Balance of Contributors & Implementers: A Blog Answer to Rick Jelliffe’s Post

I love reading smart people’s blogs – and Rick is definitely among that group. I have really enjoyed reading his post, “Standards media formats and licensing: JPEG vs. MPEG” and then the associated post, “Balance of Interest.” In the first one, Rick referred to my recent post “Contribution, Collaboration, & Implementation” and has spurred me to comment further.

First let me say that I agree with Rick’s essential premise that having greater representation in standards working groups is a good thing. There is no question that vendors tend to dominate most working groups quite simply because standards are an expensive game. Between travel costs and time that equates to opportunity costs, staying engaged with a standards working group can be…well…costly. In fact there are some interesting solutions out there (if I’m not mistaken, the Australia national standards body had a fund set up from the coal industry that they manage in a neutral way for ISO participation by smaller interested parties).

If you look at many orgs, the rules are structured so that the more participants one org may send, the more votes they have. Of course, the rules may say that the individual is a member rather than their company – but who is paying their travel? their salaries? I’m not saying this in a pejorative fashion – just pointing out the reality of the environment in which many standards are created.

So – onto the point that Rick was questioning me about. He and I are using “balance” in different ways. He is speaking of balance on committees for the standards-setting process. No disagreement from me there. I’m speaking of the balance in respect to the discussion of “open standards” meaning that there should be no IP restrictions in the standard in order for it to be open. This is different.

The vast majority of ICT standards are created based upon some original contribution from a commercial entity. These submissions are done in order to lay the foundation for a standard, and that decision to contribute is based on the idea of getting some return on the contribution. The return is NOT necessarily about royalties. The return may be that a product that includes the standard as part of it will do better in the marketplace because of the broader adoption of the baseline technology as a standard. The return might be in improved interoperability of a given product or service due to the adoption of that standard. There are competitive reasons for contributions – the hope may be to displace a competitor who is using a non-standardized solution. There are many, many reasons. And yes – some seek royalties from the IP included in standards. (For Microsoft, this is very, very rarely the case. There have been a few examples, but we almost never seek royalties from IP in standards. Historically we have primarily earned our money based on packaged products.)

The balance issue I speak of stems from the idea that many in the “open standards” discussion have placed an over-emphasis on implementers of standards – particularly those who want to implement under licensing that conflicts with patent terms. Essentially the simplified argument is that because those licensing models are not compatible with patent terms, then there should be no IP protections in the standards process so those implementers can implement. That is not balance – that is imbalance.

As a society, we want contributions to standards to continue. If you make the standards environment hostile to contributors…they will contribute less. I don’t think anyone who supports the current “open standards” arguments I have suggested above would like the idea that the contributors start relying more on SIGs than formalized orgs. Probably sub-optimal.

I have no problem with the concept of royalty-free patent licensing. In fact, nor does my employer (MS). I favor the idea the the organizations themselves, and their members, have the ability to choose which model makes sense. I think that things like defensive suspension are really important. Those terms have a dampening effect on litigation in a given sphere – that is a good thing. I think that limitation of scope is reasonable. If my contribution is about a given protocol, but it turns out that same technology is also the world’s greatest aphrodisiac (going for the over-the-top example here to make a point), then my royalty-free contribution should reasonably be limited to the protocol. I may well want to keep the super love-stuff (sorry – this is a really tortured analogy) to myself, or release it as a completely proprietary invention. I fundamentally still believe that innovations are opportunities…and that is a good thing (for the inventor and for society). But the “no IP restrictions” concept of “open standards” does away with too much. Out of balance.

Two final points: 1) There is no evidence to date that a GPL product can’t implement a standard with IP restrictions. There are many, many RAND standards implemented in GPL-licensed products today. 2) I need to write more about this, but I am all for the idea of “open standards,” but to me it is all about process and participation. I like Rick’s points about balance on committees, and am actively working on methods with my team to figure out how we can facilitate brining more voices to the table in a neutral context.

Thanks for the thoughtful posts, Rick. I really enjoyed reading them.

