I love reading smart people’s blogs – and Rick is definitely among that group. I have really enjoyed reading his post, “Standards media formats and licensing: JPEG vs. MPEG” and then the associated post, “Balance of Interest.” In the first one, Rick referred to my recent post “Contribution, Collaboration, & Implementation” and has spurred me to comment further.

First let me say that I agree with Rick’s essential premise that having greater representation in standards working groups is a good thing. There is no question that vendors tend to dominate most working groups quite simply because standards are an expensive game. Between travel costs and time that equates to opportunity costs, staying engaged with a standards working group can be…well…costly. In fact there are some interesting solutions out there (if I’m not mistaken, the Australia national standards body had a fund set up from the coal industry that they manage in a neutral way for ISO participation by smaller interested parties).

If you look at many orgs, the rules are structured so that the more participants one org may send, the more votes they have. Of course, the rules may say that the individual is a member rather than their company – but who is paying their travel? their salaries? I’m not saying this in a pejorative fashion – just pointing out the reality of the environment in which many standards are created.

So – onto the point that Rick was questioning me about. He and I are using “balance” in different ways. He is speaking of balance on committees for the standards-setting process. No disagreement from me there. I’m speaking of the balance in respect to the discussion of “open standards” meaning that there should be no IP restrictions in the standard in order for it to be open. This is different.

The vast majority of ICT standards are created based upon some original contribution from a commercial entity. These submissions are done in order to lay the foundation for a standard, and that decision to contribute is based on the idea of getting some return on the contribution. The return is NOT necessarily about royalties. The return may be that a product that includes the standard as part of it will do better in the marketplace because of the broader adoption of the baseline technology as a standard. The return might be in improved interoperability of a given product or service due to the adoption of that standard. There are competitive reasons for contributions – the hope may be to displace a competitor who is using a non-standardized solution. There are many, many reasons. And yes – some seek royalties from the IP included in standards. (For Microsoft, this is very, very rarely the case. There have been a few examples, but we almost never seek royalties from IP in standards. Historically we have primarily earned our money based on packaged products.)

The balance issue I speak of stems from the idea that many in the “open standards” discussion have placed an over-emphasis on implementers of standards – particularly those who want to implement under licensing that conflicts with patent terms. Essentially the simplified argument is that because those licensing models are not compatible with patent terms, then there should be no IP protections in the standards process so those implementers can implement. That is not balance – that is imbalance.

As a society, we want contributions to standards to continue. If you make the standards environment hostile to contributors…they will contribute less. I don’t think anyone who supports the current “open standards” arguments I have suggested above would like the idea that the contributors start relying more on SIGs than formalized orgs. Probably sub-optimal.

I have no problem with the concept of royalty-free patent licensing. In fact, nor does my employer (MS). I favor the idea the the organizations themselves, and their members, have the ability to choose which model makes sense. I think that things like defensive suspension are really important. Those terms have a dampening effect on litigation in a given sphere – that is a good thing. I think that limitation of scope is reasonable. If my contribution is about a given protocol, but it turns out that same technology is also the world’s greatest aphrodisiac (going for the over-the-top example here to make a point), then my royalty-free contribution should reasonably be limited to the protocol. I may well want to keep the super love-stuff (sorry – this is a really tortured analogy) to myself, or release it as a completely proprietary invention. I fundamentally still believe that innovations are opportunities…and that is a good thing (for the inventor and for society). But the “no IP restrictions” concept of “open standards” does away with too much. Out of balance.

Two final points: 1) There is no evidence to date that a GPL product can’t implement a standard with IP restrictions. There are many, many RAND standards implemented in GPL-licensed products today. 2) I need to write more about this, but I am all for the idea of “open standards,” but to me it is all about process and participation. I like Rick’s points about balance on committees, and am actively working on methods with my team to figure out how we can facilitate brining more voices to the table in a neutral context.

Thanks for the thoughtful posts, Rick. I really enjoyed reading them.