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Andy UpdegroveThere are over 1,000,000 supported standards, with more being developed all the time. The Standards Blog examines how standards are developed, and their impact on business, society, the world, and the future. This site is hosted by Gesmer Updegrove LLP, a technology law firm based in Boston, Massachusetts, USA. GU is an internationally recognized leader in creating and representing the consortia that create and promote standards and open source software. The opinions expressed in the Standards Blog are those of Andy Updegrove alone, and not necessarily those of GU. Please see the Terms of Use and Privacy Policy for this site, which appear here.

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Introducing The Hague Declaration

Standards and SocietyWhen one thinks of international human rights, one thinks of The Hague - home of the International Court of Justice and the International Criminal Court, and the situs of an increasing number of Tribunals chartered to redress the assaults on human dignity that inexcusably continue to plague this planet.  Thus it is only fitting and proper that The Hague will witness yet another pronouncement in defense of human rights, and that the pronouncement in question has been titled The Hague Declaration by the new international group, called the Digital Standards Organization ("Digistan," for short), that crafted it.  In this blog entry, I'll talk about what the Declaration is all about, and what it is intended to achieve.

The basic premise is that as more and more of our basic freedoms (speech, assembly, interaction with government, and so on) move from the real to the virtual world, care must be taken to ensure that our ability to exercise these freedoms are not inadvertently eroded or lost.  And on the opportunity side, the Declaration recognizes that the Internet and the Web provide incredible and unique ways to bring the benefits heretofore enjoyed only in developed countries to those struggling for equality of opportunity in emerging countries. 

But our freedoms can only be preserved, and theses benefits can only be extended, to the extent that everyone has access to the Internet, without impediment, and at the lowest possible cost.  Just as we should be free to choose our newspapers, radio stations and political parties, we should be able to choose how we log on to the Internet, and the tools we use to interact there.  And for the less advantaged, this should be achievable at the lowest possible cost.  In order to achieve this end, we need the right digital standards.  If we do, we achieve lowest cost solutions and the greatest breadth of choice, and will be able to preserve what I have previously called our "Digital Information and Communication (ICT) Rights."   These are issues that I've written on frequently of late, most thoroughly in this issue of Standards Today.
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Rambus Ruling Overturned: A Legal Dispute of Dickensian Proportions Lurches On

Intellectual property Rights
The one great principle of the English law is, to make business for itself. There is no other principle distinctly, certainly, and consistently maintained through all its narrow turnings.  Charles Dickens, Bleak House

According to John the Apostle, the poor will be always with us.  So too, it seems, will the never-ending skein of cases enmeshing Rambus, Inc., the brash memory design company that famously participated in a JEDEC standard setting process in the early 1990s, and later asserted various patent claims against implementers of the very standards created by the working group in which it participated.  And while the lawyers may not be to blame in this case (or more properly, these many cases), the flood of litigation involving more than a half a dozen different vendors and government agencies certainly rivals the worst that Jarndyce ever threw against Jarndyce in Charles Dickens' epic tale of litigation gone wild.

The latest turning of the screw was announced this Tuesday, when the US Court of Appeals for the District of Columbia overturned a unanimous ruling by the five Commissioners of the Federal Trade Commission (who had, in their own turn, earlier overturned the decision of an FTC Administrative Law Judge, who had reached a similar result to the Federal Circuit, which had itself earlier overturned the verdict of a trial court that...well, you get the idea).  In a related decision, the FTC had capped the royalties that Rambus could require implementers of the standards to pay.  Now that Jill, too, will go tumbling down after the Jack that fell to the Appeals Court's reinterpretation of the law.

The long and the short of the latest decision is that the Court of Appeals disagreed with the FTC's conclusion that Rambus's activities in JEDEC constituted a violation of antitrust law, and also questioned whether the Commissioners had properly concluded that Rambus had violated JEDEC's patent disclosure policy.  Summarizing and oversimplifying a complex analysis, the FTC had based its conclusions on the assumption that if Rambus had disclosed its patentable inventions in timely fashion, JEDEC would have either chosen another, non-infringing option, or would have required Rambus (under its standing rules) to pledge to make patent licenses available on reasonable and non-discriminatory (RAND) terms.  The higher court held that under existing precedents, both of these alternatives would need to result in a violation of antitrust laws in order for Rambus to be held accountable .

