Re: [odf-adoption] /. on open-format legislation in US states

On 6/5/07, marbux <marbux@gmail.com> wrote:

On 6/4/07, Louis Suarez-Potts <luispo@gmail.com > wrote:
I thought Marino's response was good. And doubtless my suggestion
should go to the Alliance:

let's form a PAC for open standards.

(PAC: Political Action Committee, US political groups usually with a
single objective.)

I think the purpose needs refinement. If you read the ComputerWorld article, it's clear that legislators thought they were being asked to legislate on technical issues. "Open standards" is too vacuous. E.g., Office Open XML is "Open." And it gets more and more technical from there on in. E.g., one of my criticisms of the defeated legislation is that it could be read to exclude both ODF and OOXML or to include both.

Drafting a bill that focuses on the desired effect on competition within the government software procurement process rather than on the means to achieve it would serve up legislation far more difficult for Microsoft to swat down. There is a paper by economist Rihab Gosh that recommends that approach, using OpenDocument as the example. I've posted a link to it along with a couple of other relevant links and excerpts at <>. Here is the key excerpt:

"A definition of open standards based on the positive effect of the standard on competition is more likely to produce procurement processes "conducive to competitiveness". The spirit and the letter of the law is seemingly ignored by public bodies issuing calls for tender that require suppliers to use proprietary standards. The letter, but not the spirit of the law will be ignored by public tenders specifying named open standards. And tenders requiring open standards, not named but clearly defined based on their economic effect on competition, will follow both the letter and the spirit of such laws.
"We summarise the above guidelines in the following four recommendations:

"1. open standards should be defined in terms of a desired economic effect: supporting full competition in the market for suppliers of a technology and related products and services, even when a natural monopoly arises in the technology itself.

"2. open standards for software markets should be defined in order to be compatible with FLOSS licenses, to achieve this economic effect.

"3. compatibility with proprietary technologies should be explicitly excluded from public procurement criteria and replaced by interoperability with products from multiple vendors;

"4. open standards should be mandatory for eGovernment services and preferred for all other public procurement of software and software services."
The defeated legislation attempted to define "open standard" at a technical and highly abstracted level rather than dealing directly with the desired effect on competition. The result was much like the different blind wise men trying to describe an elephant by feeling different parts of the elephant's anatomy and coming to different conclusions. The legislation described a technical morass rather than a clear-cut policy that could be summed up in one sentence.

E.g., "no more vendor lock-in file formats" is a much more direct policy statement than attempting to describe openness without reference to the desired competitive outcome. It's also much more difficult for Microsoft to oppose without smoke and mirrors.

It also focuses the debate where it needs to go, e.g., waste of taxpayer dollars on monopoly-priced software over the longer haul. That puts the switching costs squarely on Microsoft's refusal to provide full support for ODF and to participate in ODF's development. That is to say, the right issue in my view is whether Microsoft's formats are anti-competitive and have resulted in the states paying too much for software. Microsoft can't win that debate on the merits.

And I would couple such legislation with a drive for disclosure of what the various states have paid Microsoft in relevant licensing fees along with a call for the states' attorneys general to file antitrust/fair competition actions to recover the overcharges and the costs of switching. They can do that for both the state's own damages and at least in most states also for state consumers' damages. State AG's often designate a private law firm or consortium of firms to pursue such cases, bankrolling only the out-of-pocket litigation expenses, with the private firms taking a piece of the action on the damages award.

E.g., IBM and Sun are pushing the relevant antitrust issues in Europe through ECIS; why not through the state attorneys general?

I'd also suggest researching whether legislation is even needed in a given state. See e.g., this blog post, <http://advice.cio.com/bcrowell/government_focus_for_an_os_desktop?page=0%2C0 >. It may well be that in most if not all states, there is no need for legislation, only a need for enforcement of existing procurement law and for state legal action to recover overcharges and switching costs from Microsoft because of its historically anti-competitive file formats.

Why fight battles that need not be fought?

Best regards,

Marbux

Legislation bluntly intended to end vendor lock-in is much more a clear-cut policy issue than legislation requiring Open Standards.

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