During August, Talkstandards.com hosted an open forum focused towards a number of issues related to the tension between traditional software development business models, FRAND and RAND IPR licensing requirements and the open source community. The event was structured such that two featured articles were posted by Talkstandards regular Stacy Baird (Managing Director of Citrus Co.) and James Bryce Clark (from OASIS). In response to these featured articles, a series of expert contributors were invited to post introductory remarks, upon which the event discussion took place. These articles are summarized below. Please follow the links to access the articles in full.

Patents and Open Source Are Not Always Like Water and Oil:
“Patents have long served to enable innovation while assuring the complete disclosure of inventions and a reasonable return to inventors”. While RAND (Reasonable And Non-Discriminatory) licensing requirements, which provide equal and fair access to IP for use in both open and closed standards, has significant support from governments and industry, there exist some within the OSS (Open Source Software) community who wish to abolish RAND licensing all together. In the first of two featured articles, Stacy Baird outlined both the motivations and consequences of this desire.

The OSS Roadmap to a Minefield of Patents:
“Standards bodies are a microcosm of the marketplace: alternative ideas compete for inclusion in a draft” with organizations offering a wide range of approaches towards IPR technology, ranging from allowing to disallowing its inclusion or alternatively falling somewhere in between. In the second featured article, OASIS’s James Bryce Clark reported that “demands for royalties are becoming rarer” particularly during the recent boom in internet technology such as cloud computing which increasingly depends upon interoperability and transparency, in contrast to traditionally closed telecommunications networks.

FOSS (Business), Standards, and Intellectual Property Rights:
There is ongoing discussion covering how FOSS can be used in scalable business and what business models support using FOSS. For instance: “how one makes money when one gives the product away for free”. Stephen Walli argued that the nature of any tension between FOSS and standards is in their relationship and concluded that a well-run FOSS project should have the same level of IPR policy considerations in place as an SDO.

Betwixt and Between: Open source software and RAND standards development patent policies:
Regarding the tension between OSS and RAND, George T Willingmyre posed the questions: “What is the problem? Is this actually a “problem” or a matter of differing goals?” and “what is the lesson?” Arguing that rather than being a conflict between the Open Source definition and RAND, the tension instead comes from certain patent licensing restrictions which are included in some Open Source licenses and RAND. He concluded that the world’s policy makers should take heed when contemplating any decisions regarding Open Source policy affecting standard setting.

The Intersection of Royalty-generating Standards and OSS:
“All open source licenses are not created equal – hard line licenses, like the GPL, place more restrictions on users and thus create tensions with RAND/FRAND that don’t otherwise exist”, argued Daniel Garcia-Schwartz and Anne Layne-Farrar in their co-authored response to the featured articles. Counter to OSS ideals of “Information wants to be free”, the more restrictive the OSS license, regarding IPR inclusion, the less that information flow is possible. These licenses not only limit the pool of information from where OSS reliant firms can draw, but also delay standard implementation due to uncertainty.

Shaping the Debate – Are Some of the Tensions Created by “RAND-OSS” or by “RAND-GPL”?:
Many open source advocates reinforce the belief that RAND is incompatible with open source licenses with phases tending towards too strongly a worded, argued Jay Kesan. But the patent grant in an OSS license does not necessarily result in a royalty-free grant of all patents the distributor holds that read on a certain code, which is important to for maintaining a vibrant ICT sector.

An Open Source Approach to Policymaking?:
As global competition and the convergence of new technologies continues to increases, issues related to standards and standard development is “becoming a growing focus of policymakers who are struggling to keep up with the pace of change”. Helen Disney commented upon the discussion between proponents of open and proprietary-based standards and some of the misconceptions regarding the obstruction of innovation. She argued policymakers should neither “idolize nor demonize” business models based upon either OSS, RAND, etc and should take a more collaborative approach towards the most open, competitive ICT marketplace possible.

Open Standards and Open source – Maturity and beyond:
In many regards Open Source is maturing, claimed Ajit Jaokar citing the recent Talkstandards debate, which focused upon the evaluation a specific Open source licensing options rather than simply the OSS/IPR dichotomy, as part of a continued evolution of the discussion regarding Open Standards and Open Source. Arguing that “Open source licenses are not incompatible with IPR” and that the “Demands for royalties are increasingly depending on the domain” he outlined a series of implications stemming from this maturity.

Standing at the Intersection of RAND and OSS:
While on the surface it may seem a simple debate between RAND and “Open Source” regarding patent royalties, claimed Steve Mutkoski, “neither RAND nor OSS are singular or uniform concepts capable of such a simple comparison”. Outlined a number of ways in which the dozens of OSS licenses currently in use uniquely treat the inclusion of patents, Mukoski described the situation as a “complex legal discussion”.

Standards and Open Source Software:
“Is there an inherent tension between the FRAND … and the imperatives of Open Source software development? In one word, no” argued Timothy Simcoe. Nothing prevents a firm contributing technology to an open standard under a FRAND licensing agreement for free, via a non-assertion covenant or setting the maximum royalty rate to zero during ex-ante disclosure. Simcoe cites the potential holdup possibility as the key priority for policy consideration, in particular the improvement of IP policy (greater transparency, reduced vagueness such as “reasonable” royalty rates, etc).

As you know, open standards work and open source code development have some similarities. Both systems are designed to permit strangers to collaborate in joint design. Both have rules for discovering and filtering private patent or copyright claims, with the goal that end-users can access and use the outputs safely. While they’re two distinct systems, usually they are complementary, not in opposition.
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Microsoft’s Internet Explorer (IE) dominates the web browser market in terms of users, commanding a market share of over 60%. But there is an increasing trend towards alternatives such as Mozilla Firefox and Google Chrome. These alternatives, which in according to some measures offer superior technical performance and standards compliance, have gradually been eroding IE’s lead.

