A member of a national standard committee asked:
there's another question I need to be answered, an easy one: One of MS's arguments is that "the industry (except IBM) supports the standard". They also mention names to backup the claim, such as Novell and Apple. Concerning Novell, could you point me to evidence, such as patent threats, that Novell is a Microsoft puppet? In addition, Pieter Hintjens had once said that certain kinds of agreements between companies are forbidden, unless the agreement contains something about patents, in which case, in the rest of the agreement, you can agree anything at all.
The Open XML support of "the industry" argument is weak and does not belong into technical discussions at this stage. First of all we need better clarification what is meant when you speak of a "puppet". According to Wikipedia1:
A puppet is a representational object manipulated by a puppeteer. It is usually but not always a depiction of a human character and is used in (a) play or a presentation. The puppet undergoes a process of transformation through being animated, and is normally manipulated by one, or sometimes more than one, puppeteer. Some puppets can be moved electronically.
Let us apply that definition.
Puppet candidate inspection
I lost the reference to the Microsoft-Novell files myself and it is a pity that they were not discussed more in context of our open xml debate. We know small parts of the contractual agreements made only because Novell had to file them with the SEC. The Novell files comprise e.g. the First amended Business Collaboration Agreement and Patent agreement. In our context I'd note this filing with the SEC that "explains" their agreement with Microsoft. Scroll down to section 5.3, the OpenXML stuff, redacted as:
5.3 Office Open XML.
(a) xxx will exercise its xxx to xxx by no later than xxx that (i) the xxx OpenOffice (version 2 or later) xxx does or will xxx Office Open XML format (“Open XML”), and (ii) it will make a xxx xxx If xxx does not xxx it will xxx within the same time frame that xxx in the xxx on axxx to xxx Open XML. xxx will provide its xxx toxxx at least xxx in advance of xxx The xxx will be xxx not to be xxx will provide xxx in the xxx will xxx of such xxx the Term, including through xxx in the xxx is defined in the Business Collaboration Agreement.
So, Novells Business Collaboration Agreement requires that they support OOXML.
(b) Novell Product Support for Office Open XML. No later than xxx after the Translator Project makes generally available a version of its translator for word processing, and thereafter throughout the Term, Novell will (unless commercially impracticable) make prominently available xxx for word processing documents. The xxx can be made prominently available to a user of xxx via an easily available download or by distributing the .xxx with each copy of a xxx . No later than xxx after the Translator Project releases a final version of its translator for spreadsheets, Novell will use commercially reasonable efforts to include in the xxx support for spreadsheet documents. No later than xxx after the Translator Project releases a final version of its translator for presentations, Novell will use commercially reasonable efforts to include in the xxx support for presentation documents. Once released, Novell will continue to make the xxx commercially available for the Term. If, during the Term, the Translator Project releases an updated version of its translator to reflect a new version of the relevant ODF or Open XML specification, then no later than xxx following such release, Novell will use commercially reasonable efforts to make prominently available a corresponding update to xxx .
The xxx are stars in the original document and stands for secret parts. Or in SEC terms "Portion for which confidential treatment requested". The most interesting part with the ECMA-flavour openness is part e) of the section.
(e) xxx.
Hu? Fill in what you want. Reasonable support in ECMA, blogging of de Icaza, … We dont know. But the contractual terms make obvious to everyone that there are no independent business decisions involved and no one supports Open XML because "we at Novell" found it great. There are many other parties now that "support Open XML" and sign unpublished Interop Agreements. Let us speculate not one of them makes the support decisions independently, without a big cheque. The one thing we know for sure is that nothing is provided without a detailed specification what the other party needs to provide including public communication. That is a classic "electronic hierarchy" instead of a free market. It is all about freedom of business which includes the right of contractual slavery. Detailed contracts for engineering the industry support a party seeks. You need to decide for yourself if that qualifies as puppetery.
Keep in mind that the documents from above are from 2006. In 2007 another contract between Novell and Microsoft was signed.
Standards Monopoly
Alberto clarified the second part of the question:
What actually Pieter was saying (or at least, what I've heard from some lawyers) is that anytime you have an anti-monopoly cause against you, you just need to show up a patent and what before was a monopoly practice, it becomes automatically in a property and so safe and competitive practice.
It is not that easy. We need to keep emphasis on the the WTO Barriers to Trade Agreement. Standards can become obstacles to trade. And they can help trade. Therefore a basic question arises: how to ensure that standards are not arbitrary or an excuse for protectionism. The WTO Technical Barriers to Trade Agreement (TBT) tries to ensure that regulations, standards, testing and certification procedures do not create unnecessary obstacles. Article 2 provides:
2.2 Members shall ensure that technical regulations are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade.
Annex 3 is implemented by all standard organizations:
E. The standardizing body shall ensure that standards are not prepared, adopted or applied with a view to, or with the effect of, creating unnecessary obstacles to international trade.
F. Where international standards exist or their completion is imminent, the standardizing body shall use them, or the relevant parts of them, as a basis for the standards it develops, except where such international standards or relevant parts would be ineffective or inappropriate, for instance, because of … or fundamental technological problems.
The French proposal would ensure compliance with that agreement. It is clear that ECMA did not stick to the good practice from the WTO agreement. They rubberstamped a proprietary format and fast-tracked it to ISO. It is clear that a process that is compromised through partnership agreements cannot guarantee good results. There is no right to "hack" the international standard system. If the process failed on the grounds of the international standard institutions through ruthless practices it will remains possible to go political and seek solutions there.
The international standard system provides safeguards against national bias and protectionism but did not build sufficient defense against vendor capture. We know the recent furious remarks of Martin Bryan as leaving chair:
The disparity of rules for PAS, Fast-Track and ISO committee generated standards is fast making ISO a laughing stock in IT circles. The days of open standards development are fast disappearing. Instead we are getting “standardization by corporation”, something I have been fighting against for the 20 years