Comments

• Anonymous
  August 02, 2009
  hi jason, i would like some info about the progress in fixing the bugs in Office 2007 SP2 regarding ODF formula implementation. Thank you very much

• Anonymous
  August 03, 2009
  "There is no evidence to date that a GPL product can’t implement a standard with IP restrictions." You should spend some time re-reading the GPL then--if you can't pass down your exemption to IP restrictions to downstream users then you can't distribute the product at all. "There are many, many RAND standards implemented in GPL-licensed products today." Please, name a few.  MPEG decoders/encoders of any sort don't count (they're still encumbered; MPEG LA just generally doesn't chase private users.)

• Anonymous
  August 03, 2009
  The comment has been removed

• Anonymous
  August 03, 2009
  I'm sorry, but after the whole OOXML debacle, I don't really see how I can trust any new-found desire for "balance" with Microsoft.

• Anonymous
  August 03, 2009
  Hi Brian - please don't misinterpret what I wrote. I am intimately familiar with the GPL and the discussion around patents relative to that license. Wi-Fi (802.11 series), WiMAX (802.16 series), USB, Firewire (IEEE 1394), MP3, TLS, JPEG, and Unicode are all implemented in GPL code today. Standards are not the only aspect to licensing where the discussion of lawyers differs from the reality in code. If you look carefully at any reciprocal license, they are all by definition incompatible with each other. In theory, you shouldn't combine EPL code and GPL code - or MPL code or MS-PL code or....but people do all the time. Martin - I sent a request for help form someone smarter than me on your question. Will try to post something soon here. thx for the comments - Jason

• Anonymous
  August 03, 2009
  The comment has been removed

• Anonymous
  August 03, 2009
  David - if you want to insult me, please use this tool: http://www.pangloss.com/seidel/Shaker/index.html. Thx. Adhemar - No, this is not the anti-thesis, my point is based upon the past 100+ years of industrial standardization. RAND terms serve many functions well beyond royalties. Also, the past 15 years of software development would suggest that innovation is alive and well, and the returns generated on that investment (as protected property) has been rather positive. Just ask the folks at Google if they like those essential search patents. But I really don't think this discussion is about the benefits or failures of patents per se because patent laws exist today so the questoin of "open standards" is about how standardization takes place within the context of the laws as they stand now. Remember, all standards are "encumbered" by copyright. Does that mean they aren't open? (not meaning to be argumentative - I'm curious what people think). Thanks for the comment - Jason

• Anonymous
  August 03, 2009
  "Wi-Fi (802.11 series), WiMAX (802.16 series), USB, Firewire (IEEE 1394), MP3, TLS, JPEG, and Unicode are all implemented in GPL code today." Legally? Your position seems to be that patent encumbered standards aren't a problem because nobody has sued a GPL software creator/distributor/user.  Yet. I'm actually not opposed to patent encumbered standards.  What I insist on is the intellectual honesty not to call them "open".

• Anonymous
  August 03, 2009
  "Remember, all standards are "encumbered" by copyright. " No, they're not, and I suspect you know better  The standard document is most likely copyrighted, but so what? That copyright has no affect on people who implement the standard, or distribute/use those implementations.  Patents, on the other hand, have a very direct impact on all those activities.

• Anonymous
  August 03, 2009
  The comment has been removed

• Anonymous
  August 03, 2009
  You almost seem to use "standards" and "open standards" interchangeably. One might think you are intentionally trying to confuse the issue.

• Anonymous
  August 03, 2009
  This idle chit-chat about "balance" seems like ... I don't know, quite pointless. Thing is, a standard is either open (no royalties asked for anything, no encumbered parts included, and so on), or it isn't. Balance or imbalance, it's just words, not much different than RAND and the multutide of MS-PL-family of licences just try to introduce newspeak, what people should understand under open and/or free. IF every standard would be totally open (in every sense of the word), that would contribute in an undescribable amount to the development of the industry (well, a lot of industries), and would foster innovation (real innovation, not what many PR-speakers mean with that) much more.

