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With a focus on open source and digital rights, Simon is a director of the UK's Open Rights Group and president of the Open Source Initiative. He is also managing director of UK consulting firm Meshed Insights Ltd.

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EU FRAND Report Signals Problems

The final report from a European Commission meeting designed to whitewash patents in standards may prove a helpful marker for watchful eyes looking out for abuse.

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You may recall I spotted a meeting happening in Brussels that looked as if it was a set-up job. I suspected its goal was to ensure that a report was produced which could be referenced in future discussions over EU procurement policies -- especially Britain's. While it was probably not a documented goal, such a report could be used to falsely demonstrate that technical standards with patents in them are no problem for open source software.

Well, the report is out, and as Glyn Moody disclosed on December 31st, it's everything I predicted. This was a shameful set-up job to ensure there would be a plausible-looking statement on the public record. Its purpose: propagating the strawman needed to defend procurement policies that require permission to be sought from a commercial power-broker.

The strawman is that, if any open source project can be found that's successfully implementing a technical standard that requires use of patented techniques and has those patents licensed under "Fair, Reasonable And Non-Discriminatory" (FRAND) terms, then it must be OK for all open source projects and all variants of FRAND.

But that's wrong. Open source is not a set of rules waiting to be gamed by corporate lawyers and lobbyists. It's the pragmatic embodiment of an ideal called software freedom, based on the understanding that the flexibility to use, study, improve and share software is the essential dynamic of the new meshed society. When there's a difference between the pragmatic embodiment and the ideal, it's the ideal that wins every time.

Of course FRAND terms are incompatible with software freedom, even if you can find a project that has devised a construct to allow it to attempt to accommodate that incompatibility. When a standard includes patents that are not automatically licensed to all implementers -- on "Restriction Free" (RF) terms -- that means a standard may require permission to be implemented. Requiring explicit permission to act is anathema to software freedom.

The whole point of open source is that the software involved can be freely used and developed independently. If any implementer is required to have a relationship with anyone at all -- including an intermediary benefactor or non-profit -- that's automatically incompatible with the ideal of software freedom. The only "FRAND" compatible with software freedom is the "RF" - restriction-free - variant. 

So any procurement policy that's intended to be compatible with open source must specify that any required standards are only open if all knowingly-incorporated standards are available restriction free to all. If it permits standards with restrictions on implementation -- no matter how much the name for the restrictions is tuned to sound OK -- then it discriminates against open source. 

The sleight-of-hand to get an "official" report on the record in the EU can help us, though. Anyone who tries to cite it as proof is either mislead or attempting to mislead. Watch out for all mentions of it worldwide. They are the genetic marker for an attempt to stifle software freedom.

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