Google's call on Apple to support the RCS messaging standard is consistent with what an EU commissioner already wanted 11 years ago: the EU's unfinished interoperability business

I may not always agree with The Verge on Apple-related issues, but I have no problem acknowledging that they've been right all along to ask Apple when iMessage would finally support the RCS messaging standard in order to achieve interoperability with other messengers. Now that Google's Android chief Hiroshi Lockheimer publicly called on Apple to do so, there is at least some hope for change.

While the iMessage lock-in problem and the social pressures it exerts on low-income families has been discussed on the Internet for some time (see this Septemer 2020 thread on Hacker News, which contains pretty good explanations of how it works), it took a recent Wall Street Journal article to draw the attention of influential people to that problem. It also came up during the Epic Games v. Apple trial, with Apple-internal communications revealing a lock-in strategy.

When I ditched my iPhone last summer, I knew (not least thanks to the public debate surrounding Epic v. Apple) that one can switch off iMessage, which I did about a week before making my Google Pixel my primary phone. It was a non-issue since I primarily use WhatsApp and Signal. Then I'm not a teenager in the United States. The problem is real, and I do feel sorry for low-income families impacted by it. However, let's be clear that Apple's "culpability" in this context is merely a refusal to be interoperable. No one can reasonably expect them to provide an iMessage app on Android, but I agree with Google that supporting RCS would be the morally right thing to do.

It's hard to predict whether naming and shaming will change Apple's mind. It would actually be out of character for Apple to bow to that kind of pressure. The sole exception to date is that Facebook succeeded in getting Apple to support a small business initiative. But there was a lot less money at stake for Apple in that context. It was inexpensive to come across as generous. Not so this time around. The U.S. market may be well beyond a tipping point, and Apple--not because of superior quality (I'm even happier with my Pixel--relatively speaking, a bargain--than I ever was with an iPhone) but the most extreme "walled garden" strategy. Apple can continue to gain U.S. market share at Android's expense, and presumably that's a major part of the reason why Mr. Lockheimer speaks out (though I don't mean to doubt that he--like me--believes low-income families should have more affordable choices).

Assuming that Apple remains adamant about its iMessage lock-in strategy (which works only in the U.S., but that's the key market), what's next?

This debate immediately reminded me of a policy-making initiative by an EU commissioner many people in tech industry circles remember all too well: "Steelie Neelie" Kroes, famous for playing hardball with Microsoft while she was competition commissioner. In 2010, when she was put in charge of the EU's Digital Agenda, Mrs. Kroes rightly considered interoperability a top priority. Here's what she told Euractiv in a June 2010 interview:

In response to a question mentioning the iPhone:

"Today we are facing a shift from the PC era to an era where mobile devices with always-on Internet connectivity are becoming widespread. In this new and innovative market, interoperability is especially important."

In response to a question about interoperability being a Digital Agenda priority:

"This is not just about Microsoft or any big company like Apple, IBM or Intel. The main challenge is that consumers need choice when it comes to software or hardware products. Any kind of IT product should be able to communicate with any type of service in the future.

"Interoperability of equipment used, of services provided and of data exchanged promotes an increase in user confidence, value and choice. It also promotes acceptance, success and take-up of new technologies and thus competition among providers. It empowers the user to make the best choice in terms of value for money and suitability without being locked-in to one specific company or brand.

"Open standards are therefore vital to deploy interoperability between data, devices, services and networks. Internet is the best example of the power of interoperability. Its open architecture has given billions of people around the world access to devices and applications which talk to one another."

(emphases added)

Almost 11 years later, Apple's refusal to interoperate shows that it would have been good to mandate interoperability through legislation. There was no legislative initiative at the time, and the iMessage lock-in is a problem only for U.S.--and not for EU--consumers. Lawmakers on all continents would have valid reasons to take action, in a principled fashion as opposed to singling out a particular company. Neelie Kroes identified the problem (lock-in) and the solution (interoperability) more than a decade ago. The iMessage lock-in is just one of many issues in the tech sector that could be fixed that way.

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{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.

{Interoperability} Market dominance vs. significance: closing a regulatory gap

This posting is the second one in a four-part series on a legislative initiative for interoperability currently being evaluated by the EU. Click here for the first part of the series (a brief overview of what this is all about).

EU competition law has four main areas: cartels, mergers, state aid, and cases against the abuse of a dominant market position.

