[odf-discuss] procedure at ISO Ballot Resolution Meeting

Tue Sep 11 13:30:07 EDT 2007

On 9/10/07, Chris Puttick <cputtick at gmail.com> wrote:
>
> Alex Brown (whose blog it is) really is the convenor of DIS29500 BRM.
> On the otherhand it is a very neutral position, so his best line of
> positive influence is to ensure all comments are appropriately dealt
> with.

I have mixed impressions of Brown. On the one hand, he instigated and led
the BSI group that developed the comments for BSI and I looked at the final
Great Britain comments last night.  They are very high quality, voluminous,
and very tough on MOOXML, with a hard-core stance of "must replace giant
chunks of MOOXML with corresponding ODF sections." I.e., harmonization.
Moreover, there are many comments with proposed changes that almost
certainly Microsoft could not implement without rebuilding at least MS Word
from the ground up (I'm less familiar with the other Office major apps.)

E.g., several BSI comments call for changes to match features with ODF that
impact page breaks in Word. Page breaks in Word have been exceedingly
fragile and buggy since Word 1.0. It's clear that Microsoft has been unable
to stabilize them, most likely because of architectural screwups in in
Word's life and the mountains of spaghetti code atop the features that
impact page breaks that are likewise extremely buggy, e.g., footnotes and
other subdocuments, tables that continue on a subsequent page, etc. See e.g.,
detailed study of Word footnote and endnote bug reports in the Microsoft
Knowledge Base here that include data loss bugs as well as formatting bugs.
  <http://www.llrx.com/features/word.htm>, from which one can also infer
that at least much of Word's page layout engine is still 16-bit code.
(Compare bug reports with version numbers of Word.)  My impression is that
page breaks are so brittle in Word that several of the changes BSI has
requested simply can not be implemented.

Another BSI comment calls for WordprocessingML tables to be expanded from 67
columns to 4008 (IIRC) to match ODF for interop purposes. Word tables have
been largely off-limits for major changes for years, I suspect in no small
part because of the page break issues.

But back to Brown. As I understand the situation, it was his decision in the
BSI working group to: [i] limit participation and input to invited
participants only (no way provided for others to submit comments); and [ii]
decreed that all non-technical comments raised at the contradiction stage
could not be considered because of a JTC 1 ruling (that apparently never
existed) holding that that comments raised in support of contradictions had
been rejected and therefore were not eligible for consideration in the
post-contradiction phases.

In the his blog article under discussion, he announces that patent
disclosure and IPR issues are off the table, as though standards bodies
including JTC 1 do not routinely revise their work to work around patents.
That position is also curiously at odds with the BSI position in its
comments that all "proprietary" components of Ecma 376 must be stripped and
replaced with either ODF-equivalents or where ODF has no equivalent other
ISO or W3C standards. I.e., if patents are off-topic, why did Brown allow
the BSI group to develop and submit comments that called for removal of
proprietary technology? Reading between the lines a bit, he seems to believe
that Ecma's letter saying that neither it nor any Ecma TC member knows of
any patents involved that are not licensable under RAND terms somehow trumps
a comment (I've forgotten which NB submitted it but ran across it in
skimming the comments last night) that asks for clarification whether the
Microsoft Open Specification Promise is intended as the RAND terms
mentioned, arguing (correctly and never rebutted by Microsoft since we
briefed that issue in the EOOXML Objections document) that the OSP grants no
rights to implement any Ecma 376 optional features.

Brown's justification is that only technical issues can be resolved during
the Ballot Resolution phase. But that is so plainly wrong both under the
Agreement on Technical Barriers to Trade and JTC 1 Directives that I'm left
scratching my head. Moreover, at the time Ecma submitted Ecma 376 to ISO,
the Directives version then in effect straightforwardly required that all
relevant patents be disclosed. Ecma violated the Directives then in effect
when it submitted only a letter saying that patented technology was
available for licensing under RAND terms. It's about on a par with the JTC 1
secretariat deciding to allow Ecma 376 to stay on the fast track despite the
contradictions, apparently relying on a new draft Directive that had not yet
even been adopted. Under the Directives then in effect, Microsoft lost the
contradiction battle and Ecma 376 was required to be rejected, and was
required to be sent back to Ecma to decide whether it wished to resubmit it
on a slow track. But none of the NBs that raised contradictions, BSI
included, objected to the procedural violation despite it being an
appealable decision to the ISO/IEC Secretariats under the JTC 1 Directives.

It's this kind of rampant flouting of the established procedures, contrasted
with the generally fine work BSI actually did under Brown's leadership, that
leaves me scratching my head. I will note, hwoeer, that BSI did not raise
any of the blatant anti-competitive aspects of Ecma 376 that are mandatory
NB considerations under the Agreement on Technical Barriers to Trade and
World Trade Organization Apellate Body decisions interpreting that treaty.
But in sum, I still have no good picture of where the man is coming from and
going toward.

