Sony BMG may settle the XCP/MediaMax case [the EFF case]

According to several reports including this from Groklaw, Sony and the plaintiffs had reached a settlement proposal on the Class Action suite against it from the EFF. In it, Sony practically bowed to all the demands of EFF. The demands from EFF, as far as I can tell, is reasonable.

The most important aspect is that Sony agree to provide a “clean, non-content protected CD identical in music content to ech XCP CD exchanged”. Yes, you read rightly, Sony agree to provide non-DRM CD. Why is Sony prepared to drop the claim that it need DRM to protect the copyright content without even putting up a fight? If DRM was so crucial to protect the content, Sony would not had compromised so easily. This is a convincing proof that DRM is not really central to the protection of copyright content, as least not when it interfered with the rightful consumption of the content.

Sony also agrees not to distribute CDs with the current XCP and MediaMax for at least two years. It will affect the share prices of First4Internet and SunnComm (manufacturer of XCP and MediaMax). It will also devalue SunnComm’s current effort to spin off MediaMax. Other than that, not much worth talking about. As far as Sony is concern, XCP and MediaMax software, as it currently stand, is a no-no for future CDs so it would not affect it much. The damage to XCP and MediaMax brand name are already done. It would not surprise me if the two companies ditch the names and go through a rebranding exercise soon.

One last notable effect of this settlement is Sony’s agreement to go back to standard software installation practices, i.e., providing uninstaller and not to install anything when user says no. It is also forced to withdraw those nasty little End User License Agreement (EULA) clauses that are unfair.

Overall, a good settlement. Sony have to offer affected customers some sweetstake and bear the cost of distribution of these sweetstake as punishment. EFF succeeded in pulling Sony’s business practice back to the straight and narrow. Most importantly, the settlement establish a baseline on what acceptable practice for content distribution should behave.

EU should not exercise the option break up Microsoft without thinking long and hard

With reference to this International Herald Tribune article, EU has the rights to order the break up of Microsoft if it is satisfied that Microsoft is not amending it ways with respect to its illegal monopolistic behaviour.

While I agree that the ability to break up companies must be an antitrust arsenal available to regulators, I do not think this option should be exercised without extreme caution. It is a “death penalty” for company. If imposed, I believe the burden of justifying this move lies squarely on the shoulder of EU and they will have to show that no other possible remedies is possible or effective.

Simply because a company is exploring all avenues legally available to it to fight an antitrust decision is not enough reason to break it up. Neither is its failure to comply with antitrust decision. Taken together it may form the basis for exploring break up, but still, in my opinion, insufficient basis to order a breakup. Lets not forget the overwhelming aim of antitrust legislation is to remedy the market situation. Properly punishing the perpetrator is a good deterrence, it is, and should be, the secondary aim.

One situation I can think of ordering a break up is that the EU can prove that the company is in the way of remedying the situation. Even then, before breaking up the company, it should explore other possibilities, including penalizing individuals in the management. This can be imposing a personal fine on the individuals, and perhaps throwing some of them in jail. It is not unheard of where managers were drag to the criminal courts for their business decisions (think Enron), why not for violation of antitrust?

There is one recent precedence on breaking up a company as a result of antitrust proceeding, i.e., the break up of AT&T into Baby Bells in the United States that is of the same scale we are talking here. Does it enhance competition in the (United States) market place? Yes. However, in terms of advancing telecommunication technology, the lost of a big giant with pockets deep enough the finance the development and fulfillment of a vision, is deeply felt. Since the break up, it seems that American market is trailing the European and now the Asian in terms of telecommunication advances. A notable example is the use of mobile phones.

Traslate this to Microsoft requires the EU to answer this question: are they sacrificing other benefits of having a big giant like Microsoft when ordering a break up? Yes, there will be no big lost in advances in technology by Microsoft is by far the biggest copycat. It is still the thousand pound gorilla that other companies have to innovate against to stay in the market. Perhaps more importantly, it is still the symbol that one can strike it big in the industry.