Fortunately for Rambus, the court held that engaging in deceptive conduct to avoid the latter alternative would not violate anticompetition law, even where the result was to create monopoly power.  Or, in the more formalistic language of the Court, "the FTC failed to demonstrate that Rambus's conduct was exclusionary under settled principles of antitrust law".
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At the Texas Hearing on Electronic Documents

OpenDocument and OOXMLThis week found me in Austin, Texas for the Linux Foundation Collaboration Summit (which was, incidentally, excellent), and therefore able to spend Wednesday morning in a hearing room at the State Capitol.  That morning, the Government Reform Committee of the Texas House of Representatives, chaired by representative William "Bill" Callegari, was scheduled to hear testimony on electronic document issues, and I had been asked to be one of the invited experts to help put them in the picture. 

Texas, as you may recall, is one of six states in 2007 that considered whether to take legislative action in connection with open document standards. After hearings on the topic, the decision was to commission further study rather than to act on the bill that had been introduced.  More specifically, the Government Reform Committee was directed to:
Research, investigate, and make recommendations on how electronic documents can be created, maintained, exchanged, and preserved by the state in a manner that encourages appropriate government control, access, choice, interoperability, and vendor neutrality. The committee shall consider, but not be limited to, public access to information, expected storage life of electronic documents, costs of implementation, and savings.
The current hearing had been scheduled in a committee of the House of Representatives, which appears to be taking a more active role at this point in time than the State Senate, although any eventual bill will have to be resolved between both branches of the legislature.

Hearings like this (and the other activities that are part of the same overall process) are held every day in state houses around the country, addressing hundreds of issues of all types.  But unless you have the time to seek them out (or to watch them on a public cable channel, if available), it's easy to forget that this is an important element of the grist that governments mill in order to eventually produce legislation.  For those that might be interested in such matters and wonder what a hearing is like, I'll therefore provide a brief overview of what this particular hearing was about, who presented, and what they said.
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Standards to the People! (Updated Twice)

OpenDocument and OOXML
Updated again 4/9:  The International Herald Tribune now has a story here, which begins:
Roughly 60 data experts staged a rare and noisy street demonstration in downtown Oslo on Wednesday to protest the adoption of Microsoft Corp.'s document format as an international standard and against Norway voting for the move.
And also the first video is available here.

Updated 4/9:
  Aslam Raffee has posted two pictures and some brief notes on the Oslo protest.  You can find the full text here and here.  Many more pictures are here and here.  From the pictures, it appears that they had a large and enthusiastic turnout, and press coverage as well. Geir Isene has now also posted a blog entry, with the full text of Demonstration Convenor Steven Pepper's speech here.  Here are some excerpts from Pepper's speech:

Friends, Bloggers, Free Coders, Supporters of Open Standards!

We are not here today in order to bash Microsoft.

–We are here because we believe in open standards.

We are not even here today because we are opposed to OOXML.

–We are here because we are opposed to OOXML as an ISO standard.

We are not here because we want to discredit the ISO.
We are here because we want to defend ISO’s integrity.

–We are here because we want to draw attention to the scandalous behaviour of the people in Standard Norway whose job it is to represent Norwegian users and software vendors.

And we are here because we want to prevent the adoption of a damaging IT standard in Norway....

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Vendor Escalation, Process Politicalization, and What Needs to Happen Next

OpenDocument and OOXML

Not so very long ago, most standards were set in a largely collegial atmosphere by career professionals who met in face to face meetings over a period of years.  Along the way, they came to know each other as individuals, and established relationships that helped the process move forward and allowed for productive give and take.

