FRAND or FOSS?

Standards in technology are generally considered to be a good thing. Having documented technologies that can be implemented by all means that businesses can compete on equal terms and consumers benefit from the effects of this competition. Of course, before a technology can be standardised, individual technology players need to do the work of innovation to develop the techniques the standard will encompass. Sometimes these technology players will have sought to protect their investment in innovation by obtaining a patent for the innovative technology they have created. Patents are designed to provide a monopoly over a specific technological process for the owner, so how does this monopoly fit in with the idea of a standard?

The answer is that it doesn’t, really. In situations where implementing a standard would necessarily infringe on someone’s patent, the standards creation bodies will usually try to get the patent’s owner to agree some terms which will guarantee them a return for their investment but which will still allow everyone in the market to actually use the standard in their products. These kinds of terms are often referred to as RAND or FRAND – standing for (fair), reasonable and non-discriminatory.

FRAND is a slippery term. There’s no single definition, which makes determining what is and is not FRAND hard. Most people agree that the general principle behind FRAND is that the fees or other requirements for use of the patents in question are not ridiculously high and are the same for anyone who wishes to implement the standard, whether your best friend or fiercest competitor.

That sounds like a good idea to most people, and for more traditional hardware and closed source implementations of standards it arguably is. There can be problems, however, when software under a free or open source software wishes to implement a standard available under FRAND terms. For example, the GNU GPL family of licences all contain conditions that say – in essence – that if a distributor of the software is forced to pay for the use of a patent in the software, they must either cease distribution or obtain a licence for everyone (the schoolroom chewing gum scenario). These conditions are designed to deter patent owners from pursuing distributors of GPL software, but they mean that payable FRAND standards and GPL software do not play well together.

Even where the licence is not GPL, there can be problems with the interaction between FRAND and FOSS. One way in which patent owners make their patents available for use in a standard is by issuing a ‘non-assert’ promise. These are unilateral undertakings to not assert their patent rights, and in this context they are usually conditional on the patent being used in an implementation of the standard (not unreasonably). However in the context of open development, this can be something of a nightmare. You may write a piece of code that implements the standard and release it under a FOSS licence, confident that you are protected from patent litigation by the non-assert. An unwary downstream developer looks at your code – specifically the bit that implements the patent – and thinks: “that’s a nice bit of code – I’ll use that for my next project…” Of course, unless by some happy accident their next project is also implementing the standard then their use of the same code will not be protected by the non-assert, creating a potentially very dangerous problem.

The question of the compatibility of FRAND terms with FOSS software has become a vexed one recently due to the UK Government’s Cabinet Office seeking to create a policy around the use of open standards in government IT. The idea here is to reduce the currently crippling costs of government IT systems by opening the procurement process up to more competition. One of the perceived problems with the current situation is that there are only a few providers of solutions who can cope with the government’s massive requirements, and that the monolithic solutions they provide are often very hard to substitute once they are in place. The solution, or part of it anyway, is to break up the requirements into smaller deliverables that could be provided by more and smaller companies. How do you get these smaller solutions to work together? Use standards, preferable ‘open’ ones. That ought to create a level playing field for all sizes of providers, and alongside that make it easier to pitch FOSS solutions – with their problems with more restrictive standards and tendency to be supported by SMEs – to government.

Initially the Cabinet Office just stated that they would mandate open standards in future government procurements. Unfortunately this ran into problem of definition. Just as with FRAND – no-one has a single, snappy definition of what and open standard actually is. It’s easy to assume – with Justice Potter Stewart – that we will know one when we see one, but in practice there are polarised views in this area. The Cabinet Office’s initial definition was not to everyone’s liking. To resolve this potential confusion, not to say conflict, the Cabinet Office launched a consultation exercise to help pin down exactly what an open standard is, according to the largest possible group of respondents. The deadline for this has since been extended after it emerged that a perception of bias might have been introduced by the conduct of the process.

Some evidence of the ructions that lead to the consultation exercise can be seem in the documents columnist Glynn Moody obtained through a Freedom of Information request. I will not attempt to summarise this weighty sheaf, but I would recommend glancing through them if you want to see how lobbying of the government over IT matters looks in its naked state. At issue is the idea that – as in the Cabinet Office’s initial definition – open standards should be entirely royalty free. Now obviously ‘at no cost’ is about as low a barrier to entry as one can get, at least in monetary terms, so it’s easy to see why the Cabinet Office adopted this definition from its original home at the W3C. For one thing, it would get around the GPL-compatibility issue mentioned above, and if used instead of a non-assert, also the ‘mode of use’ problem I have cited. However it would also exclude some existing technical standards (although not many – most are already royalty free), and clearly some players are not going to be happy with that…

OSS Watch is interested in the outcome of this process because – as a non-advocacy group – we are keen that all potential solutions are able to be assessed on their merits alone. We would strongly recommend that everyone responds to the UK government consultation exercise, in order that a truly communal definition of open standards can be achieved.