European Commission's Low Attack on Open Source

If ACTA was the biggest global story of 2012, more locally there's no doubt that the UK government's consultation on open standards was the key event. As readers will remember, this was the final stage in a long-running saga with many twists and turns, mostly brought about by some uncricket-like behaviour by proprietary software companies who dread a truly level playing-field for government software procurement.

Justice prevailed in that particular battle, with open standards being defined as those with any claimed patents being made available on a royalty-free basis. But of course these things are never that simple. While the UK has seen the light, the EU has actually gone backwards on open standards in recent times.

Again, as long-suffering readers may recall, the original European Interoperability Framework also required royalty-free licensing, but what was doubtless a pretty intense wave of lobbying in Brussels overturned that, and EIF v2 ended up pushing FRAND, which effectively locks out open source – the whole point of the exercise.

Shamefully, some parts of the European Commission are still attacking open source, as I revealed a couple of months ago when Simon Phipps spotted a strange little conference with the giveaway title of "Implementing FRAND standards in Open Source: Business as usual or mission impossible?"

The plan was pretty transparent: organise something in the shadows, so that the open source world would be caught hopping. The fact that I only heard about it a few weeks beforehand, when I spend most of my waking hours scouting out information on the open source world, open standards and Europe, reading thousands of posts and tweets a week, shows how quiet the Commission kept about this.

This secrecy allowed the organisers to cherry pick participants to tilt the discussion in favour of software patents in Europe (which shouldn't even exist, of course, according to the European Patent Convention), FRAND supporters and proprietary software companies, even though the latter are overwhelmingly American (so much for loyalty to the European ideal.) The plan was clearly to produce the desired result that open source was perfectly compatible with FRAND, because enough people at this conference said so.

And so it proved, as the report on the "conference" shows. Here's the key section that lays bare the underlying intent [.pdf]:

The conference reflected the disagreement on the place of FRAND in software development. However, there was broad recognition of the fact that the distinction between software and hardware is increasingly artificial, and that the two must be reconciled in the real world of technology licensing.

No simple solution to this dilemma is apparent, and the EC will continue to facilitate stakeholder dialogue on this issue. At this stage, the EC does not plan to introduce compulsory measures in this area

So let's examine this more closely.

There was – of course – disagreement on the place of FRAND, since those in the open source world know that it has none if the object is to produce a level playing-field for all to compete on equally. And for that very reason those in the world of proprietary software want FRAND baked into standards since it excludes nearly all of the key open source licences and the projects using them. It's the perfect solution for those who are afraid to compete fairly: skew the rules so that open source is excluded, and then claim victory when it doesn't offer solutions.

Also worth noting in the above statement from the report is the claim that "the distinction between software and hardware is increasingly artificial". I think if we decode this, what it means is that in the old world of hardware – for example, in telecommunications or codecs – FRAND standards were common, and that's perfectly true. But in the world of software, the key modern forums for standards such as W3C or OASIS require RF, not FRAND. So this is a crude attempt to force old-fashioned hardware approaches on modern software, because once again the convenient result is that open source is excluded.

Indeed, given the manifestly greater success of the modern approach – as demonstrated by the unprecedented rate of growth of the Internet ecosystem compared to earlier technologies – the move to implementing hardware features in software is a strong argument for making older hardware standards RF instead of FRAND; that would allow them to enjoy the same kind of accelerated deployment the software world has experienced in the last two decades.

Thus there is no "dilemma" that needs resolving, and no need for stakeholder dialogue – another code term for "opportunity for wealthy US software companies to spend huge sums lobbying for what they want in the corridors of Brussels," since "stakeholders" never seems to include groups representing the public interest, who were similarly excluded from the ACTA negotiations until they took to the streets across Europe.

Moreover, the fact that the document goes on to say "the EC does not plan to introduce compulsory measures in this area" is an admission that the European Commission is quite happy to see US companies continue to dominate software procurement in the EU, to allow major outflows of money to occur as a result, and that it won't be bringing in any rules for open standards that would level the playing-field by allowing open source to compete fairly. It's tantamount to chucking away a huge opportunity to grow an indigenous software industry serving the EU and its businesses, because local companies won't be able to fight foreign corporations and their sanctified patent portfolios.

At a time when the European economy is struggling, that is a double disgrace. It's a disgrace because the European Commission should be doing everything in its power to help startups and established companies in Europe, rather than simply keeping big US companies and their lobbyists happy with their monopolies and monopoly pricing. It's a disgrace that the European Commission isn't doing more to keep money within the European Union where it can create jobs, rather than have it drain overseas where it strengthens competitors.

It's also utterly shameful that the Commission didn't even have the guts to hold a discussion openly, but adopted this shabby trick of organising a meeting practically in secret, without inviting key players in the free software world, in order to minimise thoroughgoing debate and to get the result that it wanted.

It confirms once more that the European Commission is not serious about open source, and has no intention of doing anything meaningful to help it grow in Europe, despite some soothing noises to the contrary. Sadly, this pretty much sums up what's happened in 2012 as far as support for open source in the European Union is concerned. If we want 2013 to be any better, we're clearly going to have to fight harder for what is, after all, not only basic justice for free software, but economic common sense for Europe.

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Copyright © 2012 IDG Communications, Inc.

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