The fourth area is the one to leverage if you aim to restrict the way a single powerful company (that doesn't form a cartel with others) uses its patents. That part of the law can only solve a problem if a company (i) dominates its market AND (ii) behaves in a way that is considered anticompetitive (such as refusing to disclose technical information necessary to interoperate with its dominant products, or wielding its patent arsenal to shut down reverse engineering of the same).

In connection with interoperability, the Microsoft case has established some helpful principles. In fact, the EU leads the world by example as far as interoperability is concerned, in no small part thanks to Mrs. Kroes's work as competition commissioner in recent years. The most recent example of how companies with an interoperability concern rest their hopes on the EU is a complaint by a US company named Versata against SAP.

However, if a company is not dominant in a competition law sense, then there's simply no case, neither in the EU nor in any other jurisdiction I know (such as the US) on the grounds of an abuse of a market position.

Even many big players can claim not to be dominant

Many companies can escape that part of the law because the legal test for market dominance is a very high hurdle. If a company has a quasi-monopoly and dwarfs its competitors, then it's certainly dominant in the given market. But if it's "only" a clear number one, there could still be enough competition in the market that dominance must be denied.

Let me give you an example for how high a hurdle it is: in my personal opinion, Oracle dominates the market for database software. It has roughly a 50% market share based on revenues, and it acquired MySQL, which is by far and away the most popular open source database. However, if a court of law had to decide whether Oracle is dominant in a legal sense, the counterargument would be that IBM's DB2 and Microsoft SQL Server are competitive forces to be taken into account.

Whether or not a company is dominant heavily depends on how the relevant market is defined: geographically and in terms of product characteristics. In the total worldwide market for mobile phones, Apple would probably not be considered dominant because Nokia still sells more units, the collective volume of Android-based phones is quite high, and RIM (BlackBerry) is also strong. But in a more narrowly defined subset of the market, Apple's market share could be considered to be much higher. Also, Apple could be considered dominant as an online music distributor or as a distributor of iPhone/iPad applications.

The outcome of the dominance test is always binary: there is a case, or there isn't. There can be intervention, or there can't. As a result, there's a huge regulatory gap.

While a few companies are considered dominant in certain markets, such as Microsoft for client PC operating systems or IBM for mainframes, there are many others who are also extremely powerful and have their customers locked in, but under antitrust rules they can't be pursued no matter what they do.

The EU can't and won't try to expand the scope of antitrust law as a whole. But the European Commission has apparently recognized that it shouldn't be required to bear the burden of proof that a company is dominant only to ensure interoperability. There should be a general obligation affecting not only dominant players but also the much wider circle of "significant market players", many of whom could also use their intellectual property rights (especially patents) to limit choice and stifle innovation.

How to define significance, such as in terms of percentage of market share, is one of many things the Commission is now presumably pondering.

For the next (third) posting in this four-part series on legislative initiative for interoperability currently being evaluated by the EU, please click here.

{Interoperability} Procedural framework: an action item in the Digital Agenda

This posting is the third one in a four-part series on a legislative initiative for interoperability currently being evaluated by the EU. Click here for the first part of the series (a brief overview of what this is all about) or here for the previous part, which discusses a regulatory gap that currently exists.

In terms of a legislative process, this one isn't even in its infancy. It's in a prenatal state. I believe there's a pretty good chance that the underlying idea will result in a new law within a couple of years. But if, when and in which form will depend on the process.

Legislative proposals at the EU level don't come as surprises. There's always some deliberation prior to kick-off, and while a lot of meetings are private, the overall direction in which an initiative is heading is written and talked about in public.

The idea of possible legislation on interoperability requirements for significant market players is part of a comprehensive work program called Digital Agenda for Europe. The official working document (HTML, PDF, other languages) was published in the second half of May. It identifies eight "action areas" and 16 "key actions" as well as many items that are called "other actions".

Subsection 2.2.3 of the Digital Agenda talks about ways to enhance interoperability and makes the following statement that I'll quote and explain:

Since not all pervasive technologies are based on standards the benefits of interoperability risk being lost in such areas. The Commission will examine the feasibility of measures that could lead significant market players to license interoperability information while at the same time promoting innovation and competition.

The meaning of this is that in addition to official standards controlled by consortia, there can also be de facto standards (such as data formats or interfaces that are as widely used as official standards) belonging to individual companies. The European Commission would like to ensure that such companies don't monopolize their data formats and interfaces.

The word "license" makes it clear that intellectual property rights are involved. In the interoperability context, patents are particularly relevant, and they are information documents (hence the word "patent"). But the Commission's wording leaves room for additional options.

