ECJ Microsoft judgment: grist for royalty free open standards

A helpful summary draws out the key issues from the final round of the European competition law case against Microsoft that has been rumbling on since forever but which finally seems to have ground to a halt with the penalty broadly unchanged.

There is, of course one saga that has been running longer than this, and it’s the development of a definition of an open standard by the UK government for online services. This began in 2002 (pdf) if not earlier and is still ongoing.

The European Court of Justice has delivered a remarkably helpful contribution to the open standards consultation in this judgment.

Licensing of any IP considered essential in the implementation of a standard is a hotly debated topic. Proprietary software companies’ desire for FRAND terms to be included is unrelenting borrowing the irrelevant practices of the telecommunications industry.

As we said in our response, FRAND standards cannot deliver a level playing field across providers, because ultimately a requirement for FRAND controls not only the standard but a proprietary software business model that creates barriers to entry in the software market, specifically new entrants using the GNU GPL licence class under which the majority of open source software is developed and released. Which is why a Microsoft study suggesting there are “certified” open source software licences that would be compatible with FRAND licensing is irrelevant or worse misleading.

Bringing us neatly to the ECJ judgment: paragragh 121:

Microsoft’s unilateral pledge not to assert any patent rights [only applies to] non-commercial distribution, excluding commercial distribution by ‘open source’ developers. […] [T]hat information is publicly available where a patent has been granted, [..] does not mean that it is possible for a developer to make use of it. That being so […] and in view of the distinction between patented and non-patented interoperability information it cannot be concluded that the No Patent agreement affords Microsoft’s licensees the right to implement patented technologies.

— Gerry Gavigan, Chair, 2 July 2012

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