Complaints against EU open source agenda may overlook a policy breakthrough

A European Commission policy review white paper released last week (PDF available here) was brought to light in the US this week by virtue of a comment from its most vocal opposition. Yesterday, press sources including IDG's Paul Meller quoted the Association for Competitive Technology's Jonathan Zuck as taking sides -- not surprisingly -- against the white paper, accusing the EC of bias in favor of open source software producers over commercial manufacturers.

"We remain concerned that the policy framework suggested in the white paper seems to favor open source software over proprietary software to achieve more interoperability," reads another citation of Zuck's statement. Ironically, Zuck's ACT Web site from which the statement originated appeared to be the victim of a crash in its open source asset management system this morning, so only second-hand citations of Zuck were available today.

Perhaps even more ironic, however, was that Zuck's comment may have completely overlooked one of the white paper's most striking, and potentially game-changing, policy directives for all players in the software industry, including favorite EC targets Microsoft and Google.

Currently, when the EC makes a decision about whether a major player is being anti-competitive or whether it may be leveraging standardization for its own proprietary gain, it relies on the opinions and contribution of something called a Senior Officials Group on IT (SOGITS). That group is made up entirely of representatives from the EU's member states. Sometimes those members may call on experts, but typically, the white paper noted, it's to support whatever case the member states want to make at the time.

Since standardization and interoperability affect more parties than just member states, the EC paper advised, it would be better if SOGITS were replaced with a permanent advisory board made up of what it calls "stakeholders" in information and communications technology (ICT), presumably including representatives of software companies and development groups.

"The Commission believes that SOGITS should be superseded by a platform representing all the stakeholders concerned," the white paper reads. "Such a platform should ensure a more coherent, transparent and consistent ICT standardization policy thus facilitating the development of high-quality ICT standards. It should also provide the Commission and the Member States with expert advice on matters concerning ICT standardization policy and its implementation."

The white paper left the definition of "stakeholders" broad, essentially enabling the reader to conclude that it includes everyone who plays a role in the development and implementation of technology.

The big problem the EC continues to face, the white paper does point out, is that the processes of standardization and interoperability are still hampered by the imposition of patent claims and proprietary rights. Fairer terms for establishing royalties (FRAND) does help, but that help becomes limited once those proprietary claims become compounded. Presumably, standardization should comb through all those claims to at least make sense of them all, but that only works if the standard is less complicated than the technology. The direct implication here is that political bureaucracy, perhaps the kind introduced by SOGITS, only makes things worse.

The solution the white paper proposes is a surprisingly friendly one for commercial interests -- one which Zuck also appeared to ignore: Patents should describe what technology is, while standards should reflect what technology does.

"Standards should whenever possible be performance oriented rather than based on design or descriptive characteristics. They should not distort the (global) market and should maintain the capacity for implementers to develop competition and innovation based upon them," the panelists wrote. "Additionally, and in order to enhance their stability, standards should be based on advanced scientific and technological developments."

If adopted, these recommendations could represent a real turning point in relations between the European Commission and software interests, which up to now have been driven by the political debate between "openness" and property rights. Under the guidance of a new "platform," as the panel suggests, representatives from the software industry itself may have a voice in guiding interoperability policy. Though the white paper does not say so explicitly, however, activist groups such as the ACT may not be qualified as "stakeholders" under the new platform, which could be the catalyst for the group's complaint today.