Category Archives: Public Policy

The Future Of Innovation Has Patent-Free Standards

It may come as a surprise to find that some supposedly “open“ standards – including those ratified by standards development organisations (SDOs) like ISO, CEN and ETSI – can’t be implemented without going cap-in-hand to the world’s largest companies to buy a licence. As I explained for OSI, it’s the result of a legacy approach to innovation from the days when it was only really about hardware.

As with any legal loophole, simply existing meant it was exploited and became the norm, even if it was initially temporary (“like income tax”). Once exploitation of a legal loophole becomes competitive, it becomes its own justification for the existence of the regulations (“look at the economic value of this segment”) and they become near impossible to remove – even when the original justification has ceased to need preferential protection.

So today we see a swathe of rich consumer electronics and telecoms companies, addicted to the revenue they get from licensing the patents (SEPs) they have embedded in “open” standards*, lobbying hard to ensure their value to the economy is recognised. They have much to lose from the loss of their special status, so invest much to protect it and to glorify it.

On the other hand, software companies have less to gain by the reformation of this anachronism – to the extent they have flirted with SEPs, maybe even a little to lose. Meanwhile, the new world of Open Source powered innovation lacks rich lobbyists due to its diffusion, and is accustomed to working round the obscenity of valuable standards being taxed by patent cartels. While the freedoms of Open Source mitigate to a degree, this means interoperability and interchangeability are being sacrificed on the altar of SEP protection.

It is not an ideological outlook that makes thoughtful Open Source advocates oppose patents in standards. It’s primarily pragmatic. Requiring a patent license to implement a standard implies that those implementing it must engage in private negotiation to get a license to proceed. That’s super-toxic to Open Source, whose mainspring is code owners giving advance, un-negotiated, equal permission to enjoy the software in any way – use, improve, share, monetise – all protected by a rights license reviewed and approved by OSI. So most projects avoid or work around SEP-encumbered standards and the ones that don’t are industry-specific.

OSI thus takes the position that standards destined to be implemented as Open Source must come with all the rights waived (and has done so for 15+ years). For some, that is already true; for others it is being actively resisted. If you want the crop of innovation you have to get the growing conditions right, and this new crop has different needs to the old hardware world and its long horizons. The future of innovation is open innovation, implemented as Open Source. Using anachronistic patent-centric metrics and regulations will chill that future. How about we don’t do that?

*Reusable Footnote: The word “open” is overloaded here.

(An edited version of this article appeared in the OpenUK survey report 2022)

How Much Interoperability Is Enough?

Interoperability is primarily a matter of the use case, not of the technology. Policymakers considering interoperability mandates need to be watchful for extremes of perfection or compromise, which both offer a game to be exploited by the unscrupulous.

How I Learned To Type

Reviewers of a paper concerning interoperability complained that some sections seemed to imply only 100% functional equivalence would be acceptable, and told us “much smaller percentages are perfectly adequate.” So how much interoperability is enough interoperability? The answer, dear to the hearts of every politician, is “it depends”. 

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Chalk and Cheese

How similar are open source development and standards development? Not at all, and even the words they have in common mean different things in each.

It’s a traaap

It is often asserted that open source and open standards are in some way similar. For example, in the accompanying letter to a recent submission to the European Commission, a major European-based technology company that is very active is standardisation said:

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The Missing Stakeholders

The coming wave of digital regulation may claim to target “Big Tech” but will inevitably end up harming citizen-innovators most because regulators have forgotten to include them in their process.

Tracks in the snow suggest a bird being captured by a cat.
Stakeholder-Citizen Interaction

Here come the regulators. “Big Tech” companies like Facebook and Google definitely deserve some guide-rails, as well as some consequences for the unwanted impacts they have foisted on society along with the desirable ones. Facebook in particular has some deep, serious consequences of its amorality due soon. But so far, pretty much every regulation relating to the digital realm is defective.

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Policy Distractions

The open source network effect depends on unrestricted software freedoms. Licensing & business models that restrict those freedoms aren’t seeking the open source effect – or if they are they will fail – so calling a policy, product or company that does so “open source” is false advertising.

Woods Beautifully and Validly Concealed By Sunlit Trees

A focus solely on open source legal and licensing matters as they affect companies creates bad outcomes — for leaders and their advisers who are surprised by community and market reactions, and for developers who feel abused and betrayed by “open source companies” and “government initiatives” that actually put obstacles in their path rather than remove them.  While the minutiae of open source licensing and governance need to be understood and accommodated, it’s vital to never lose sight of the open source effect itself.

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