Open Source/Open Standards

It’s well recognized by courts and regulators in many countries that standard setting among competitors can be procompetitive and good for consumers.  As noted by the 5th Circuit Court in 1988, “it has long been recognized that the establishment and monitoring of trade standards is a legitimate and beneficial function of trade associations . . . [and] a trade association is not by its nature a ‘walking conspiracy’, its every denial of some benefit amounting to an unreasonable restraint of trade.”(1)

But regulatory sands can shift, and especially at a time when broad and dramatic changes (political and otherwise) seem to be the rule rather than the exception, it makes sense for collaborative organizations to keep vigilant, and to review their policies and procedures on a regular basis to help ensure antitrust compliance.

There’s been a lot of activity in diverse parts of the standards and open source software development world of late. Here’s a selection of items you may have missed that I think might be of greatest interest.

Is there nowhere to hide? Streamlined targeted advertising comes to television. The on-line world has seen ever more laser-like ad targeting of viewers, particularly on dominant platforms like Google and Facebook. The same practice has existed in the print world in a more limited way for even longer, where sophisticated regional printing centers swapped ads in national magazines based on zip codes or other data. But what about television?

If you participate in standards development organizations, open source foundations, trade associations, or the like (Organizations), you already know that you’re required to comply with antitrust laws.  The risks of noncompliance are not theoretical – violations can result in severe criminal and civil penalties, both for your organization and the individuals involved.  The U.S. Department of Justice (DOJ) has in fact opened investigations into several standards organizations in recent years.  

In its simplest form, FOSS development requires almost no traditional economic, physical or management support. All that is needed is a place to host code in a manner that allows multiple developers to collaborate on its further development. As FOSS has become more commercially valuable and widely incorporated into vendor and customer strategic plans, however, additional layers of services and structures have evolved to allow FOSS development to become more efficient and robust and the user experience even more productive. These include training, a growing certification testing network, a variety of tools to assist in legal compliance matters, and a network of hosting entities providing a wide range of supporting services and frameworks.

The development of these tools has been an important factor in allowing the commercial marketplace to rapidly evolve from a closed, proprietary world to one heavily based on OSS.

It would not be an exaggeration to say that the magic of open source software (OSS) is based as much on legal innovation as it is on collaboration. Indeed, the essential innovation that launched free and open source software was not Richard Stallmans GNU Project, but his announcement of a revolutionary new licensing philosophy, and the actual license agreements needed to put that philosophy into effect. Only later did global collaboration among developers explode, riding the wave of Stallman's licenses, Linus Torvald's pioneering work in creating the distributed development process, and rapidly increasing telecommunications bandwidth.

In this installment, we'll explore how Stallman's philosophy spread and forked, and where it has taken us to today.

Everybody uses open source software (OSS) today. Millions of people contribute to the code itself. Indeed, a substantial percentage of the users and creators of OSS today are young enough to have never known a world that didn't rely on OSS. In other words, it's very easy to take this remarkable product of open collaboration for granted.

But that would be a mistake, especially given how unlikely it was that such a unique phenomenon could ever have taken hold. If you've never had reason to wonder how all this came about, this three part series is for you. In it, I'll review how remote developers began to collaborate to create OSS, how the legal tools to make its distribution possible evolved, and how the world came to embrace it.

For over thirty years U.S. companies have enjoyed a home court advantage in developing information and communications technology (ICT) standards. Specifically, the overwhelming majority of the more than five hundred consortia founded over the last thirty-five years to develop ICT standards have been formed under U.S. laws and headquartered in the U.S. That’s hardly a surprise because the vast majority of the companies that founded these same consortia were also American companies. Now the times may be a-changing.

The vast majority of free and open source (FOSS) projects today operate on a license in/license out basis. In other words, each contributor to a code base continues to own her code while committing to provide a license to anyone that wants to download that code. Of course, no developer ever actually signs a downstream license. Instead, all contributors to a given project agree on the OSI (Open Source Initiative) approved license they want to use, and those terms stand as an open promise to all downstream users.

But is that really the best way to operate? What about the minority of projects that require contributors to assign ownership of their code to the project? They clearly think assignment is a better way to go. Are they right?

Free and open source software (FOSS) development has for many years enjoyed an increasingly positive public image. Particularly in the last several years, it’s become recognized as the foundation upon which most of the modern computing world rests. FOSS proponents include many governments, too, including many in Europe and the European Commission itself.

That’s all good and quite appropriate, but it’s worth keeping in mind that FOSS involves the conscious agreement of head to head competitors to work towards a common result – something that would otherwise normally be a red flag to antitrust regulators in the US, competition authorities in Europe, and to many of their peers throughout the world. To date, those regulators do not seem to have expressed any concerns over FOSS development generally. But that can change.

Everything changes over time, from the constitutions of nations to political theories. Should the Open Source Software Definition be any different?

Earlier this week the Board of Directors of the Open Source Initiative issued an Affirmation of the Open Source Definition, inviting others to endorse the same position. The stated purpose of the release was to underline the importance of maintaining the open source software (OSS) definition in response to what the directors see as efforts to “undermine the integrity of open source.” Certainly, that definition has stood the test of time, and OSI has ably served as the faithful custodian of the definition of what can and cannot be referred to as OSS.

That said, while well-intentioned, the statement goes too far. It also suggests that the directors would do well to reflect on what their true role as custodians of the OSS definition should be.