Why did perennial litigant Rambus, Inc. settle with the European Commission?

Certainly the most watched standards-related legal conflict of the decade involves the participation of memory technology vendor Rambus, Inc. in a working group hosted by standards developer Joint Electron Device Engineering Council (JEDEC) in the early 1990s.  The fame (or notoriety) of the conflict arises in part from the importance of the conduct at issue (did Rambus set a "patent trap" for implementers of the standard that emerged from the working group?), and in part from the seemingly endless string of law suits that resulted from that conduct some fifteen years ago. 

Most of these suits were brought by Rambus against vendors that refused to pay royalties when they implemented the standard, but these suits almost always resulted in vigorous counterclaims against Rambus, brought by those same implementers.  And investigations into Rambus's conduct were also brought by both the Federal Trade Commission (FTC) in the United States, and by the European Commission in Europe.  A separate string of cases related to alleged price fixing and other improper conduct by other vendors that participated in the same working group, which ended in record settlement amounts being paid by those vendors to the regulators.

If you haven't heard the words "smart grid" before, that's likely to change soon.  That's especially so if you live in the U.S., where billions of dollars in incentive spending is pouring into making the smart grid a reality.  As you might expect, since I'm talking about it here, the smart grid will rely on standards to become real.  A whole lot of standards, in fact, and that's a problem

Those of you who are subscribers to my free standards eJournal Standards Today know that I've dedicated each of the last several issues to one of the many multi-billion dollar initiatives that the Obama Administration has launched that are heavily dependent on standards - which in many cases do not yet exist.   Each initiative is also of great complexity, and will need to rely on a level of cooperation and collaboration that does not natively exist in the marketplace.  That's certainly the case with the Smart Grid challenge, and that's what the latest issue of Standards Today is all about.

Throughout the 20th century, the U.S. electric power delivery infrastructure served our nation well,…  This once state-of-the-art system brought a level of prosperity to the United States unmatched by any other nation in the world. But a 21st-century U.S. economy cannot be built on a 20th-century electric grid.
       A Vision for the Modern Grid, National Energy Technology Laboratory, for the DOE, March 2007

For decades utility companies and environmentalists alike have known that more dramatic and economical advances in energy policy could be achieved through energy conservation than by any other means.  By utilizing techniques as simple as buying more efficient appliances and better insulating our homes we can lower our dependence on foreign oil, release fewer greenhouse gases, and savemoney as well, all at the same time.  For almost as long, utilities have promoted the concept of “demand side management,” and sought to enlist the aid of consumers and businesses to shift electricity usage to low-demand times of the day, with the potential benefit of avoiding the need to build expensive new power plants.

I am an avid, lifelong, reader of newspapers in general, and of the New York Times in particular.  And I'm a staunch believer in the essential role of an independent press in a modern democracy.  I’m also the owner of a Web site that serves over a million page views a month, some of which display short extracts of news articles, with links back to the full text.  On occasion those links lead back to stories appearing at the Web site of the Times.

So why am I trying to kill my beloved Times and its worthy brethren?

Before Linux.com went dark late last year, it was one of the most visited open source news aggregation and discussion sites.  As you may recall, word got this March that the Linux Foundation had taken Linux.com over, and was committed to making it bigger, better and richer than before.  Further to that goal, it set up "Ideaforge," to tap the developer and user communities to learn what they in an on-line resource to make the Linux ecosystem more successful and satisfying for all involved.

After months of effort behind the scenes, and some pretty impressive Web design, the Linux Foundation delivered on that promise last night.  What you'll find there is something that's different from anything that's ever existed before - an interactive, growing, feature and content rich resource that can help you hone your skills, find a job, assemble a Linux-based system, and, of course, access the most up to date news, blogs and ideas about open source software in general, and Linux in particular.  What it's all about can be summed up in just six words:  For the community, by the community.  And if you read this blog, that includes you.

It was an interesting trip, in all, providing a cascade of often starkly diverse images.  How varied a range?   On the natural grandeur list, I would add spectacular sunsets, wildernesses of soaring, broken redrock, and broad vistas of pristine desert. 

