Last year, one of the key themes of this blog was the battle over version 2 of the European Interoperability Framework, and its definition of open standards. As I noted in December, that battle was essentially lost, thanks to the following sentence:
On Open Enterprise blog.
As readers of this blog will know, interoperability is a key issue in Europe at the moment. We are still waiting for the imminent version 2 of the European Interoperability Framework, where we will find out whether true restriction-free open standards will be recommended, on deeply-flawed ones based on FRAND licensing that for practical purposes exclude many free software projects.
On Open Enterprise blog.
A little while ago I wrote about the worrying signs that the imminent Digital Economy Agenda, currently being drawn up by Neelie Kroes, was under massive pressure to water down its commitment to openness and interoperability. The good news is that ranged against those negative forces, there are others working for a fairer approach, as manifest in the Granada Ministerial Declaration on the European Digital Agenda[.pdf]:
On Open Enterprise blog.
Open source is under attack in Europe. Not openly or obviously, but in the background, behind closed doors. The battleground is the imminent Digital Agenda for Europe, due to be unveiled by the European Commission in a month's time, and which defines the overall framework for Europe's digital policy. According to people with good contacts to the politicians and bureaucrats drawing up the Agenda, Microsoft is lobbying hard to ensure that open standards and open source are excluded from that policy - and is on the brink of succeeding in that aim.
We need to get as many people as possible writing to the key Commissioners *now* if we are to stop them. Details of who to write to are given below. To help you frame things, here's some background on what's at stake.
On Open Enterprise blog.
Neelie Kroes, European Commissioner for Competition Policy, had some news this morning:
Today is an important day for internet users in Europe. Today, the Commission has resolved a serious competition concern in a key market for the development of the internet, namely the market for web browsers. Now - for the first time in over a decade - Internet users in Europe will have an effective and unbiased choice between Microsoft’s Internet Explorer and competing web browsers, such as Mozilla Firefox, Google Chrome, Apple Safari and Opera....
On Open Enterprise blog.
Since it's Monday morning, I thought I'd start the week gently, with a little humour, courtesy of a Microsoft job ad. After all, who could read the following without laughing?
On Open Enterprise blog.
It's hard to believe that there was such sound and fury when OOXML was being pushed through the ISO process. At the time, it seemed like the end of the world, since it looked like Microsoft had succeeded in obtaining a nominal parity with ODF, which had been approved earlier.
My, what a difference a year makes....
On Open Enterprise blog.
Just in case you thought things were getting a little dull in the world of UK computing compared to, say, UK finance, here comes the BECTA roller-coaster again....
On Open Enterprise blog.
I've noted before that writing to MPs/MEPs seems to be remarkably effective in terms of generating a response. The naïve among us might even assume that democracy is almost functional in these cases. I'm not sure whether that applies to something as large and inscrutable as the European Commission, but it's certainly worth a try, especially in the context of open source and open standards.
Here's an opportunity to put that to the test....
On Open Enterprise blog.
This seems a rather low-key announcement of a suprisingly strong policy:In a document published last week, the EC states among others that the Commission will prefer Open Source software for its new IT projects: "For all new development, where deployment and usage is foreseen by parties outside of the Commission Infrastructure, Open Source Software will be the preferred development and deployment platform."
According to the document, the EC is an early adopter of Open Source. A first strategy document on this type of software was presented in 2000. However, it is for the first time the European Commission publishes such a document. Valerie Rampie, spokesperson or Siim Kallas, the European commissioner who is responsible for administrative affairs, said the publication of the strategy is "mainly for information purposes".
The EC writes that its IT community early last year had adopted its Open Source strategy after "a thorough consultation within the community". Next from stating its preference for Open Source for new projects. the EC decided that "for all future IT developments and procurement procedures, the Commission shall promote the use of products that support open, well-documented standards. Interoperability is a critical issue for the Commission, and usage of well-established open standards is a key factor to achieve and endorse it.
Slightly curious that it moves anti-climactically from open source to open standards, with the dreaded "interoperability" - Microsoft's favouriate weasel-word - slithering in. I hope that there isn't anything Machiavellian happening in the EU shadows here.... (Via Simon Phipps.)
