How to Hijack an EU Open Source Strategy Paper

Open source is an outsider, not part of the establishment. One price it pays for this is not being privy to all the decisions that are made in the field of governmental policy. Too often, established players are involved without any counterbalancing input from the free software side. Generally, we don't see all the machinations and deals that go on here behind closed doors. But thanks to the increasingly-indispensable Wikileaks, we have the opportunity to observe how an organisation close to Microsoft is attempting to re-write – and hijack – an important European Union open source strategy paper.

Here's Wikileak's explanation of why this is an important document:

This file is an edited version of the EU OSS Strategy draft with the input of Jonathan Zuck, President of the Association for Competitive Technology, an organisation that has strong ties with Microsoft

The file is a draft for an expert panel formed by the European Commission. This panel is divided into workgroup (IPR, Open Source, digital life, etc.) ACT and Comptia have been infiltrating every workgroup, even the one on Open Source (WG 7). They are doing the best they can to drown any initiative that would not only promote OSS in Europe but also that could help Europe create a sucessful European software sector.

The audience for this document could be journalists who would be interested in getting to know more how lobbies of all kind influence the European institutions. Here it is perhaps even more stringent as ACT is clearly an US organization with ties to Microsoft. Verifications might not be easy as this is an internal draft. The best contact might be commission personnel: Lars.PEDERSEN@ec.europa.eu; Michel.Lacroix@ec.europa.eu

It has been leaked as it is important to have the public know how actual policy making is being influenced by lobbies that are precisely under the legal scrutiny of the European Commission. The urgency of the publication of this document is real in the sense that outside pressure would foce the Commission to "clean the committees" or at least give a lesser credit to the work of this workgroup.

What makes this document fascinating is that it contains both the original and modified text (in glorious colour, so it's really worth downloading it and taking a look), which means that we can see what exactly an organisation sympathetic to Microsoft – and partly funded by them – is worried about, and how it is trying to head off the threat.

The dominant theme of the changes is foregrounding what the paper calls “mixed mode” or “mixed source”: using open source with proprietary code in hybrid solutions. For example, early on, the Context is originally described as:

To be provided as part of the OSS work group work and V2 of the EC document

But the ACT wants to change that is to this:

To be provided as part of the OSS work group work and V2 of the EC document, while noting that the increasing use of OSS within mainstream commercial offerings and mixed-source software and solutions makes a distinct treatment of or preferences for OSS more difficult to define.

Similarly, the Scope goes from

In this document OSS covers :

Open Source providers (OSS communities),

Service providers for OSS integration and support,

to

In this document OSS covers :

Open Source providers (OSS communities),

Service providers for OSS integration and support,

OSS as part of mixed solutions blending open and proprietary code.

It's easy to see the hand of Microsoft in this, albeit indirectly, since this is precisely the current line it is pushing: that, yes, open source has its place, but that place is in a world where open source and proprietary are treated as if they were the same thing, and ignoring the special characteristics of the former so as to negate them.

Here's another telling change, later on, when this:

At the current point in time it is impossible to predict when and if that trend will come to an end the future of mixed mode. New companies enter the market with models spanning the entire range of proprietary models over mixed models to OSS models. Only time will show which models will be most successful in Europe.

becomes this:

At the current point in time it is impossible to predict the future of mixed mode. New companies enter the market with models spanning the entire range of proprietary models over mixed models to OSS models. The economic success of firms based on mixed model, however, suggests it is a promising model for the future.

As you might expect, the issue of intellectual monopolies is another area where the ACT is keen to re-write the facts. Indeed, this document's changes show that it wants the *whole* of the following to be deleted, since it was clearly far too near the knuckle for lovers of intellectual monopolies:

There were heated debates about patent licensing schemes. We provide the following point as an input to Workgroup n°3

Exclusion from standards implementation (amoung the workgroup SAP and CompTIA did not agree to the following) : The procurement issue is aggravated by discrimination against OSS in the licensing conditions for some IT standards.

Over the past years it has become clear that specific patent licensing schemes, most importantly the so-called “RAND” 7 terms, discriminate against OSS implementation. This issue complicated the recent antitrust cases in Europe and was subject of a specific workshop on “IPR in ICT standardisation” 8 organised by DG Enterprise.

The workshop revealed a fundamental incompatibility of RAND models with OSS implementations, as well as a very controversial debate around this issue. From the perspective of OSS adoption,9 it could be said that RAND conditions fall short of the Common Patent Policy of ITU-T, ITU-R, ISO and IEC, which states that “a patent embodied fully or partly in a Recommendation | Deliverable must be accessible to everybody without undue constraints."

This calls forth the following howl from the ACT:

[THERE IS NO FUNDAMENTAL INCOMPATIBILITY. SEE FOOTNOTE 15]

The deleted passage continues:

Examples of such exclusions can be found in various areas. One of these areas are the MPEG standards in multimedia, where innovation has been dramatically reduced before the recent development of the Dirac codec by the BBC as OSS provided a high-quality modern alternative that is not patent encumbered.10 /

Unsubstantiated use of IPR threats . It is important that effective measures are implemented to protect the interests of both open source and proprietary software both as a software development and as a business model. Governments should ensure a level playing field for both software development models.

While we recognises the legitimate rights of intellectual property rights owners, we regret recent incidents of patent holders abuse and unsubstantiated use of their rights against open source/free software developers.

A recent development, which deserves the careful attention from the Commission, is the use of unsubstantiated threats of intellectual property rights infringements against those who attempt to develop interoperable software products. As an example, a major software company has publicly stated that it believes Linux and other open source software infringes 235 of its patents, but has never identified any of these patents.

Vague claims by patent holders that open source software may infringe their patent rights should be obliged to identify supposedly infringed patents or cease to make unsubstantiated allegations. This would prevent patents from being invoked to spread fear, uncertainty and doubt (“FUD”) against open source software products in the minds of both developers and users. The behaviour of creating FUD against open source software solutions should not be tolerated, as it amounts to an anticompetitive strategy aimed at distorting conditions in the marketplace to the detriment of OSS products.

Which provokes an even louder howl:

WE DISAGREE WITH SEVERAL POINTS IN THIS SECTION. THIS PAPER SHOULD NOT ENCROACH ON THE WORK OF WG 3, SO
THE SECTION WOULD BEST BE DELETED.

As you might expect, 180 degree U-turns are also requested in the Actions section. So what starts out as:

In addition, it is fundamental to ensure that open source/free software developers and distributors enjoy adequate protection that allows them to implement standardised technologies protected by patents in a way compatible with open source/free software licenses.

Becomes:

According to some, in addition, it is fundamental to ensure that open source/free software developers and distributors enjoy adequate protection that allows them to implement standardised technologies protected by patents in a way compatible with open source/free software licenses.

plus its exact opposite:

Others believe the current standardisation environment is already technology neutral, and that standardisation should continue to be voluntary and market-led.

Others as in Microsoft and mates.

All-in-all, the modifications to the document provide a fascinating insight into how lobbyists operate in their attempt to neuter threats to their constituencies through the shameless evisceration and outright inversion of content. Fortunately, when the final strategy document comes out, we will be able to pinpoint exactly where ACT's agenda has been inserted. Of course, before then we need to make the above document as widely known as possible, so that the relevant people at the European Union are aware of what's going on, and maybe even take action to prevent this gross distortion of the paper's purpose.

In addition, we must ensure that Wikileaks can continue to provide its invaluable service. The world of openness – including open source - would be the poorer without it. To that end, we need to support its current call for funds to help it carry on its work, and I urge you to make a donation, however modest.

You can follow Glyn Moody on Twitter as @glynmoody.