The bold-face passage is very broad and vague. To "lead significant market players to [...]" could per se mean anything from politely asking to soft pressure to the creation of legal obligations. Below that paragraph, there's a list of action items. The last one of them is:

Examine the feasibility of measures that could lead significant market players to license interoperability information to report by 2012.

This is still very broad. It adds specificity in the sense that the Commission wants to know by 2012 which options it has. But a speech provided clarification.

A legislative initiative is the preferred course of action

A recent speech by the European Commission's Vice President for the Digital Agenda, Neelie Kroes, made it perfectly clear that the measure she wants to take is to create a new piece of legislation:

Whereas in ex-post investigations we have all sorts of case-specific evidence and economic analysis on which to base our decisions, we are forced to look at more general data and arguments when assessing the impact of ex-ante legislation. Just to be clear, while it is still early days, it is certainly possible that I will go for a legislative proposal.

Not only was the preferred way forward clarified but also that the envisaged measure will be far-reaching:

This could have a profound impact on the industry concerned so it is not a decision taken lightly. Many of you work for companies that could be concerned by such a measure. I invite you all to let me have your views.

This invitation for stakeholders to communicate their positions to the Commission suggests that a formal consultation process will take place sooner or later. That's the usual approach taken by the Commission.

At this stage, many key aspects of the future proposal have not yet been determined. Here's another quote from Mrs. Kroes speech that underscores the need for consultation and deliberation:

We are thinking very hard about how this could be achieved. Any such initiative would probably be limited to certain types of IT products. And it would likely involve some form of pricing constraints.

I have seen other legislative initiatives where it was fairly predictable at a comparable stage what the Commission had in mind to do. In this case, it appears that there actually are a lot of questions, including some fundamental ones, that have not yet been answered. That's why those of us who like the basic idea of this should make our contributions to the thought process sooner rather than later.

For the next (and final) posting in this four-part series on legislative initiative for interoperability currently being evaluated by the EU, please click here.

{Interoperability} FOSS-related opportunities and priorities

This posting is the fourth (and final one) in a four-part series on a legislative initiative for interoperability currently being evaluated by the EU. Click here for the first part of the series (a brief overview of what this is all about) or here for the previous part, which discusses procedures.

Like I wrote in the first part of this series of postings, I regard the initiative to impose interoperability requirements on significant market players as a first-rate opportunity for free software and open source.

Beneficial with or without software patents

There's no question that the number one item on the political wishlists of most community members is -- and will continue to be -- the abolition of software patents. I'm also aware that many in the community would prefer for interoperability-related patents to be available on a royalty-free basis. The last quote above from Mrs. Kroes's speech indicates "pricing constraints" as a likely option, which makes it pretty clear that patent holders won't be required to grant licenses on a royalty-free basis.

But even if some of us fear the initiative might not go far enough, we should at least support the parts we like and get as much mileage out of it as possible.

The FOSS community should embrace and support this interoperability initiative. There really is the chance to make some important headway. Everyone who opposes software patents (and patent royalties) altogether can continue to advocate that position. Even if we achieved the abolition of software patents one day against the odds, this interoperability initiative would still have value because it will very likely deal with more than just patents. For an example, undocumented interfaces are a problem with or without patents, but the future interoperability law could solve it.

Looking at Mrs. Kroes's track record, I'm sure she will make the most open-source-friendly proposal she can under the legal parameters and political circumstances that exist. Even if she may prefer royalty-free interoperability, it's not only politically but also legally impossible for a government to expropriate right holders without adequate compensation.

Politics is the art of the possible

The potential benefits of a European IT interoperability law are huge. Let's try to achieve as much as feasible. Politics is the art of the possible, and progress has to be made one step at a time. I don't see any other legislative idea in Europe (and this one would certainly have repercussions around the globe) that offers such an attractive combination of being potentially helpful and politically achievable in the near to mid term.

I believe SMEs (small and medium-sized enterprises) could be important allies to make this happen. We should work with them to give Mrs. Kroes the input and political support that will be needed to overcome whatever resistance some may try to mount (including some who demanded interoperability in the past, when other companies' intellectual property was concerned, but don't want to provide it with their own products and will therefore try to get the bill diluted if not derailed).

We can still be against software patents in general and explore ever more ways to achieve that goal. But that shouldn't preclude us from seizing what looks like a wonderful opportunity on the interoperability front.

If you are also excited about this initiative, please stay in touch by bookmarking this blog, emailing me via the contact form, or following me on Twitter @FOSSpatents.