The take home message: Do not underestimate the value of keeping the gorilla known as Microsoft intact. Like a gorilla, we need to clip its nails from time to time and punish it if it misbehave. Killing the gorilla may not be a good idea, even if it gives a lot of grieve.

Massachusetts lost a great CIO

It is confirmed, Massachusett’s Peter Quinn is quiting on Jan 12. A sad day for Massachusetts State. He did not jump before he was pushed. He says he is quiting to protect Massachusetts’s move to open standard. It is understandable because lately the spotlight had been on him. His every move is being scrutinized and every opportunity to discredit him by smearing him unfairly, like the unfounded and biased article in the Boston Globe accused him of. (See rebuttal from Groklaw — “Peter Quinn Exonerated” and “Boston Globe Throws Mud at Peter Quinn — Mud Lands on Boston Globe”— and Andy Updegrove — “Quinn Cleared in Travel Investigation (But Will the [Boston] Globe be Cleared?)” and “Romney administration reviewing trips made by technology chief”. I am not going to link to the original Boston Globe article but you can find it from the links above)

This is a sad day for everyone in IT and Management. It shows that making bold and unconventional decision can be extremely damaging to one’s professional and private life. To say that Mr Quinn failed to note that his decision will be closely scrutinized will be naive on the part of the commenter. Mr Quinn is not a fresh man out of university, he is an experienced IT Professional. He knows he is playing a high stake game, that his decision will generate a tsunami and he will be under extreme pressure. He also knows that, like every one who was not born yesterday, there are going to be situations in his life where others can exploit to throw mud at him. To his charing, the pressure is more than he is prepared to stomach.

I do not want this blog entry to be an eulogy for Mr Quinn. Rather, I want to take this opportunity to celebrate his success and boldness, especially in deciding for the OpenDocumentFormat decision and defending that decision. Bold, because this decision of his go against what everyone expected and did not “toe the line”. Success, because he is the one that put OpenDocumentFormat from back-burner into the spotlight. Success, because his decision make sense and the action of his detractors demonstrated this: They took the contemptable route of focusing on his day-to-day activity because they cannot find flaws in his decision. Unfortunately, he fall victim to this success.

Like him or hate him, you must agree he started all these intense interest about OpenDocumentFormat and Office XML Schema. He turned it from a largely academic discussion to a discussion with real-life implication.

With Mr Quinn departure, we have one less Open Document Format supporter in Massachusett government and a heavy weight one indeed. I am sure those responsible for pushing him over the edge will be openning one more bottle of champaige this festive season. Rather than being ashamed of their action, they probably took the mud on their face as “trophies” or acceptable damage.

Mr Quinn has to do whatever he think is best for him and his family. I wish him every success. While I am sad to see him go, it does open an opportunity for other governments/business to hire a very competent person. May be, just may be, we will see him pushing ahead with his vision in other governments.

Bias in ECMA Committee for Office XML

If one need to see how potentially biased the ECMA committee can be, just have a look at the appointment of co-Chairs: Both are from Microsoft. Surely for the same of appearing impartial we cannot have co-chairs from the same company in an independent committee. Or do I have to send the whole committee back to school?

Let’s also have a look at the picture in the article and consider the ackwardness of the ceremony, assuming the standard etiquette is followed: Jean Paoli of Microsoft hands over the initial draft to ECMA Secretary General which then hands over the draft to the chair of the committee, the same said Jean Paoli. In other words, the draft do a merry-go-round. Some might says it is “proof” that ECMA is rubberstamping the standard proposed by Microsoft.