Shifting the topic somewhat -- and admitting to a lawyer's instinctive bias
against procedural violations, which require objections and appeals if
necessary to teach the judge a lesson about how much judicial misconduct you
are willing to tolerate -- I think the process issues are  key to stopping
Microsoft at ISO, particularly the stuffing of the NB and ISO ballot boxes
issue. On the latter, if Microsoft is not badly burned for doing that, I
think it almost inevitable that Redmond will simply escalate that tactic to
win the Ballot Resolution Meeting, particularly given that Microsoft is
unable to implement many of the changes raised in comments and is
undoubtedly unwilling to implement many more because it would break its
monopoly in the office suite market. I think it's going to be a purely
political battle from here on in. The only way I see for  Microsoft to win
now is through political pressure to force NBs to withdraw their comments
and change their votes from No with comments to Yes without comments at the
Ballot Resolution meeting. So I see as the potentially decisive issue the
through publicizing of the ballot box stuffing issue to at least lessen the
Microsoft pressure on the NBs.

Except for the September 17 wild card coming from the Court of First
Instance.

Decision

The following principles and procedures should be observed, when
international standards, guides and recommendations (as mentioned under
Articles 2, 5 and Annex 3 of the TBT Agreement for the preparation of
mandatory technical regulations, conformity assessment procedures and
voluntary standards) are elaborated, to ensure transparency, openness,
impartiality and consensus, effectiveness and relevance, coherence, and to
address the concerns of developing countries.

...

10. In order to serve the interests of the WTO membership in facilitating
international trade and preventing unnecessary trade barriers, international
standards need to be relevant and to effectively respond to regulatory and
market needs, as well as scientific and technological developments in
various countries. They should not distort the global market, have adverse
effects on fair competition, or stifle innovation and technological
development. ...

11. Accordingly, it is important that international standardizing bodies:
Take account of relevant regulatory or market needs, as feasible and
appropriate, as well as scientific and technological developments in the
elaboration of standards;

Committee on Technical Barriers to Trade
World Trade Organization
Decisions and Recommendations Adopted by the Committee Since 1 January 1995,
<http://docsonline.wto.org/imrd/directdoc.asp?DDFDocuments/t/G/TBT/1R8.doc>
(May 23, 2002)

(The above quotation is only representative of a large mass of international
law on the subject selected because of its brevity.) Please notice the
emphasis on "regulatory needs" and the subsequent clarifying reference to
market distortion and effects on competition. The regulatory needs referred
to are found not only in the treaty but also in antitrust law, the origin of
the relevant treaty provision.  My informed hunch is that if DG Competition
is upheld on the portions of its 2004 order dealing with Microsoft's refusal
to disclose the Windows Server communications protocols, it will briskly
file formal charges against Microsoft in regard to the antitrust vioations
alleged regarding the undermining of the existing international standard
with Ecma 376 and the refusal to disclose the Office binary formats'
specifications.

In the meantime, Microsoft has finally disclosed the binary specs for Office
2007, but Office 2007 has a tiny share of the market thus far. The real
battle over the binary specs will, I suspect, be over disclosure of the
earlier version specs. And both the disclosure issue and the undermining of
ODF using Ecma 376 are pinned squarely to the 2004 DG Competition order
portions dealing with the refusal to disclose the Windows Server
communications protocols. The order not only required their disclosure, but
also commanded Microsoft not to engage in any similar misconduct in the
future. And the holding on disclosure was inextricably intertwined with
analysis reading on the undermining of standards.

Microsoft's principle grounds for reversal of that portion of the 2004 Order
is software patents allegedly reading on its communications protocols.
Microsoft did not bring such patents into evidence during the DG Competition
proceedings, but only claimed that it had one and intended to apply for
several more in the next few months. IIRC, by the time the Court of First
Instance denied Microsoft's request for a stay of the 2004 Order, it claimed
to have 5 or 6 relevant patents but still did not introduce them into
evidence, The Court of First Instance ruled that Microsoft would be required
to prove that it held such patents on the merits of its appeal, and that
they were valid as I recall. The ruling seemed odd to me because in the U.S.,
if you don't get that kind of evidence into the record at the administrative
level,  it would take a pretty weird situation to mjake them admissible on
appeal. In the U.S., judicial review of administrative decisions is
ordinarily limited to the record that was before the administrative agency
at the time of decision, except in exceedingly narrow circumstances that
would not apply in this situation.

The short version here is that the Court of First Instance may be ruling on
the validity of some Microsoft patents and conceivably on the patentability
of software generally. So there are some juicy and relevant issues to be
addressed on September 17.

If DG Competition lays public charges against Microsoft in regard to Ecma
376 and the binary formats, then the international law on regulatory
requirements such as quoted above are squarely in  play at ISO as well.
Several NBs have raised comments calling for inclusion of the binary specs
in Ecma 376 because compatibility with them is part of the Ecma 376 spec.
Should DG Competition act, there would then be compelling arguments that
further processing of Ecma 376 at ISO must await the DG Competition
disposition of the ECIS complaint, which is a regulatory proceeding.

So mark your calendars. September 17, 9:30 a.m. Brussels time, UTC+2.

Best regards,

BUCK "MARBUX" MARTIN
  Director of Legal Affairs
  OpenDocument Foundation
  Contact:
<http://www.opendocumentfoundation.us/contact.htm>
Universal Interop Now!
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.opendocumentfellowship.com/pipermail/odf-discuss/attachments/20070911/00ef7537/attachment-0001.htm