DIS29500: BRM Process Unfair for SMEs?

The Issue

The fact that ECMA dispositions on National Body comments are only being made available through a password protected website has been widely reported (one example of many). The BRM convenor notes that this is due to the confidential nature of National Body comments (scroll down to the heading ECMA secrecy). While I had been aware of this before it has only occurred to me this week (while preparing for an informal working group meeting on DIS29500 arranged by Standards Australia – I am an OSIA representative) how difficult this makes it for small organisations to participate sensibly.

The reason is that, during the first phase leading up to the vote, it was easy to leverage off those parts of the specification that other people had commented on publicly. This, in effect, meant that everyone could take the benefit of everyone else’s work. Small organisations could therefore identify relevant issues from those identified by others. Not only did it allow taking the benefit of others’ work it also permitted the incremental improvement of it.

BRM Process Makes Review Much Harder

The BRM process radically changes that dynamic. Now the documents are confidential and, if they are confidential it is hard to comment on them publicly. As such each organisation which is pariticipating in a National Body consultation process is on its own.  With each prevented from interacting with others – collaboration is, in effect, banned. Each is left to trawl through the large number of dispositions to try to make what sense it can out of them. Without seeing other people’s views on the various dispositions it is very difficult to know which are significant and why (and which are insignificant and why not) – or even which dispositions relate to important issues identified in the lead up to the initial vote. The comparatively short time between the availability of the dispositions and the BRM (about 6 weeks or so) compounds this difficulty.

Of course, this gets back to the size of the document. A document one tenth of the size would probably be manageable under this process – even by a small organisation although it wouldn’t necessarily be pleasant. DIS29500 simply inspires despair. Presumably National Bodies will also be in a similar situation. Unless they have a substantial team that they can devote to the process how can they hope to adequately parse the dispositions – and any regressions that they create?

Is this Process Unfair to SMEs?

This creates the additional complication of whether a National Body, if it is required to take into account the interests of small and medium businesses and/or consumers, can reasonably fulfill that obligation under this process (for example, in Australia, the Productivity Commission’s November 2006 Research Report on Standard Setting and Laboratory Accreditation recommended that Standards Australia should “improve the balance of interests represented on technical committees by… increasing the participation of small business,…and other community interests“). If SMEs cannot parse the disposition in the time available, they cannot adequately understand its consequences and cannot therefore adequately represent their own interests to their National Body.

More on the OSP

I have not seen any official document summarising the outcome of the OOXML seminar at UNSW last year. However, the main thing that I have heard unofficially in relation to the open specification promise is that pains were taken to compare its wording to the wording of similar promises made by IBM.

To make such a comparison presupposes that when two people say the same thing they ought to receive the same reception. Is this justified?

Microsoft on Patents

Microsoft’s recent history on patents (particularly since the Novell deal in November 06) has a particularly public persona:

Microsoft General Counsel Brad Smith and licensing chief Horacio Gutierrez sat down with Fortune recently to map out their strategy for getting FOSS users to pay royalties. – Fortune

“Novell pays us some money for the right to tell customers that anybody who uses SuSE Linux is appropriately covered,” Ballmer said. “This is important to us, because [otherwise] we believe every Linux customer basically has an undisclosed balance-sheet liability.” Techworld

“We’ve had an issue, a problem that we’ve had to confront, which is because of the way the GPL (General Public License) works, and because open-source Linux does not come from a company — Linux comes from the community — the fact that that product uses our patented intellectual property is a problem for our shareholders. We spend $7 billion a year on R&D, our shareholders expect us to protect or license or get economic benefit from our patented innovations. …
“… we agreed on … essentially an arrangement under which they pay us some money for the right to tell the customer that anybody who uses Suse Linux is appropriately covered… They’ve appropriately compensated Microsoft for our intellectual property, which is important to us. In a sense you could say anybody who has got Linux in their data center today sort of has an undisclosed balance sheet liability, because it’s not just Microsoft patents.”

Steve Ballmer on SeattlePI Blog

Microsoft’s latest licensing push stems from its claim that FOSS infringes on 235 of its patents, and that those patents are intellectual property that should result in fair compensation to Microsoft in the form of licensing fees. LinuxInsider

Microsoft chief executive Steve Ballmer has warned users of Red Hat Linux that they will have to pay Microsoft for its intellectual property.
“People who use Red Hat, at least with respect to our intellectual property, in a sense have an obligation to compensate us,” Ballmer said last week at a company event in London discussing online services in the UK. VUNet

Mr. Ballmer once called Linux a form of intellectual-property cancer. While he has since dialed back the rhetoric, the subtext remains in nearly all Microsoft discussions of Linux: Use it, and you run the risk that Microsoft will sue you [for patent infringement]. Post-Gazette

So the two top level points [about the Novell-MS deal], as Ron whispered to me, technical interoperability and patent peace of mind, and we’re trying to provide both of those things to our customers in a way that works for the business interest of the open source development community, and the Microsoft development community. – Steve Ballmer at the Press Conference announcing the Novell-MS Deal.