I am not sure how a committee is to look like, except that I know for sure it has to be someone high up and sufficiently detached from the company’s working team on the topic of interest. High up, to ensure any decision in the committee will be followed through at the individual company’s; Sufficiently detached to ensure that discussion will not degenerate into my implementation vs yours, as it frequently happen with people too closely involved in the process. They need to be also sufficiently “attached” to understand the technical dynamics and practical implication of the standard. Jean Paoli (of Microsoft) and Adam Farquhar (of British Library) are too detached from the document creation/preservation process. In coperate hierarchy terms, they are also too far up the chain. The other co-chair, Isabelle Valet-Harper, Sr. Program Manager for Standards Strategy and Microsoft’s primary representative to Ecma, no pun intended, does not know a thing about documents. Moreover, why is a company strategist made a co-chair of a “technical committee”?

The wrong leaders were elected!

British Library and Office XML

British Library is a leading UK public body. In the UK, public body are very sensitive about the appearance of impartiality. Therefore, it is, for me, very strange that Adam Farquhar, head of e-Architecture, allow himself to be used to indicate British Library is strongly supporting Micirosoft Office XML standardization effort in ECMA, as photographed in the article and on its initial press release announcing the effort.

Now, the most important thing first. Mr Farquhar is engaging in anything wrong at all. In fact, ECMA is “supposed” to be a neutral body. Second, he is the Vice Chair of the ECMA committee in charge with the standardization effort, hence he should be in any picture that is about the committee’s work. Moreover, his involvement in the committee can bring the British Library’s expertise in managing large collections of books to the committee. Nor is it a slur on British Library, which, following the tradition of British Institutions, encourage its staffs to be involve in outside organziations to promote public good, provided their involvement is not seen to be endorsing anything even slightly controversial or biased.

It is just that, why is he involving himself with a committee that a lot of people says is there to rubberstamp Microsoft Office XML? My view is even dimmer, it is a committee to write the documentation of Office XML for Microsoft!

His statement on the subject. quote, “Some people think we are adopting Microsoft formats as our standard for digital preservation. This is not right; we are striving to make sure that content we receive in MS formats will be preserved”, unquote, in my view, makes his involvement in the committee even more difficult to understand. If digital preservation of documents in different formats is the aim, surely the British Library must involve themselves in other standardization as well. While they can claim they underestimated OpenDocumentFormat potential, they cannot claim the same for PDF standardization effort. Why didn’t I see them mentioned in PDF standardization then? The British Library is a big catch for any organization.

Well, he claims that it is not directly linked to Microsoft’s sponsored project to digitize rare and out-of-print books from British Library Collection. The cynic in me beg to differ. I will say it is a strong factor influencing the decision, unless, of course, that MS format is simply unuseable for archiving and he is there to correct this defect. This is unlikely, the committee looks to be a rubberstamp committee.

Developments on Microsoft EU antitrust case

Wow! Why the end-of-year rush of bad news for Microsoft EU Antitrust case? Is it because the European Bureaucrates need to meet an end-of-year deadline to allow them to claim “progress”? Or did they think that Microsoft needs the Christmas break to digests the information? Or someone is trying tos spike Microsoft’s Christmas? Most likely it is that the “end-of-year” slow down means news organzation were short of news to fill pages so smaller news items bubble up to the front pages.

In chronological order:

First and this is a rather surprising: The European Court of First Instance rejected the the application of four organizations to intervene on Microsoft’s behalf. These failed to demonstrate that either “their members’ interests can be affected by the principle decisions in the case”, or that “they represent a non-trivial propotion of a sector and the decision of the court have an appreciable impact on the sector concerned”. One organization (The International Association of Microsoft Certified Partners, Inc. or ‘IAMCP’ )was rejected because in the court’s opinion, they are simply a conduct of communications between Microsofts and developers and failed the first criteria, the others, the court says that they are mere think tanks, i.e. no direct interest. I think Microsoft is surprised as well. It is difficult to believe that Microsoft did not have a hand in their application. I hope they can now have Microsoft foot the legal fees they are supposed to pay to the other parties involved. Free Software Foundation Europe, on the other hand, should had asked for legal fees. Because they did not ask, they missed out.