While this process was not without its back scratching and game playing, at least the impact on interests other than those directly involved tended to be limited.  After all, if performance standards for light bulbs had settled out at 45, 65 and 95 watts rather than 40, 60 and 90, no end user’s ox would have been gored on the desktop, when it came to lighting.

During these more collaborative times, those that defined the rules for organizations such as ISO, IEC and ANSI (the American National standards Institute) tended not to favor simple majority voting to determine outcomes.  Instead, they put a high value on consensus, in order to lessen the chance that minority interests would be oppressed, or important technical matters ignored.  Other rules required that compliant processes provide a means whereby specific technical decisions could be appealed, so that the consensus process could not be abused.

The rules that included these principles were fairly high level, and often less than legally precise.  For the most part, this worked well enough over time, and allowed an already necessarily slow, surface mail-based process (in pre-Internet days) to move a bit faster than it otherwise would have if more detailed process protections were in place.

In much of the standards development world, which encompasses every area of products, services and activity, this is still largely the way the standards systems operates.  But sadly, that is no longer the case where information and communications technology (ICT) standards are created.

This is now:  What we have just witnessed with the OOXML adoption process is the catastrophic failure of a system built for one purpose that has been subjected to forces that it was not designed to withstand.  Those forces included intense pressure from vendors, and even political pressure.  The tactics utilized appear to have included taking advantage of rules crafted to foster openness, placing or outmaneuvering committee chairs, and recruiting employers to pressure committee members to vote their employers’ interests rather than their own technical judgment.

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BRM Blowback (and ISO Press Release)

OpenDocument and OOXML
Yesterday, I sent out the latest issue of my eJournal, Standards Today.  Not surprisingly, it focused on the OOXML process, and what can be learned from it.  Below is the Editorial, and you can  find the complete issue here.  You can sign up for a free subscription here.
Updated:  ISO has now issued its confirmatory press release.  The full text (less biolerplate) is appended at the end of this entry.  I note with some interest that the press release includes the following language:
Subject to there being no formal appeals from ISO/IEC national bodies in the next two months, the International Standard will accordingly proceed to publication.

The last issue of Standards Today was titled, ODF vs. OOXML on the Eve of the BRM. That issue focused on the Ballot Resolution Meeting (BRM) about to be held in Geneva, Switzerland as the penultimate act in the Fast Track approval process of DIS 29500, the specification submitted by Ecma and based upon Microsoft's OfficeOpen XML document formats (OOXML).

My editorial in that issue was prophetically titled The Overwhelming of ISO/IEC JTC1, due to the fact that only one week had been allocated to resolving more than 1,100 separate comments (some 900 of them substantive) that had been registered by National Bodies from around the world during the voting period that failed to approve OOXML during the initial balloting period in mid-2007.

Without exception, every fear that I raised in that editorial was realized, and worse. Here is a sampling:

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OOXML is Approved [retitled]

OpenDocument and OOXML
Updated: 

1. I have now received confirmation from a second source that these results are accurate.
2. Microsoft has issued a press release announcing that OOXML "Appears to Win Approval" (text below)
3. (1:00 PM EDT) I have now received a copy of the ISO communication from a National Body source entitled to receive it, and can confirm the data below.
4.  Ecma's press release confirming approval is here

Open Malaysia has posted a final update of their vote registry, based upon an email from the OpenDoc Society to which is attached what they say are the final numbers on the OOXML vote.  The document looks authentic, and I should have an independent verification some time this morning.  You can see the final totals reflected in the Open Malaysia chart, which can be found here.  The summary in the document reads as follows:


        Result of voting

P-Members voting: 24 in favour out of 32 = 75 % (requirement >= 66.66%)

(P-Members having abstained are not counted in this vote.)

Member bodies voting: 10 negative votes out of 71 = 14 % (requirement <= 25%)

Approved


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OOXML Woes Continue as Norway Files Protest with ISO Relating to its Own Vote

OpenDocument and OOXMLUpdated 4/1:  A press release has been issued by Standards Norge defending its decision.  An English translation of that press release is posted at Steve McGibbon's blog, and can be found here.  Geir Isene has posted a partial response here.

