FRAND Is Not A Compliance Issue

The European Commission has been persuaded by lobbyists to change its position on standards to permit the use of FRAND license terms for patents applicable to technologies within those standards. This is a massive mistake that will harm innovation by chilling open source community engagement.

It’s possible this position reflects a desire to avoid falling foul of the USTR Special 301 position against compulsory licensing, but it seems more likely to be a bureaucrat appeasing aggressive lobbying from the telecoms sector and naively believing it to be a non-issue with open source. That belief arises because several authorities have explained the problem in terms of license compatibility issues, especially with the GPL. For example, the Free Software Foundation Europe, in an otherwise fine statement entitled “EU Jeopardises its own goals in standardisation with FRAND licensing” say:

this direction may be seriously limited if the Commission fails to acknowledge the incompatibility of FRAND licensing terms with Free Software licenses.

While it’s true that some licenses are explicitly incompatible with it, treating FRAND as a license compliance issue misses the point. Using this framing, all that will happen is corporate lawyers will recommend avoiding the GPL, perhaps by licensing code under the BSD or MIT licenses, and declare the problem solved.  They will also hear the use of the word “free” as a requirement to waive fees for community usage, as cartels like MPEG-LA have done. The problem is neither limited to license compliance nor to the requirement for payment. No, it’s a software freedom issue that goes beyond licensing.

The real problem is that FRAND licensing prohibits unfettered usage of implementations and usually requires usage tracking. That violates criteria 1, 3, 7 of the Open Source Definition and probably criteria 2, 5, 6 as well. Although we’ve thought of the OSD thus far as a set of rules for determining whether licenses deliver software freedom, it’s time to look beyond licensing (as indeed OSI is now doing) and use the OSD to measure wider practices as well.

Here’s the dynamic. Developers will always wonder whether the prototype or gadget they made using a FRAND-encumbered standard needs a patent license. They will know that the application of FRAND terms to the standard means someone, somewhere thinks they might be able to get away with such a claim and wants to leave the option open just in case someone’s success is worth taxing later. Under these conditions most open source developers outside the cross-licensing cartel of a traditional standards body simply will not use the standard, limiting its adoption to the in-crowd.

Just because you can find an OSD-compliant license under which these other issues are not mentioned doesn’t mean you’ve found a solution. A standard under FRAND patent licensing terms doesn’t magically become an open standard just because you license implementations under the BSD.

Allowing FRAND means prohibiting true open source collaboration and building a wall around your standard that innovators won’t scale. FRAND kills unexpected innovation and makes your standard unacceptable to the next generation of developers. It’s that simple.