Second development is one that have longer impact on Microsoft and others, including me: EU green paper on antitrust damage says, according to Bloomberg News, that trade secret deserves less protection from other Intellectual Properties such as Patents. (Note I tried to read the green paper but it is so full of legalese that I cannot understand it.) If so, Bloomberg News rightly conclude that this weaken Microsoft claims that releasing interoperability information to open-source as required by the EU, violates trade-secret rights. In my view, the most important aspect is not that this weaken Microsoft case, but rather the acknowledgement by the EU that intellectual property rights (IPR) is subservent to monopolistic abuse which it should be. Furthermore, this is consistent with my first principle of Intellectual Property: “Promoting Innovations”. Putting trade-secret, or other IPR above Monopolistic Abuse will certainly reduce innovation. I hope we are seeing a crack in the armour for those trumpetting IPR rights for content owner.

Third development is that EU says that Microsoft did not comply with its requirement to release the information it was ordered to. Hence, it is threathening to fine Microsoft upto two million euros per day if it fails to do so by 15 January (backdated to 15 Dec if the fine materialized). Microsoft is sitting on a pile of cash that it does not know what to do, hence the fine will not hurt the company as much. Moreover, two million euros is only an upper limit, the actual fine is likely to be substantially lower. If you ask me, I think the chances of Microsoft being fined is not very high, but it is likely to result in some Microsoft employees losing their Christmas Break. Well, at least those employees are very well paid.

Oh ya, did I mentioned AOL is cuddling up to Google rather than Microsoft?

Guilty of misrepresentation, but not hijacking

A storm (in a tea-cup) has erupted over Microsoft’s labelling of the use of of a valid C++ standard function call std::copy() deprecated.

The issue of contention is that in some circumstance, a perfectly legal call to std::copy() will trigger the compiler to issue a “deprecated” warning in one of the internal function used by std::copy(). Microsoft has promised to removed this wording. This, of course, trigger suspicion that Microsoft is again up to its “embrace, extend and extinguish” strategy.

As a C/C++ programmer, I normally treat any warning displayed by my compiler when I am using standard C++ function as an indication that there is a problem with my style of writing the function, as defined by the C++ standard. This is true even if the warning message is generated by an internal function called by the function I used because it is not an uncommon practice to have internal functions catching and reporting the problem. However, not everyone will consider that the warning/error could be a results of incompatibility between the compiler I am using and the actual C++ standard. In fact, I did not develop this way of reasoning until I have to work with several compilers at the same time, each with their own quirks. Therefore, there is a risk of misinformation.

Hence, by displaying a “deprecated” warning when users use std::copy(), function unnecessarily, Microsoft is guity of misrepresentation. It is not Microsoft’s right to declare function call defined by the C++ Standard committee “deprecated”, especially when “deprecated” carries a very well defined meaning in the C++ Standard. (A function marked as “deprecated” means the use of the function should be avoided/recoded if necessary as it will eventually be removed from the standard document). Apparently, the reason why Microsoft’s C++ compiler issues such a warning have to do with its extension of the C++ Standard. Unfortunately, everyone who do not wish to use Microsoft’s extension of the C++ standard is going to be presented with this warning and this is unacceptable.

However, we cannot conclude from this that Microsoft is deploying the “extend” phase of its infamous “embrace, extend and extinguish” strategy. For one it did not suggest the use of any of the Microsoft specific function to work around this warning message. Moreover, most programmers will simply revert to pre-std::copy() ways of copying a range of data, most likely the famous for-loop construct. If this were part of the “extend” phase, it is extremely unlikely that programmers will be fooled to use Microsoft-specific extension.

Anyway, as I said, Microsoft is working to remove this message. As such, Microsoft is guilty of misrepresentation, but there is seriously insufficient evidence to suggest that it is hijacking the C++ standard.