One of the things that most of us learn at our mother's knee is that you shouldn't rush things.  If you do, you'll make silly mistakes.  Mothers also tend to tell their children to play by the rules, but some apparently listen better than others to that advice as well.

The wisdom of the first truism was demonstrated most clearly during the Ballot Resolution Meeting in Geneva, although its effects had been evident throughout the entire Fast Track process.  In the latest evidence of the other truism, the first formal protest has been filed with ISO over a National Body vote.  The National Body in question is Norway, and the protest has been filed by...(wait for it)...Norway itself. 

How can all of this be true in a country like Norway?  Elections this flawed usually only occur in Florida.

The complete story has been developing at the blog of Geir Isene, who left a comment at my blog yesterday, pointing tohis account of what had transpired on Friday at a meeting of Standards Norge, the Norwegian Standards Intitute.  That entry read in part as follows:
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OOXML Vote Tracker and Calculation Guide

OpenDocument and OOXML
Updated:  (8:45 AM EDT 4/1):  OOXML has  been adopted

Updated:  (1:45 OM EDT 3/31):
Reuters has just reported that ISO will not announce the results of the OOXML vote until Wednesday April 2

Updated (3:30 PM EDT 3/29): 
Unless thus-far unannounced votes that were formerly "approve" or "abstain" switch to "disapprove," it appears that OOXML will be approved.  See details in the cumulative "updates" section below


Like many I'm sure, I'm trying to keep track of the votes on OOXML as they become known.  I've set up a spreadsheet where I'm recording votes as they become known, whether they are formal and confirmed, or coming to light from other sources, and therefore to a greater or lesser extent possibly not accurate, what the sources are, and any associated comments (mostly from Pamela's articles at Groklaw, the most recent of which is being updated with new votes as news comes in to her).  You'll find the most information about specific country voting there, and at several of her prior blog posts, including this one, this one, this one, and this one.

For the benefit of those that want to get a quick look throughout the weekend, I'll post the running tally here of which votes have switched, what the net change has been, now many votes have come to light, and how many remain to be announced.  It is likely that it will not be possible to know the final vote until all votes are in, due to the complicated, double test way in which the vote is counted, which is complicated by the fact that the final number of abstentions, and whether they move from "yes" or "no" votes, can decrease the number of votes that need to switch to "yes" votes. For that reason, I also include an explanation of how the omplicated two-part test for approval will be calculated.

You may also want to read my last blog entry, which discusses the impact (or non-impact) of a vote to approve OOXML, called The Future of ODF and OOXML.
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The Future of ODF and OOXML

OpenDocument and OOXML

Tomorrow is the last day that a National Body (NB) can change its vote on OOXML.  Only a few NBs have announced what they have decided, and of those, not enough have changed their votes to reverse the outcome of last summer, in which DIS 29500 (a/k/a OOXML) failed to gain approval.  It will not be until Monday that the final vote will be announced by ISO/IEC JTC1 (or become public through disclosure by an NB committee member, as the case may be).

Many journalists and others have asked me whether I have a prediction on what the outcome will be, and also what I think it will mean if OOXML is approved.  I don’t have an answer to the first question, as there are too many countries involved, and too much may change until the last minute.  But I do have an answer to the second question, and that answer is the same one that I have given every time that a new decision point has loomed in the ongoing quest for a useful format standard that can bring competition and innovation back to the desktop, as well as ensure that the history and creativity of today will remain accessible far into the future.

That answer is this:  if anyone had asked me to predict in August of 2005 (the date of the initial Massachusetts decision that set the ODF ball rolling) how far ODF might go and what impact it might have, I would never have guessed that it would have gone so far, and had such impact, in so short a period of time.  I think it’s safe to say that whatever happens with the OOXML vote is likely to have little true impact at all on the future success of ODF compliant products. 

Here are ten reasons why I believe this prediction will be borne out.