… Steve Ballmer has claimed that Microsoft signed its patent peace deal with Novell because Linux “uses our patented intellectual property” and Microsoft wanted to be “appropriately compensated.” Business Review Online

The efforts of Microsoft to pressure the Linux community over alleged and unspecified patents is akin to “patent terrorism”, according to an executive for Sun. ZDNet

Microsoft’s patent push is stimulated by a number of factors. One is competition and trying to make sure that Microsoft’s rivals don’t get access to key innovations. However, the company also began a broad intellectual-property licensing push several years ago, under which it licenses technology to many companies big and small. The company has signed a slew of patent cross-licensing deals since then, the most recent being Tuesday’s deal with Japan’s JVC. CNet News.com

For those who have access to Google, there are others in a similar vein. Perhaps those who are not in the open source community will not be as aware of this history.

IBM on Patents

IBM’s public history in respect of patents is a little different (I have not included any references to IBM’s patent promise from last year):

IBM is playing a pioneering role in the World Business Council for Sustainable Development’s program to open environmentally-responsible patents to the general community. IT-Wire

Following up on a promise last August to not use its vast patent portfolio against Linux users, IBM pledged in January to give 500 patents to open source developers. Linux-Mag

The Open Invention Network was formed with undisclosed investments from IBM Corp. [and others] …When the Open Invention Network acquires patents they will be available to any company, institution or individual that agrees not to assert its patents against the Linux OS or certain Linux-related applications, it said in a statement. PC-Welt

The Nub

My guess is that the Open Source Community would see it in roughly these terms:

Two people want to come onto your land but you’re concerned that they don’t fish in your lagoon. The first one has spent the last 18 months talking about how he has rights over those fish and he’s mapped out a strategy to get them and if you want peace of mind you’d better give him some of those fish. The second one has made some non specific noises about fish and some off hand comments to the effect that fish ought to be left alone. Both of them tell you if they come on your land they won’t fish in the lagoon.

Should you take each of them at their word equally or should you be more cautious with one of them?

[edit 20/1/08 adding three headings]

Should all Termination Clauses have a Cure Period?

Some termination clauses in contracts draw a distinction between breaches which are irremediable and breaches which can be remedied. The purpose of drawing this distinction is that irremediable breaches are said to permit immediate termination while remediable breaches are subject to a specific cure period.

In theory this is fine. In practice it presents a problem. The reason being that it is not easy to tell as a matter of practice whether a specific breach can be remedied or not. A good example is an obligation to pay on a certain date. If the payment is not made on the given date, can it be made later? This problem is compounded by the fact that if you get it wrong, then you will not have complied with the termination clause and will therefore yourself have repudiated (and will be exposed to suit for wrongful termination). This is particularly problematic because such termination clauses typically tend to draw a clear distinction between termination for remediable breach and termination for irremediable breach, so you can’t use the remediable breach clause if the breach is in fact irremediable (and vice versa).

As a practical matter it may be preferable to structure a termination right with a cure period in each case. The trade off is a period of time for a possible remedy against certainty in the right to terminate.

Revoke Copyright for Poorly Paid Authors?

In a submission on the AUSFTA the Australian Society of Authors made the assertion that it was in support of the extension of copyright from 50 to 70 years from the death of the author. The submission refers to arguments made by the Copyright Agency Limited in support of the extension then chooses to embellish this argument in a remarkable way. The Society supports the extension by bemoaning the poor pay received by authors –

“Above all the ASA supports the proper remuneration of authors. Our members are among the most poorly paid in Australia and we strongly support their basic right to payment for the work they produce – in all media…. We welcome any legislation that caters to the rights of our members to a fair day’s pay for a fair day’s work”

This was not a one-off argument. In 2006 the ASA sent a representative to the Unlocking-IP conference held at the University of NSW. His talk emphasised the same thing – how copyright needed to be boosted because authors were so poorly paid.

I say this argument is remarkable because it is a complete non sequitur. If the practical effect of 200 years of copyright protection for my industry body was that its members were “the most poorly paid in Australia” I wouldn’t be asking for the regime to be extended! I’d be calling for it to be abandoned – and for someone’s scalp for good measure.

From what I understand authors bodies around the world make similar arguments. Why?

Is Western Digital MyBook in Breach of the TPA?

While out shopping before Christmas I chanced across some WD MyBook 1TB external hard drives (AU$600 if you are interested). I had a look at what was printed on the box, it included the following:

“WD Anywhere Access ™: A simple and secure way to access and share data, pictures, music at home, in the office, and anywhere in the world – even when your local computer is off”

and:

“With WD Anywhere Access you can: …

get files from home while at the office…

listen to music on your MyBook World Edition drive while you’re on vacation…

share pictures with your friends anywhere without uploading them to the web…”

I could not see any statement that indicated that music could not be shared as reported in the media (arguing about the mention of sharing pictures but not music would be a long bow to draw).

According to s 52 of the Australian Trade Practices Act:

A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

While this has a couple of elements, the main one we’re interested in is whether there is conduct which is misleading or deceptive. The box contains representations to the effect that the “Anywhere Access” software permits the sharing of music. News reports indicate that the Anywhere Access client substantially inhibits, if not prevents, the sharing of music.

In addition there are other prohibitions in section 53 (such as a prohibition on representing “that goods or services have … performance characteristics… uses or benefits they do not have“) which can carry pecuniary penalties in the event of breach.

Update (7 January): The TPA has very generous standing requirements.  There is no need, for example to show damage (to anyone) to bring an action under s 52.  A person concerned about potentially infringing conduct can bring an action or lodge a complaint with the ACCC.