Hi Otto,

On Fri, Dec 17, 2010 at 10:59:30AM +0200, Otto Kekäläinen wrote:

I got a personal mail from a Finnish official linking to the blog entry by Florian Mueller:

first off, it's great that you've managed to become someone whom government officials ask for input on these issues! That's a very good place to be in.

http://fosspatents.blogspot.com/2010/12/european-interoperability-framework....

Much of what Florian says is either toxic or nonsense, and he's putting a considerable amount of spin on things. E.g. royalty-free standards don't exclude anybody, contrary to his (and the BSA's) claims. Also, it's not a precondition for economic growth to give corporations a stranglehold on the market by including their patents in standards on FRAND conditions and letting them decide what "reasonable" licensing terms are.

However, our position on this is not so different on the particular question of how the EIF integrates FRAND licensing.

From my point of view, it comes down to the way that this part of the EIF is interpreted:

5.2.1 Specifications, openness and reuse

The level of openness of a formalised specification is an important element in determining the possibility of sharing and reusing software components implementing that specification. This also applies when such components are used for the establishment of new European public services.

If the openness principle is applied in full:

All stakeholders have the same possibility of contributing to the development of the specification and public review is part of the decision-making process;

The specification is available for everybody to study;

Intellectual property rights related to the specification are licensed on FRAND terms or on a royalty-free basis in a way that allows implementation in both proprietary and open source software.

This "if the principle of opennness is applied in full" is of course an enormous back door, providing an excuse for public bodies to do nothing. But the EIF can give a boost to public bodies who really want to move to Free Software and Open Standards.

The official asked me if the new EIFv2 is as bad as feared or is Mueller correct that the FRAND as it is in EIFv2 isn't after all so bad.

What do you think? What would be a good reply?

Mueller deliberately fudges the key issue, which is: How will the EC (and other public bodies) interpret the "FRAND" clause? I see a few possibilities:

1. Interpret the paragraph as saying "either on FRAND terms, or on a royalty-free basis that allows implementation in both proprietary and open source software". This would mean that public bodies are free to choose between FRAND standards and royalty-free ones, and under no pressure to opt for the latter.

In my view, that's a pretty far-fetched interpretation. But some people are undoubtedly going to try it.

2. Interpret the paragraph to say that "whatever standard a public body chooses, it should be implementable under *some* free software licenses". FRAND standards with running royalties (e.g. a fee paid per copy) can be implemented in programs that use non-copyleft licenses, such as the BSD family. They can't be implemented under copyleft licenses such as the GPL.

This is the line which Microsoft and the BSA have been pushing. It would conveniently exclude many of the main competitors to Microsoft's products. As we stated in our recent letter to the EC to refute the BSA's claims [1], more than 85% of Free Software projects are distributed under licenses that are incompatible with running royalties.

If this interpretation prevailed, it would be a bad outcome. The new EIF strikes a blow to this interpretation, but not a deadly one.

3. Interpret the paragraph to say "no matter if your standard is FRAND or royalty-free, it has to be implementable in Free Software, including under copyleft licenses like the GPL". The fine point is here that there are some (mostly theoretical) varieties of FRAND that indeed work with copyleft licenses. For example, the owner of the patent that's incorporated in the standard can be satisfied with a one-time fee (ie. someone pays a licensing fee once, and the technology is then free for everyone to use). [2]

This is the interpretation that I believe we should advocate (unless anyone has a better one -- suggestions highly welcome!). The problem is that most people in the industry, in standardisation organisations and in the EC understand FRAND to mean running royalties.

We will need to see which interpretation prevails, and take the appropriate action.

Just referring to the conclusion at http://fsfe.org/news/2010/news-20101216-01.fi.html

wow, translated already! Thanks! :-)

This would be a good place to start, because it provides a quick overview of the EIF's highlights and concerns.

Then I would argue that

- the new EIF recommends that public bodies should prefer Open Standards.

- Public bodies who want to use more Open Standards and Free Software now have strong backing from the EC. This EIF is an official communication of the EC, not just a recommendation by an expert group like the previous one.

- Public bodies will have to deal with Open Standards anyway very soon. The EIF isn't just a recommendation. The Commission's eGovernment Action Plan, published Wednesday, demands that Member States should implement the EIF in their national interoperability frameworks by 2013 -- that's a clear action with a clear deadline.

A public body can choose whether it keeps locking up its data in proprietary file formats and protocols, and pays a huge exit cost some time after 2013; or whether it starts the move to Open Standards now, doing the migration gradually at its own speed, and enjoying much lower exit costs.

The EIF provides a clear direction, and it opens up space for those public bodies that are willing to move to Open Standards and Free Software.

or..? Do we have a FRAND-analysis of the final EIFv2 somewhere?

The analysis above is my understanding, and I'd be grateful for input. It might be good to keep this analysis internal until we have a better understanding.

However, the real question is how the Commission, Member States and individual public bodies will implement the EIF. While the EIF does indeed provide a clear direction, it lets public bodies move in that direction at highly variable speeds.

While we haven't won the war, we've won a huge battle. It's been a lot of work, but looking at the comparison table [3] that we made, it's a significant win for us. The document isn't perfect, but I think we've managed to put some good ideas in there, and kick out some of its worst flaws.

Best regards, Karsten

[1] http://www.fsfe.org/projects/os/bsa-letter-analysis.html

[2] I believe this was the outcome in the Samba case. Can anyone confirm?

[3] http://fsfe.org/projects/os/eifv2.en.html (currently being updated)