I would characterized this issue as something that can affect any compiler vendor. It is not uncommon to have compiler specific extension. For most C/C++ programmers that have to write code that works on all platform, we are accustom to this fact and do, from time to time, check that we are simply using standard complience function calls only.

For other vendors, it would simply means filing a bug report with the vendor and insisting that the vendor change the text of the warning. Unfortunately, the vendor this time is Microsoft, hence, a lot of people who cares about standards first reaction is to find out whether Microsoft is trying to hijack the C++ standard. Sad fact. It underlies the mistrust between Microsoft and the community that cares about the C++ standard.

Alan Yates @ Massachusett’s Open Forum

After listening to the audio of the MA Open Forum on the Future of Electronic Data Formats for the Commonwealth, I agree with Pamela Jones that Andy Yates of Microsoft comments on the Massachusetts’s Open Forum (REF) is asking Massachusetts to adopt two standards, OpenDocumentFormat (ODF) and MS Office XML format (MS-XML).

Assuming that MS Office XML format meets the requirements set out by Peter Quinn on the September meeting, whether Massachusetts adopts two standards, change to MS-XML format, or continue using ODF, is of course Massachusetts’ decision and theirs alone. My gut feeling, as inferred from Peter Quinn’s comments in the September Meeting, Halloween Meeting and this meeting is that Massachusetts is receptive in adopting two formats. If I were the Massachusetts Officer in charge, I will think very carefully before adopting two standards. By adopting two standards for the same purpose of archiving documents, I am very likely to cost the state more money then it would be if I stuck to one standard, because I have to do things in the double. Alan Yates is correct in pointing out that competition between the two formats is good, but it does not mean that “adopting the two standards” make economic sense. Moreover, I am not sure that it is Massachusetts government’s job to ensure competition between the two standards. Someone did mention that “the competition is in the applications, not the standard” (REF). Linda Hamel characterizes Massachusetts State Government as a 23 billion dollar enterprise . Like any enterprise, they are entitle to choose which standard they want to use.

As I mentioned in my previous blog (REF), Microsoft is finally making the right approach in Massachusetts. Asking Massachusetts to adopt two standards and bringing their attention to the possible advantages of adopting two standards is the correct way to go, especially for the “loser” in the selection process which is effectively a “beauty pageant” (as oppose to an “auction”). I use loser in inverted commas because it is still unclear whether MS-XML or ODF is the loser. The only thing I can say is that MS-XML is at a disadvantage.

To support his case for adopting two softwares, Alan Yate’s characterize Microsoft’s (MS-XML) approach as the “software-based approach” and IBM/Sun (ODF) approach as “service-based approach”. His speech writer should had checked Linda Hamel’s written response to the Halloween Meeting where she said “The overarching goal of the ETRM is to create a web-based service oriented architecture.” as this effectively means Yate’s conceding that ODF is better for Massachusetts.

Alan Yate said that Microsoft is not oppose to ODF. I doubt this. First of all, they are still insisting not to support ODF in Microsoft Office and instead, pushing the State to adopt two standard. Secondly, while it is true with an exception of an interview with David Berlind and Brian Jones’ blog, Microsoft was mum on the subject all along. However, the influx of articles berating Massachusetts for not endorsing MS-XML from Microsoft supported organizations and Senator Panacho’s almost point-for-point parroting Microsoft’s argument in the Halloween meeting simply imply that they choose to fight by proxy. So, no, Mr Alan Yate, your action shows that you are oppose to ODF until today.

Andy Updegrove managed to squeeze in a question asking Yate’s to comment on MS FAQ item about Office XML ECMA process misrepresented the ODF standardization effort in OASIS. Yate’s response is that they simply wants to point out that both MS-XML and ODF started as proprietary format and that they are pointing out that the quantities of written comments from SUN do indicate that SUN has very strong influence in the process and the OpenOfficeFormat (predecessor of ODF) made it to ODF without much alteration.

