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There was a time, not that long ago, when most standards were set in a largely collegial atmosphere by career professionals who met in face to face meetings over a period of years. Along the way, they came to know each other as individuals, and established relationships that helped the process move forward and allowed for productive give and take.

While this process was not without its back scratching and game playing, at least the impact on interests other than those directly involved tended to be limited. After all, if performance standards for light bulbs had settled out at 45, 65 and 95 watts rather than 40, 60 and 90, no end user’s ox would have been gored on the desktop, when it came to lighting.

During these more collaborative times, those that defined the rules for organizations such as ISO, IEC and ANSI (the American National standards Institute) tended not to favor simple majority voting to determine outcomes. Instead, they put a high value on consensus, in order to lessen the chance that minority interests would be oppressed, or important technical matters ignored. Other rules required that compliant processes provide a means whereby specific technical decisions could be appealed, so that the consensus process could not be abused.

The rules that included these principles were fairly high level, and often less than legally precise. For the most part, this worked well enough over time, and allowed an already necessarily slow, surface mail-based process (in pre-Internet days) to move a bit faster than it otherwise would have if more detailed process protections were in place.

In much of the standards development world, which encompasses every area of products, services and activity, this is still largely the way the standards systems operates. But sadly, that is no longer the case where information and communications technology (ICT) standards are created.

This is now: What we have just witnessed with the OOXML adoption process is the catastrophic failure of a system built for one purpose that has been subjected to forces that it was not designed to withstand. Those forces included intense pressure from vendors, and even political pressure. The tactics utilized appear to have included taking advantage of rules crafted to foster openness, placing or outmaneuvering committee chairs, and recruiting employers to pressure committee members to vote their employers’ interests rather than their own technical judgment.

This is hardly the first time that such tactics have been employed in standard setting. But it may be the most global, and is certainly the most public example in recent memory. Given this publicity, there is a danger that such behavior could become viewed as acceptable by those new to the process. And even old hands may wonder whether they need to adopt similar tactics on a defensive basis in the future, resulting in an increasingly sordid “race to the bottom” of the abusive practices barrel.

For these reasons, the OOXML process just ended represents a watershed event that needs to be addressed promptly and systemically, in order to lessen the chances of repeat performances, and to deal with them effectively if they nevertheless occur.

In future entries I’ll air my ideas about the specific reforms that will be needed. First, however, I think we need to agree on what just happened, and what the problems are. Only when that has been accomplished can we intelligently choose the path that to follow in designing and instituting the reforms that are needed.

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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.