Update: And the US Navy, too.
Amongst many other things, one matter that they order better in France is the production of government reports with a grand sweep. One was published a couple of days ago, with the self-explanatory title Rapport de la Commission pour la libération de la croissance française.
Well, anything that talks about "libération" obviously makes my one-track mind think of free software, and I wasn't disappointed, since one of the report's proposals is about precisely that:Promouvoir la concurrence entre logiciels propriétaires et logiciels « libres ».
Le patrimoine d’applications dites « libres » ou « open source », créées par une communauté active, représente l’équivalent de 131 000 années/hommes, dont pratiquement la moitié provient de programmeurs européens. Si le coût virtuel en est de 12 Md €, le coût réel est de 1,2 Md € et les communautés de logiciels libres s’engagent gracieusement à proposer en continu des améliorations et des applications. Le logiciel libre induit une économie moyenne de 36 % en recherche et développement pour les entreprises utilisatrices. Il permet de créer une concurrence pour les logiciels propriétaires, dont les avantages sont différents. Leur part de marché n’est aujourd’hui que de 2 % (avec une croissance annuelle de 40 %) contre 98 % pour les logiciels dits « propriétaires ». Pour développer la concurrence, une série d’actions est nécessaire :
• Promouvoir la concurrence entre les logiciels propriétaires et les logiciels libres dans les appels d’offres, notamment publics. Un objectif de 20 % des applications nouvellement développées ou installées au profit du secteur public en open source pourrait être fixé à l’horizon 2012.
• Considérer fiscalement, comme aux États-Unis, les aides aux communautés des logiciels libres comme du mécénat de compétence.
• Exiger, à un niveau européen dans le cadre de la politique de la concurrence entre solutions logicielles, la fixation de normes internationales garantissant l’interopérabilité entre logiciels libres et les logiciels propriétaires, en priorité.
There are some important points here.
First, that out of 316 recommendations, one should be explicitly about free software. Secondly, that the virtue of promoting the increased use of free software over proprietary software is recognised. Thirdly, there is an ambitious target that 20% of new installations of software by the French government should be open source by 2012.
Finally, and in some ways most importantly, there is a call for interoperability between free software and proprietary code to be mandated at a European level. In the context of Microsoft's recent setback at the hands of the European Commission on precisely this point, I think we can see which way the wind is blowing.
Vive l’interopérabilité!
One word is starting to crop up again and again when it comes to Microsoft: interoperability - or rather the lack of it. It was all over the recent agreement with the EU, and it also lies at the heart of the OpenDocument Foundation's moves discussed below.
And now here we have some details of the next interoperability battles:the EU Competition Commissioner’s office, with the first case decided by the EU Court of First Instance, now has started working intensively on the second case.
The new case involves three main aspects. First, Microsoft allegedly barred providers of other text document formats access to information that would them allow to make their products fully compatible with computers running on Microsoft’s operating systems. “You may have experienced that sometimes open office documents can be received by Microsoft users, sometimes not.”
Second, for email and collaboration software Microsoft also may have privileged their own products like Outlook with regard to interfacing with Microsoft’s Exchange servers. The third, and according to Vinje, most relevant to the Internet and work done at the IGF, was the problem of growing .NET-dependency for web applications. .NET is Microsoft’s platform for web applications software development. “It is a sort of an effort to ‘proprietise’ the Internet,” said Vinje.
That's a good summary of the problems, and suggests that the Commission is learning fast; let's hope that it doesn't get duped when it comes to remedies as it did the last time, apparently fooled by Microsoft's sleights of hand over patents and licences.
I could feel it in my bones: the great victory of the EU over MS is a sham. Here's why.
Ex-steely Neelie - to be renamed wheeler-dealer Neelie - said as follows:
I told Microsoft that it should give legal security to programmers who help to develop open source software and confine its patent disputes to commercial software distributors and end users. Microsoft will now pledge to do so.
And naively, I thought that meant what it said. Silly me. Reference to the rather low-profile EU FAQ clarifies:
Can open source software developers implement patented interoperability information?