And at the opposite end of the spectrum, I might begin with the sights that greeted me when I crossed the Colorado early in the trip, and threaded my way through the 27th Annual Laughlin River Run, a meet that draws over 40,000 leather-clad, mostly aging bikers to what Motorcycle-usa.com calls, “one of the more popular events on the West Coast rally scene, packing bikini contests, custom bike shows, demo rides, poker runs, freak shows and tattoo contests into four-days of 24/7 fun.”  I can attest to the fact that it also packs in what is presumably one of the largest assemblages of multi-story, inflatable Jim Beam bottle and Budweiser can replicas to be found anywhere in one place.   

The southwestern landscape hosts a variety of signature geologic forms, some of which have become iconic as the backdrops for countless western movies.  If you should find yourself channel surfing late tonight, a single frame of a mesa, butte, spire or hoodoo will instantly lock you on to the genre, even before the dusty characters ride into view.

The desert rock garden is a less well known type, but it will be familiar to anyone who has spent any time knocking about the southwest, and around Arizona in particular.  Unlike the angular, striated spires and hoodoos that erode out of sedimentary formations, rock gardens are more often volcanic in origin than not, usually granitic, and rounded in form, characteristically resembling enormous blowups of the sand dribbles that a child makes at the beach by allowing a slurry of water and sand to slip through her fingers.

Long-time readers will know that whenever I can, I disappear into the desert for as long as I can.  Often, the opportunity arises to cadge a lift out west on the back of a business trip, and so it is that I write this in northwestern Arizona a couple days after spending a day in a conference room buried deep within the bowels of the raucus, random, blaring, unworldly nonsense that is otherwise known as the Mandalay Bay Casino and Resort, Las Vegas, Nevada.

Some of the nonsense worked to my favor, or at least amusement, as my $143.95 room was somehow traded up into a penthouse suite on the 62nd floor of the hotel – a suite that was bigger than the first floor of my admittedly small house, with 18 foot ceilings, a wall of glass behind motorized drapes, bar, living room, two bathrooms (one palatial), four flat screen TV sets (more than I have owned of any type in my entire life), and no coffee maker.

The service the lawyer renders is his professional knowledge and skill, but the commodity he sells is time — Reginald Heber Smith, inventor of the billable hour

Both reviled and ubiquitous, the billable hour is the roach of the legal world — Douglas McCollam, writing in the American Lawyer

Let's imagine that you would like to have your dilapidated, wood-sided house painted. The southern exposure is peeling, the soffits sport dark Rorschach patterns of mildew, and more than a few window sills have that uncomfortably punky feel to the touch that whispers "we're rotting — you must help us." You know that you can't put off facing the music any longer, and hope that the impact on your wallet will be no more painful than absolutely necessary.

So you do what any rational homeowner would — you get some referrals from people you trust, call the folks they recommend, and tell each of them that you'll be soliciting several bids. While you're at it, you also call the painter who, as luck would have it, had dropped a flyer in your mailbox that very afternoon.

Over the next week each housepainter stops by after work, walks around your house, scribbles a few notes, and promises to get back to you with a quote. Within a week, most of them actually do. Like any homeowner would, you select the cheapest, failing to note that it came from the painter you found through the flyer. Soon, the job is done, and he drops by to collect the agreed upon amount. Pleased, you pay him on the spot.

What a nice, logical system, especially for the buyer. You know just what you'll have to pay before you commit to pay it, and gain the benefit of competitive bidding as well. You'd be crazy to take on such a large financial commitment any other way, wouldn't you?

Any old standards hand forced to choose the single most disputed issue in standard setting over the past decade would likely respond with a deceivingly simple question: "What does it mean to be an 'open standard?'" A similar debate rages in the open source community between those that believe that some licenses (e.g., the BSD, MIT and Apache licenses) are "open enough," while others would respond with an emphatic Hell No! (or less printable words to similar effect).

That's not too surprising, because the question of what "open" means subsumes almost every other categorical question that information and communications technology (ICT) standards and open source folk are likely to disagree over, whether they be economic (should a vendor be able to be implement a standard free of charge, or in free and open source software (FOSS) licensed under a version of the General Public License (GPL)); systemic (are standards adopted by ISO/IEC JTC 1 "better" than those that are not); or procedural (must the economic and other terms upon which a necessary patent claim can be licensed be disclosed early in the development process)?

The reason why this background level of disagreement is relevant today is because the Obama Administration has pledged to use technology to bring an "unprecedented" level of transparency and interaction in government to the people.  If that's going to happen, though, it means that the platforms that the new administration adopts to provide open government will have to be open as well.  Which brings us at last to the question of just what, exactly, "open" should mean, when it comes to "open government."