In September last year I reported on the struggle that the Goggle Chrome web browser had faced in gaining a market foothold despite superior technical performance, standards compliance and emphasis on Open Source, compared to market leader Internet Explorer. (The original post can be found here). At the time of writing, Sony had recently announced that all Sony branded netbooks would begin shipping with Chrome pre-installed.

Since then Chrome’s market share has more than doubled from 3.17% in Sept 2009 to 7.24% in July 2010. While still a fraction of Internet Explorer’s market position, Chrome has grown almost exponentially since late 2008.

Similarly, IBM’s Bob Sutor recently blogged upon his company’s official shift to the Mozilla Firefox browser. While admitting that many within the company (400,000 employees worldwide) already prefer the browser, he reports that from now on the official policy will see that “all IBM employees will be asked to use it as their default browser”. (Although legitimate as corporate policy, one can question the efficiency of top-down mandating the use of a particular browser rather than merits-based choices by users.)

While IE continues to command a 60% market share, this has been declining. Presented below are market share estimates from December 2007 and July 2010 (source). Within the two and half years between estimates, IE’s market share has fallen almost 20 percentage points (a 24% reduction) of which almost half has accrued to Firefox. This is a significant decrease within a relatively short period of time.

Over a longer timeframe, presented below (source: Wikimedia Commons, user arichnad), we see that within the last 5 years the market has evolved from essentially a single browser with a few fringe players. Despite antitrust authority concerns, the market accordingly shows a healthy degree of competition.

The increased focus on open source and standards–compliant application will in many regards make alternative browsers a reality. This will further spur competition and innovation, improving the user experience.

The BBC has published an article about the long, slow birth of DAB radio which can be summarized as follows:

• Currently, the British government is pushing hard for listeners to switch to Digital radio and specifically the DAB standard. While DAB is heralded as the ‘technology of the future’, few know that it is really ‘the technology of the past’ since it is about 30 years old. While the first development began in 1981, the first receivers were available only in 1999 and it is only ten years after that (2010) that there is some real commercial interest in DAB.

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This is the second in a series of articles in which contributor Stacy Baird presents and in-depth analysis of the role of governments in standards setting initiatives which is posted on a bi-weekly basis. The first in the series can be seen here – Editor

PART 2: There are Good Reasons for Government to be Reluctant to Mandate IT Standards

To start with the end: Government should be reluctant to mandate an IT standard. Before regulating an industry, policy makers have to look at a few things: the sophistication of the industry with regard to what is being considered for regulation; the capacity of industry to address a perceived problem without government regulation; whether regulation would be contrary to or in support of good public policy; and finally, whether the risk of “government failure” outstrips the risk of market failure. It is incontrovertable that when it comes to standards, the IT industries are sophisticated.

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IEEE has announced the availability of IEEE P1547.8 standard which is a draft standard establishing a common technical platform for distributed resources interconnection applications.

IEEE P1547.8 expands on IEEE 1547 and also incorporates National Institute of Standards and Technology (NIST) recommendations for improved interconnection performance functionality

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This is the first in a series of articles in which contributor Stacy Baird will analyse the role of governments in standards setting initiatives which will be posted on a bi-weekly basis – Editor

This series is substantially drawn from an article I wrote for the Stanford Law and Policy Review (Volume 18, Issue 1 (2007)). As we move into a time of predictibly heightened interest in government intervention in IT standards and interoperability with the deployment of cloud technologies, I find it interesting to once again consider the arguments of this article.

The explosive growth of the role of IT in our society and as a component of our economy has dramatically elevated the importance of IT interoperability. Interoperability may be achieved in a number of ways, through intellectual property licensing and cross-licensing, relatively simple technical means (for instance, in information technologies and consumer electronics converters and translators are commonplace in both software and hardware), industry collaboration with companies working to facilitate interoperability among their products, through a company designing its product to interoperate with the products of other companies, and through consulting services that facilitate interoperability among otherwise non-interoperable technologies. And indeed, interoperability between modern technologies is often a far simpler task than during previous eras of technological evolution wherein inventors were limited by physical characteristics and mechanical interactions. Further to this point, in light of Web 2.0 technologies and cloud computing, interoperability and the use of widely accepted standards to achieve that interoperability are at the core of both innovation and implementation.

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China has substantially improved its capacity to develop and implement a broad set of interoperability standards, security protocols, and product specifications as an enabling platform for the development of indigenous innovation. However, as rising complexity in technology, business organization, market structure and laws and regulations is reshaping the international standardization landscape, China’s government-centered standardization strategy is under pressure. While rising complexity creates new opportunities for learning and institutional innovations, it also increases the cost of standards development and its risks, especially for Chinese companies that seek to move beyond the status of fast-followers to become co-shapers of international standards.

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Last week, I was in Amsterdam as a speaker/analyst at the LTE world series in Amsterdam which is a top Telecoms conference especially for the Operator community. LTE is about ‘Beyond 3G’ networks and that’s an area with lots of standardization discussions (see here and here). At Amsterdam, there were two relevant themes for TalkStandards. I will cover one here (Voice standardization in 4G networks) and I will create a separate post for the other (IPR issues for 4G networks).

There is an informal joke in Telecoms circles which goes like this: When we created 3G we forgot about data, when we created 4G we forgot about voice!

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In an exclusive interview with Talkstandards, Professor David Ingram of openEHR, one of the most innovative players in the eHealth field, outlines some of his expectations for the future of ICT in the health care sector. This transcript has been prepared from notes taken during a telephone interview on February 22nd.

Part II: eHealth in an international perspective
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