[odf-discuss] OOXML: The next step

[marbux]

On Wed, Apr 9, 2008 at 4:40 PM,  <robert_weir at us.ibm.com> wrote:
>
> Paul,
>
> Your views are idiosyncratic at best.  By your argument, XML, XPath, XHTML,
> SMTP, HTTP and  C++, plus most other standards that comprises the modern IT
> infrastructure all are in violation of international law and all break
> interoperability, since they all allow proprietary extensions.
>
> Is that what you are asserting?


I have not studied those particular standards' conformance clauses,
but what I am asserting (and accurately so ) is that an international
standard must specify a product that is uniform, in mandatory terms.
There is no legal barrier to embracing and extending standards (with a
plausible exception where antitrust issues may come into play because
of an actor's market power).

But the pivotal issues are conformance and mandatory requirements for
all product characteristics. A standard may not lawfully confer
conformant status on a product whose characteristics are not fully
specified in the standard in mandatory terms. If it does, then it is a
standard in name only and is susceptible to legal challenge.

Lawful standards do not grant conformant status to products that
differ from the mandatory requirements. And in the words of the WTO
Appellate Body, an international standard's specification of mandatory
product characteristics must include "any objectively definable
'features', 'qualities', 'attributes', or other 'distinguishing mark'
of a product [and] not only features and qualities intrinsic to the
product itself, but also related "characteristics", such as the means
of identification, the presentation and the appearance of a product."

If in truth I be idiosyncratic, then so is the WTO Appellate Body and
the very large body of law in regard to standards. Allow me to presume
for the moment that your description of the standards you mention is
accurate. I would in turn ask whether those standards allow embraced
and extended versions to be classified as conformant with the same
standard. If they do, then they are not lawful standards.

Standards are about ending feature wars, not about enabling them. The
notion is that lawful standards are pro-competitive in that
manufacturers can focus their R&D money on the means of production
rather than plowing the money into feature races, resulting in a net
benefit to consumers from lower prices. In other words, standards are
about the substitutability of products made by different
manufacturers. If a standard allows conformant products to be
different, then the standard is legally defective.

As I've discussed before, the reason ODF and OOXML are not lawful
standards is because they do not specify all characteristics of a
uniform product in mandatory terms. This is not only a problem with
extensions; it is also an issue of optional features and ambiguities.

If conformant ODF files are not substitutable, i.e., are not
interchangeable among all conforming implementations, then ODF is
legally defective and is a standard in name only. It really is that
simple.

JTC 1 Directives are not in conflict with the WTO Appellate Body's
decision. They require on page 13 that interoperability is a "Common
Strategic Characteristic" that must be reflected in all JTC 1
standards absent consent of the Secretaries-General of ISO and IEC. At
page 145, the Directives state:

"Standards designed to facilitate interoperability need to specify
clearly and unambiguously the conformity requirements that are
essential to achieve the interoperability. Complexity and the number
of options should be kept to a minimum and the implementability of the
standards should be demonstrable. Verification of conformity to those
standards should then give a high degree of confidence in the
interoperability of IT systems using those standards."

The fact that both ODF and OOXML (or any other international standard)
managed to be adopted as international standards without compliance
with the Directives' interoperability requirements and the
requirements of the Agreement on Technical Barriers to Trade creates
no legal defense. You argue as though your posited fact fact that
other standards do not adhere to the law creates some sort of
precedent. It is a faulty argument.  Would you expect to succeed in
such an argument if your client was charged with murder and wanted you
to argue that because other people had committed murder and not been
prosecuted, he cannot be prosecuted?

The data processing industry is still fairly immature as these things
go. It's not surprising that, e.g., Microsoft leaders did not
comprehend that they were violating antitrust laws left and right. The
industry is still at the swashbuckle stage. It will take many more
years for the industry as a whole to comprehend and accept that they
too are bound by the laws that govern everyone else. I suspect that
you are still so entrenched in the feature war mind set that you
simply cannot comprehend that the game has different rules in the
standards sector. If I am correct in that suspicion, you are not the
only one.

The IT industry is still pretty much operating in the standards sector
as though the only rule is what people can get away with. IBM now
wants to spark a standards reform movement. I respectfully suggest
that the place for IBM to begin is to determine the existing governing
law and to seek its enforcement in the standards bodies within which
IBM has a voice. It may be that those laws need refinement.  But the
choice is stark: Either there are rules to be followed or there is
lawlessness and anything goes. Which kind of world do you want to work
in?

The framework established by the Agreement on Technical Barriers to
Trade and the Agreement on Government Procurement really is not all
that bad. The major problem is that it has not been implemented very
well in the IT sector. JTC 1 is a circus. It has rules that reflect
international law but they are not being obeyed. Embrace those rules,
and you have the moral high ground to complain and seek enforcement
when others disobey them. Ignore those rules and you forfeit the moral
high ground and the ability to have the rules enforced. You put
yourself in the position of the pot calling the kettle black.

It's a lousy position to be in.

Best regards,

Paul