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This rather long essay is in one sense a reply to the open letter recently released by Patrick Durusau, in which he suggested that it was time to acknowledge progress made and adopt OOXML. But it is also an explanation of why I have for the first time in my career become personally involved in supporting a standard. The reason is that I believe that we are at a watershed in public standards policy, and that there is much more at stake than ODF and OOXML. In this essay, I explain why I think we need to recognize the existence and vital importance of what I call “Civil ICT Standards,” and why more than simple technical compromises are needed to create them in order to protect our “Civil ICT Rights.”

As I write this entry, hundreds of people from around the world are converging on Geneva, Switzerland. 120 will meet behind closed doors to hold the final collaborative discussions that will determine whether OOXML will become an ISO/EC standard. When their work is complete, not everyone will be pleased with the changes agreed upon, but all will acknowledge that the specification that eventually emerges will be much improved from the version that was originally submitted to Ecma two years ago.

Most will also agree that Microsoft’s customers and independent software vendors (ISVs) will be far better off with OOXML publicly available than they would if Microsoft had not offered the specification up at all.

To reach this final draft, hundreds of standards professionals in many nations have spent a great deal of time and effort, including many at Microsoft. And while Microsoft, working with Ecma, has not agreed to all of the changes that have been requested, my impression is that it has agreed to many that will, if implemented by Microsoft, require a substantial amount of work and technical compromise on its part.

Leaving aside whether Microsoft has made sufficient concessions, it has also made substantial accommodations on the intellectual property rights (IPR) front along the way as well. Today, it makes important IPR available under covenants not to sue that are more broadly available, and far less burdensome than the licenses that it required two years ago.

When I first began to write about ODF in September of 2005, none of these developments had been anticipated, much less promised by Microsoft. And while the interoperability promises made by Microsoft as recently as last week still fall short of those that would be required to meet the needs of (for example) open source software developers, it is only fair to acknowledge that there are other proprietary software vendors that have not promised as much, and that the vast majority of information and communications technology (ICT) standards are still adopted under IPR policies that are primarily based upon RAND declarations.

With so many accommodations by a commercial vendor that has no incentive (antitrust regulators aside) to make any concessions at all under the cold realities of the business world, it is not surprising that a number of commentators in the last few weeks have focused on the distance that Microsoft has already traveled, rather than the distance left to go. Most notably, Patrick Durusau, the ODF Project Editor in both ISO/IEC JTC1 as well as OASIS, released an open letter calling for passage of OOXML, calling the progress of the last two years, warts and all, as “Poster Child of Open Standards Development.” He closed that letter with the following:

The OpenXML project has made a large amount of progress in terms of the openness of its project development. Objections that do not recognize that are focusing on what they want to see and not what is actually happening with OpenXML.

Is it true, then, that those who are still uncomfortable with the adoption of OOXML are either vendor-competitors with obvious commercial axes to grind, or unrealistic zealots that won’t be satisfied until Microsoft’s dominance is destroyed?

The answer, I think, is no. And here is why I believe that this is the case.

Read more here

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• Andy Updegrove

  

  Andy Updegrove is a partner and founder of Gesmer Updegrove LLP, a Boston-based technology law firm, and has represented and helped structure more than 80 worldwide standard setting, open source, promotional and advocacy consortia over the past 20 years. He has also represented hundreds of both emerging as well as established technology companies, and is the founder and editor of both the popular website http://www.consortiuminfo.org and the widely-read Standards Blog

• Karen Copenhaver

  

  Karen Copenhaver is a partner in Choate, Hall & Stewart LLP ‘s Business & Technology practice focusing on technology transfer and licensing of intellectual property with a specific emphasis on open source business models. Most recently, Copenhaver was executive vice president and general counsel at Black Duck Software, Inc.