Open source software developers use various “open source” licences to distribute their software. Some of these licences are incompatible with the patent licence offered by Microsoft. It is up to the commercial open source distributors to ensure that their software products do not infringe upon Microsoft’s patents. If they consider that one or more of Microsoft’s patents would apply to their software product, they can either design around these patents, challenge their validity or take a patent licence from Microsoft.
WTF?!? "Some of these licences are incompatible with the patent licence offered by Microsoft" - what, you mean like - choosing totally at random - the GNU GPL, as used by Samba, the only program that really cares about Microsoft's damn protocols?
And let's not forget that this "patented interoperability information" isn't even valid in Europe, because you can't patent software or business methods or whatever you want to call this stuff. And yet the EU has just passed a quick benedictus on the whole bloody thing.
This is a total and utter cop-out, and confirms my impression that politicians are a total waste of skin. But don't take my word for it, read those of someone who understands what's going on far better than me, Pieter Hintjens, of the FFII:I've watched the emerging deal between the EU and Microsoft over the last weeks with increasing skepticism. From the moment the ECJ decided that Microsoft was indeed guilty of abusing its dominant position, it seemed clear that the vendor was negotiating its way through the wet paper bag that the EU - indeed the global - anti-trust policy has become.
The EU Commission steps down in 2009, and any appeal would have taken three years at least, damning Kroes and her department to eternal infamy as the anti-trust team who could not get Microsoft to back down.
Now Kroes can retire with glory, and Microsoft has to start behaving. But as the Las Vegas saying goes, every game has a patsy, and if you don't know who the patsy is, chances are it's you.
Microsoft pays the EU its fine, plus additional costs. It's perhaps a month or two of net profit for the vendor. The EU gets its paper victory. And what about open source?
Read it, and weep.
Update: More analysis from Groklaw seems to confirm the details.
I didn't write about Microsoft's capitulation to steely Neelie earlier because the open source aspect seemed unclear. Trust Matthew Aslett to dig up the official details of her announcement:I told Microsoft that it had to make interoperability information available to open source developers. Microsoft will now do so, with licensing terms that allow every recipient of the resulting software to copy, modify and redistribute it in accordance with the open source business model.
I told Microsoft that it should give legal security to programmers who help to develop open source software and confine its patent disputes to commercial software distributors and end users. Microsoft will now pledge to do so.
I worry that there's some wiggle room here - just what exactly is "the open source business model"? - but given the soundness of its thrashing, maybe Microsoft really has given up fighting the EU. Let's hope.
I suppose it's worth pointing out the huge symbolism of this win. Microsoft, a company built on black box nature of its code, and on using its proprietary interfaces to lock out competitors, has been forced to open up those interfaces - something that would have been unimaginable ten years ago. So deeply has openness now entered the system.
A few months back I wrote a feature about the importance of making open source apps play nicely with each other. One of the key players here is the Open Solutions Alliance. A good place to find out more about this organisation is its newsletter, whose latest edition has just appeared.
What's most interesting about the European Court of First Instance upholding the European Commission's main actions against Microsoft (striking down one) for abusing its dominant position is the depth of technological understanding it displays. For example, here are the comments on the interoperability issues that are problematic for Samba:First, the Court confirms that the necessary degree of interoperability required by the Commission is well founded and that there is no inconsistency between that degree of interoperability and the remedy imposed by the Commission.
The Court then observes that the Commission defined interoperability information as a detailed technical description of certain rules of interconnection and interaction that can be used within Windows work group networks to deliver work group services. The Court notes that the Commission emphasised that Microsoft’s abusive refusal to supply concerned only the specifications of certain protocols and not the source code and that it was not its intention to order Microsoft to disclose its source code to its competitors.
The Court also considers that the aim pursued by the Commission is to remove the obstacle for Microsoft’s competitors represented by the insufficient degree of interoperability with the Windows domain architecture, in order to enable those competitors to offer work group server operating systems differing from Microsoft’s on important parameters. In that connection, the Court rejects Microsoft’s claims that the degree of interoperability required by the Commission is intended in reality to enable competing work group server operating systems to function in every respect like a Windows system and, accordingly, to enable Microsoft’s competitors to clone or reproduce its products.
