Thursday, July 1, 2010

{Interoperability} Significant market players to face EU interoperability rules

Amid all the brouhaha over the European Commission's approach to open standards, there's been hardly any attention for an exciting initiative that could greatly advance the cause of interoperability (the ability to make different IT products work together efficiently, such as through application programming interfaces and the exchange of data).

The aforementioned new initiative aims to create a legal requirement for interoperability that would affect all "significant market players", not only the ones who fall under the scope of antitrust law.

An oversimplified description of what a fundamental change this would mean is that the kinds of interoperability requirements the European Commission previously imposed on Microsoft with respect to Windows could then also affect others, such as Apple, Nokia and RIM with respect to their smartphones, or Adobe with respect to Flash, PDF and Photoshop. And many others.

"Significant" is the key word. Antitrust law can be used to fight abuse of a "dominant" market position. Dominating a market implies a sizeable gap between a market leader and the rest. That legal test puts many powerful companies beyond reach for antitrust proceedings, but a wider circle of non-dominant companies can clearly be considered significant and it's time to do something about them.

This wouldn't mean an exploding number of antitrust cases. On the contrary, a major design goal is to achieve interoperability without having to go through lengthy antitrust proceedings. At the end of the process there would be a new European law, specific to the subject of interoperability between IT products. It would set out the rules for all significant players in that market.

The legislative process hasn't begun yet. The European Commission is now going to explore the feasibility of this plan, and if there's green light, then the actual lawmaking process will likely begin in 2012. This will take time, but it can have such a profound and highly positive impact that it's worth it.

Free software and open source can gain from this in two ways. One, software that is available under a FOSS license will probably meet all of the criteria set out by the possible new law. Two, a number of proprietary software vendors beyond the reach of antitrust law would be required to make interfaces and data formats available to all competitors, including FOSS-based competitors, on a fair, reasonable and non-discriminatory basis. Short of abolishing software patents, it's hard to imagine a FOSS-friendlier legislative initiative.

I recently heard the European Commission's Vice President for the Digital Agenda, Neelie Kroes, talk about this idea at a Brussels event. It became clear that she's very enthusiastic about this, and rightly so. She said in a recent interview: "Any kind of IT product should be able to communicate with any type of service in the future." This could be great stuff indeed.

You now have the basic idea, and I will report on this initiative when there are new developments. This one is just the first posting in a four-part series on the subject. Click here for the second part, which discusses the regulatory gap that currently exists because many major companies are not dominant in a legal sense. And by the way, you can follow me on Twitter @FOSSpatents.