Monday, June 14, 2010

OpenForum Europe and ECIS want software patents for their members but oppose those of others

Before I report in more detail on the OpenForum Europe Summit 2010 that took place last Thursday in Brussels (and from which I went directly to LinuxTag 2010 in Berlin for a presentation on relevant EU processes), I'd like to provide an overview over the key players of those organizations and their intentions.

In a nutshell, they're in favor of their own software patents but don't want to pay royalties for those of others. Their story is that some other companies' patents are needed for free for interoperability's sake, instead of advocating the abolition of all software patents including their own.

They don't want to address the root cause of the problem because they want to have their cake and eat it, too. The only way in which this approach is open is that it's open hypocrisy.

Two organizations with a mutual nucleus of three companies

There are two organizations in Brussels, the de facto capital of the EU, using the noble cause of open standards and interoperability as a pretext for a rather different agenda: OpenForum Europe (OFE) and the European Committee for Interoperable Systems (ECIS).

OFE is a lobby organization that now plans to work more closely with academics to give itself a think tank image.
ECIS brings about antitrust complaints and also engages in lobbying.

OFE's current list of members includes IBM, Google, Oracle, Red Hat, and Deloitte.
ECIS' members are Adobe, Corel, IBM, Nokia, Opera, Oracle, RealNetworks, and Red Hat.

So there are three companies who are members of both organizations: IBM, Oracle, Red Hat. Here's their background concerning software patents:

Discontent with European Commission's Digital Agenda and draft European Interoperability Strategy/Framework

Right now they're unhappy that the EU isn't inclined to become their gofer. ECIS admits it without mincing words while OFE tries to spin-doctor around and play European Commission Vice President Neelie Kroes off against her colleagues. Others have previously attempted to play commissioners off against each other, and failed.

In her speech at the OpenForum Europe conference on Thursday, Mrs. Kroes certainly expressed a personal preference for royalty-free standards. OFE claimed to welcome that in its usual hypocritical way. I like that preference for fundamental reasons: I would prefer to see software patents abolished, which would take care of the royalty problem. Broadbased support for the Defensive Patent License could also have that effect.

But no matter how much we want that, it's simply not accurate to claim or imply that Mrs. Kroes supports the OFE's demands. Politicians have lots of preferences for what companies should do. What truly matters is whether or not they use their decision-making power to impose conditions. OFE would like the European Commission to use its European Interoperability Strategy and Framework -- a set of procurement guidelines with political implications going well beyond -- to require all vendors who want to do business with the public sector to adhere to rules that would force them to make licenses to their interoperability-related patents available on a royalty-free basis. And that's what the Commission is absolutely not inclined to do. Instead, the Commission fully accepts the notion of patent-encumbered standards.

In his summary of the OFE event, the OFE's chief executive Graham Taylor wrote: "We could not have hoped for a better keynote speech from European Commission Vice President Neelie Kroes." But in her speech, Mrs. Kroes actually said: "I have nothing against intellectual property being brought to the standard-setting table, but it must be disclosed." She also talked about a new legislative initiative on interoperability that "would likely involve some form of pricing constraints." That's another way of recognizing that there will be royalties. If something is royalty-free, you don't need to talk about "pricing constraints."

So the OFE's summary spins the commissioner's words in a way that I consider unreasonable. Then the OFE tries to drive a wedge between Mrs. Kroes and the other commissioners: "We at OFE believe there should be a complete re-write of the EIF. If this doesn't happen Vice President Kroes may not achieve the goals she is working so hard towards."

But what Mrs. Kroes said, especially when paying attention to the things I quoted from her speech, is simply consistent with the current draft of the European Interoperability Framework.

The Commission is a lot more consistent than the OFE.

OpenForum Europe lobbied European politicians for software patents, falsely claiming to speak on behalf of the open source community

When I first heard about OpenForum Europe six years ago, there was an extremely bad reason: OFE's chief executive (back then and still today), Graham Taylor, had lobbied European politicians to support software patents, and he falsely claimed that he represented the open source community.

That claim was refuted by Bruce Perens, the author of the original Open Source Definition, in an op-ed published by TheRegister. Bruce wrote that Graham Taylor "does not have the credentials to represent the Linux, Open Source and Free Software developer communities, especially when he contradicts our extremely strong opposition to software patenting."

The FFII knew that Graham acted as an astroturfer at the behest of IBM and other OFE members, but tried to engage in a facts-based dialog with Graham Taylor. The FFII wrote two open letters to him, and the introductory paragraph of an FFII page on OFE starts with the following strong and accurate statement:
Open Forum Europe is lobbying the European Parliament in the name of "open source companies" in order to make software directly patentable and to ensure that interoperable software may not be written.

Graham Taylor is not the only OFE executive to have been criticized harshly by the FFII. Paul Meller, now research and communications director at the OFE, was probably disliked by the anti-software-patent movement more than any other Brussels-based reporter writing in English. The FFII accused him of repeatedly spreading "extreme misinformation", alleging "a large number of errors and lack of objectivity", and even less flattering things were said on certain mailing lists.

While I also found that his articles were in most cases overly sympathetic to the positions of those pushing for software patents, there are explanations. Some of his articles appeared in the New York Times, others on IDG's website, so with a view to professional audiences he felt he had an obligation to listen to both sides of the argument. Unfortunately, one of those sides (the pro-patent camp) made a very professional PR effort from the beginning whereas the FFII didn't always handle its communications very well (as its core activists admitted at the time). I had several facts-based, constructive conversations with Paul at different points in time. Now, of course, he's no longer independent.

ECIS: ten commandments for the EU but none for its own members

The key person driving all of ECIS' efforts as its lawyer and spokesman is Thomas Vinje, a partner at Clifford Chance. He was also invited to speak at the OFE Summit on Thursday and unlike the host organization, he made it very clear that the EU's Digital Agenda and the current draft of the European Interoperability Framework fell short of his expectations. He didn't speak there in the name of ECIS but again, he is ECIS whether or not he formally introduces himself on that basis.

Thomas Vinje went on to propose ten ways to modify the document in order to make it meet the objectives ECIS considers important. A single one would have been sufficient: abolish software patents. Given where ECIS' members stand, it's no surprise he won't say that.

But he certainly forgot to insert an extremely important commandment in front of all others: do as you say.

Why doesn't ECIS hold its own members to the same standards it advocates?

Either there isn't any code of ethics in place for its members or it isn't any good, because otherwise IBM would have to be excluded from the organization given that it promotes interoperability only in markets in which IBM stands to gain from it but refuses to be interoperable and open where it generates half of its profits.

The same could be said about OFE as well: if you're serious about openness and interoperability, you have to demand that IBM provide interoperability right here and now, or you have to exclude the black sheep of the family. IBM probably pays you (and ECIS) a lot in membership dues but that's only your problem. If you don't get your house in order, you can't expect political decision-makers to buy your claims.

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