As to the question of the intellectual property rights covering the communication protocols or the specifications, the Court considers that there is no need to adjudicate on that question in order to determine the case. It observes that in adopting the decision the Commission proceeded on the presumption that Microsoft could rely on such rights or, in other words, it considered that it was possible that the refusal at issue was a refusal to grant a licence to a third parties, thus opting for the solution which, according to the case-law, was the most favourable to Microsoft.
As regards the refusal to supply the interoperability information, the Court recalls that, according to the case-law, although undertakings are, as a rule, free to choose their business partners, in certain circumstances a refusal to supply on the part of a dominant undertaking may constitute an abuse of a dominant position. Before a refusal by the holder of an intellectual property right to license a third party to use a product can be characterised as an abuse of a dominant position, three conditions must be satisfied: the refusal must relate to a product or service indispensable to the exercise of an activity on a neighbouring market; the refusal must be of such a kind as to exclude any effective competition on that market; and the refusal must prevent the appearance of a new product for which there is potential consumer demand. Provided that such circumstances are satisfied, the refusal to grant a licence may constitute an abuse of a dominant position unless it is objectively justified.
It's impressive that m'luds grok the difference between the protocols and Microsoft's code that implements them. I half expected them to get their wigs in a twist and buy Microsoft's line that handing over the protocols was the same as handing over the code. Happily, the judges saw through this attempt at muddying the waters, and came out with a well-argued decision that looks likely to withstand Microsoft's inevitable appeal.
Sounds cool:James Boyle ... announced that a new project, called “CC Learn”, has been launched, to work on lobbying all the open education projects to use open licenses, and to be interoperable and reusable. Hewlett has now funded this project, and a Director has been hired. I’ve got some inside information I can’t disclose (sigh) but I can say that there are really big things happening inside CC Learn and that they’re getting a huge amount of traction...
Well, it looks like the world of free software can cross another company off its Christmas card list:Microsoft and Linux distributor Xandros announced on Monday a technical and legal collaboration, the latest step in the software giant's ongoing program to partner with open-source companies.
Over the next five years, the two companies said, they will work on improving interoperability between their servers to improve systems management.
The pact calls for Microsoft to provide patent covenants for Xandros customers that ensure they are not infringing on Microsoft's intellectual property, according to the companies.
Er, didn't another company recently do something similar? With rather negative consequences...?
Last week I noted a highly partial piece of writing that leapt to Microsoft's defence over its dispute with European Commission. And what do we have here? Why, a highly partial piece of writing that leaps to Microsoft's defence over its dispute with European Commission:the Commission alleges that Microsoft has established "unreasonable" prices for its protocol licensing of its server technology in Europe. The Commission characterizes Microsoft's proprietary server software protocols, which is protected by patent, copyright and trade secret law, as containing "virtually no innovation." The Commission then remarkably concludes that everyone in the industry, nonetheless, "needs" Microsoft's protocols, and that Microsoft should provide them "royalty-free." What the EC demands in the end is that Microsoft make its intellectual property available to its competitors for free.
Now, where have I heard that before? Oh, yes:The heart of the commission's theory, to quote its press release, is that "there is no significant innovation in the interoperability information" supplied by Microsoft and "hence the prices proposed by Microsoft are unreasonable." On this basis, the assertion is that Microsoft may charge only a nominal fee for the 10,000 pages of technical documentation it has provided and may face fines of up to 2 million to 3 million euros a day if the company does not yield.
The commission is silent on some inconvenient truths. European and U.S. patent offices have awarded Microsoft 36 patents for the technology in these interoperability protocols, and the company has an additional 37 pending applications being reviewed by patent offices around the world.
In order for technology to be patentable, it must be novel, "non-obvious," and make a technical contribution—in short, it must be innovative. What's more, trade secrets and knowhow also are valuable intellectual property, valued independently of their patentable character and protected by law and precedent internationally and in the EU. Indeed, the World Trade Organization's TRIPS agreement, to which all EU 27 member states are bound, expressly protects undisclosed information as a form of intellectual property, different from but co-equal with patents.
Uncanny: it's almost as if they were part of a concerted campaign, or something.
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