.

“We were involved in everything from toilet seats to encryption,” he said. “On the whole, most standards do not have encumbrances that are relevant to this discussion. In our experience in software, most standards are not encumbered.”

The telecoms experts, however, would not heed Humphries’ request that patents were out of bounds. This was because Exhibit A for the patent lobby’s case against open standards has been the patent-encumbered Mpeg audio and video compression formats.

Paul Jenkins, head of Strategic Programmes at BT, who professed a background in telecoms hardware, brought the topic up. It had been centre-piece in Microsoft’s backroom lobbying of the Cabinet Office last year. The story goes that Mpeg is an example of how well a patent-encumbered standard can support a thriving market.

Paul Jenkins - BT.jpgYet the reason the patent lobby thinks government should embrace Mpeg is the same one for which the open software movement condemns it. Mpeg had originally been specified with hardware patents. When its compression algorithms were later implemented in software the patents stuck.

Hardware patents

Hence, said Mallinson, if UK government used open standards it would discriminate against hardware patent holders who happened to have gained a beachhead in software. This was particularly true of Mpeg, he said, in which the patented algorithms were inseparable from the standard.

The meeting was being drawn into a debate about software patents, another can of worms entirely. Move on to the next paragraph, quickly. Or otherwise, for a slithering taster, consider creating an open standard to govern the interoperation of software implementations using fundamental algorithms that are not only inseparable from their envelope, and which are not only patented under a US regime that permits mathematical formulas to be treated as property, but are also sanctioned in Europe (where patents are permissible only in software that is inseparable from specific underlying hardware) by virtue of their hardware heritage, even though they are now imposed on software running on general hardware over which patents would not normally be permitted at all. It’s not possible, not an open standard.

Just as well the consultation was not about patents. It was, as IBM technical policy lead Chris Francis and others noted repeatedly, about how government could best exercise its prerogative as a customer buying software.

That was not however simply a matter of buying systems that employed open standards. As Open Source Consortium chairman Gerry Gavigan alluded, the government is a very large customer that can’t adjust its seat without creating a gust with enough power to move markets. Hence government’s concern for level playing fields and Slovakian democratic participation, as well as Scottish tax payers.

Hence also the patent lobby’s complaints that an open standards policy would exclude them. UK policy wouldn’t actually exclude them. But ignoring that fact, as the patent lobby did, the central question for the consultation meeting was therefore, what is a level playing field. That is, what is a free market for software, as opposed to a market for free software. Was it one sculpted by open standards or patented standards?

Kevin Marks - Salesforce dot com.jpg
Fortunately for UK government, software experts with first-hand experience of Mpeg and telecoms patents had come from as far afield as Silicon Valley to state their case.

“The patent thicket around video has prevented progress in that for at least 20 years,” said Kevin Marks, vice president of open cloud standards at, who had implemented Mpeg4 in Apple’s QuickTime player while working there at the turn of the millennium.

Marks said he had wanted to endow Apple’s software with the means to handle open source alternatives to Mpeg. Mpeg’s FRAND patent policy had prevented him.

“I was told by the VP at Apple, ‘No we cannot do that because we’ve already taken licences to these other patents – they will withdraw that from us if we try and do that’,” he said.

It was to be taken as an example of how patents could erect unhealthy barriers in a free market. Apple had continued having the same problem, said Marks.

“If you read the discussions about video codecs for HTML5, this is pretty much Apple’s position. Apple said we cannot ship these codecs because we may get our licences to Mpeg withdrawn and that will effect our ability to sell iPods that play video,” he said.

Notwithstanding that Apple had also been lobbying against the UK government’s open standards policy, Phil Archer, eGovernment consultant for the World Wide Web Consortium, told the meeting confirmed its HTML5 standard had that problem.

“HTML5 has a video tag in it. And there have been arguments back and forward about which standard we should choose. We ended up deciding to choose none of them. Because we can’t,” he said.


Their point was that patents had hamstrung even the most successful of open standards bodies. The hamstrings would tighten round the UK too if government wasn’t resolute about open standards.

The problem was that standards defined in FRAND terms allowed patent holders to claim royalties on anyone who wanted to play. It is the equivalent in software of Aston Martin being permitted to sell its sports cars in the European single market only through Renault dealerships, and for a fee.

Playing fields like the W3C’s World Wide Web and the Object Management Group’s Unified Modelling Language had thrived because they were defined using open standards that ensured everyone competed on the same terms.

Archer said companies contributed to the Web standards process without expecting to charge an internet toll. They understood “they get money back by the fact that the Web exists and we can all make money out of it.”

This was the unanimous opinion of those standards experts present.

“People who claim open standards but make proprietary claims prevent the standard from working,” said Bohannon. Things worked different in the hardware industry, he said. Things worked the opposite way around.

The debate had found a roundabout way of clarifying Humphries’ opening statement that hardware, telecoms and patents were out of bounds for the UK’s software consultation.

It was a necessary digression. Because the meeting was held in the shadow of the immense patent dispute being fought by the larger telecoms and software corporations in international courts. The hardware patent brigade has been making a land grab for the software domain. It has whipped up a storm that has rattled at the cage where the Cabinet Office keeps its policy team, just as it rattled at the doors of its consultation meeting on Friday.

The UK had with its open standards policy promised to create a place of sanctuary for software producers harried by bullyboy patent holders. Those software multinationals that have been trying to disturb the peace are the very same that have been using patents to crush Android, Google’s open source mobile operating system: Microsoft, Oracle and Apple. Their big-booted mates in the telecoms industry have now barged through the door of the UK’s open standards consultation. They want to call the shots. They want to extract fees at the points where software producers make their programmes talk to one another. They have laid down terms. Their terms are FRAND.

Tanks > lawn

Simon Phipps.jpgSimon Phipps, head of Sun Microsystems’ open source programme until it was sold to Oracle, effectively told the telecoms experts, you are not wanted here.

“Their counsel is inapplicable to this consultation because this consultation is about the software market not the mobile phone market,” he said.

The mobile and software markets worked on different terms, said Phipps, who had been a founder member of the Open Mobile Alliance, a telecoms standards body.

The mobile industry had sunk high capital costs into hardware it tried to recoup by claiming royalties over standards. The software industry did not. It co-operated in standards bodies like OASIS and the W3C to produce royalty free standards for the sake of the market. When the mobile industry veered into software territory, it tried to deal on its own terms. But the terms of competition in software were more subtle, he implied. Tolls where inapplicable.

Phipps accused the telecoms industry of running standards bodies that were “effectively a legally-arranged cartel”. Gavigan said US legal precedent had created a possibility that they could be defined as such: they colluded, or co-operated, or whatever, for the purpose of locking out competitors.

Ram in Thicket - Sidney Nolan - 1982 - Wolseley Fine Arts Catalogue - Prints 2009.pngMallinson conceded Mpeg LA, a ‘patent pool’, was trolling software producers it might hit with patent fees. That effectively meant open source software producers.

Mpeg LA were not there to speak for themselves. But the outcome of the meeting would have been no different. They do not belong here. That’s what the Cabinet Office said.

That is the way it will be unless the patent lobby manages to encumber UK software policy in a patent thicket as well.