• Anonymous
  August 03, 2009
  Jason, Requiring IP restrictions favors proprietary solutions over open solutions. Which isn't necessarily a bad thing-- in fact, that seems like exactly the kind of thing a proprietary company would want. But it does put the so-called "standard" away from anyone who requires an open solution, and people will look elsewhere unless you've got a stranglehold on the market (as the companies who form standards organizations usually do). You can call that innovation if you want, but you can't ethically call that "open." At best, that makes Microsoft look like a good guy for wanting to contribute to the standards community, but at worst, people see it for what it is: Microsoft controlling the market through the very means the markets use to avoid being controlled.

• Anonymous
  August 03, 2009
  John - I'm not stating anything other than the facts about the implementation of RAND-based (royalty or no) standards in GPL-based code. I'm not expressing an opinion of good or bad about it - it is simply the reality. IANAL - nor am I a judge. It just is - people will draw their own conclusions. People who work with me will always say I'm direct and honest. "Open" is the most widely used word in the industry today. I am very direct about my opinion of "open standards." They are open to anyone in the process, they are non-discriminatory for implementers. To me, that means that everyone gets the same terms. John - also on the copyright thing, my use of "encumberd" was in quotes on purpose. I'm using the term in the way I have seen it to suggest that IP in standards is a problem. Also, some of the definitions I have read have suggested that ANY IP protections tha restrict ANY use are a problem. In that scenario, the copyright from the standards body would seem to run afoul of that definition. Standards orgs tend to like having the copyright on their specs. Pino - remember royalties are only one aspect of RAND. Any ISO-based standard is released under RAND terms. I don't know this for a fact, but I suspect this is true for ITU and IEC as well. The point is that ther other aspects of RAND are worthy of consideration in this disucssion as well. Karl - not trying to confuse it. In fact, I'm writing about it because I hope to clarify what I think about it. I'm fine that others feel differently about this - that was discussion is all about. I actually find that there tends to be more conflation of "open standards" and "open source" than "standards" and "open standards." Worthwhile topic though. Thanks Jason

• Anonymous
  August 03, 2009
  Also, if the standards community became hostile to proprietary solutions, and Microsoft stopped contributing because of it, somehow I think the world would keep turning.

• Anonymous
  August 03, 2009
  You are picking the definition of "Open" that you like and trying to shove it down the rest of our throats. You like "Open" like a movie theatre. We like "Open" like a public park. You can't get around the fact that one requires you to buy a ticket (a barrier to entry) and one doesn't.   Furthermore RAND is self-contradictory.  So-called "RAND" terms can't be non-discriminatory -- you either discriminate against people who can't afford to pay (if everyone pays the same fee), or you discriminate against people who can (if you give people who can't afford the fee a pass).

• Anonymous
  August 03, 2009
  The comment has been removed

• Anonymous
  August 03, 2009
  What, you egg! Young fry of treachery! You asked to be insulted that way, I honored your request. Have a nice day.

• Anonymous
  August 03, 2009
  Freecode, Thou gorbellied rude-growing maggot-pie! - you made my day. :-) Thanks for the insult. On that note I'm going to bed. (Alas in London rather than Portland tonight). thx

• Anonymous
  August 03, 2009
  @Jason: "To me, that means that everyone gets the same terms." Or, to put it another way: "The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread."

• Anonymous
  August 03, 2009
  "I’m speaking of the balance in respect to the discussion of “open standards” meaning that there should be no IP restrictions in the standard in order for it to be open. This is different" Building Open system require standards to be free. You should read up in how GPL have secured user right and enabled users and dev freedom for the past 20 years.

• Anonymous
  August 04, 2009
  The phrase "open standards" has been hijacked by those who want to redefine it to mean "standards with no royalties". As a result, I suggest we all drop the phrase completely.  It is now totally meaningless.  Instead, use the appropriate specific phase, e.g., a RAND standard, etc.

• Anonymous
  August 04, 2009
  Ian - agreed that the phrase is now contextually generic. I think it will continue to be used, and thus people should carefully define what they mean by it. ETSI, GSC, ITU, and many other orgs have done so for this exact reason. Definitions have cropped up like mushrooms. The point I keep coming back to is that when people get too focused on royalties they end up missing the full picture. Thanks for the comment.