Considering the fact that only OpenOffice and SunOffice are extremely closely linked, and they are the only two software using OpenOfficeFormat, I will agree that it is a proprietary format for the purpose of this discussion. I am, of course, ignoring the fact that unlike MS-XML predecessor, there is no obstacle for third parties to implement OpenOfficeFormat and in that sense, it is not proprietary. Let’s not split hair here.

However, while I am sure that Sun’s has the most written comments to OASIS with reference to ODF, I would not consider that to be prove that SUN has undue influence in ODF standardization. Why? First, Sun, via OpenOffice and SunOffice initiative, has the most experience in the field of office documents. Hence, they are going to be the more prolific in commenting. Second, Koffice is also heavily involved, they were the first to implement ODF and was used as a proof that two separate initiatives can implement the ODF standard. Also, as application writers that implements ODF rather than end users of ODF, Sun is going to be more vocal as it discover problems etc when implementing it. Thirdly, IBM is on the committee. It brings on to the table expertise in using ODF in Back office application, namely server-oriented architecture as can be expected to object if things does not go their way. As IBM is almost equal in size with Sun, it is difficult to see how Sun have an unimpeded passage to force its view on others. Finally, simply because someone is more active in a standardization, i.e., commenting, simply means they are more committed than others in the process, not that they have undue influence over the process. It is the content of SUN’s comments that counts, not the quantity.

Microsoft making right noises at Massachusett Meeting

I have not finished listening to the Dan Bricklin’s PodCast on “MA Open Forum on the Future of Electronic Data Formats for the Commonwealth” yet, but so far, Microsoft had taken the right steps.

Understand this, I am not commenting on whether Alan Yate’s comment. Rather, I am saying that they taken the correct steps:

1. Not threatening to take legal action. (Everyone, except lawyers, hate lawsuits)
2. Instead of complaining that Massachusett do not adopt Office XML and insist that they take the Office XML as offerred, take steps to make Office XML acceptable
3. Send someone high up (Alan Yates) to the meeting. At a mininmum it show that you respect your big customer (the state of Massachusett), but more importantly give your high ranking officer a better feel of the situation.

I will comment on Alan Yate’s statements later.

Microsoft making right noises about Office XML Format

Microsoft posted an FAQ on the ECMA process. It is making some right noises about standardization. It clears up that the covenant not to sue will extends to the final ECMA specification (which I had expected) and most importantly, clear up what is meant by “conformance”. Of particular interest is the ability to implement part of the specification, or to extend on the specification.

Andy Updegrove posted an excellent review of the FAQ. I broadly agree with his review, especially the part where he said that Microsoft misrepresented/smear the OpenDocumentFormat (ODF) process in OASIS. It is perfectly fine for Microsoft to explain why they chose not participate in the ODF process. I have a question for them: If they had chosen not to participate, how would they know that participants have no say in ODF’s evolution to final standard? It is true that Microsoft have no say because they have no vote in the ODF process, but this is because OASIS have the policy that state that merely being a member of the process do not give you voting right if you do not participate in the process. Participation, as I understand it, merely means one have to turn up for meetings. Microsoft had chosen not to participate. It is their business decision and they have to live with it.

The swipe was totally unnecessary. Calling the ODF committee “small” is disingenuous: the role call for that committee (see Andy Updegrove article above) is certainly larger than that of the Office XML format committee. Moreover, Mr Updegrove had demonstrated what expertise the not-so-obvious members of the committee brought to the table. For example, Boeing brought expertise on complex documentation requirement (specifications, manuals etc) and the Bibliographic Society brought in expertise on multiple languages and bibliography generation. The fact that Mr Updegrove manage to describe these contribution shows that they at least got mentioned in the meetings. The continuing participation of these members implies that they see a value, which I interpret as they see that they can influence the process.

Obviously, this shows that Microsoft is rattered by comments that the ECMA process is simply a rubberstamping committee. There is still time to correct this. People like me is prepared to give ECMA a one-time opportunity to rubberstamp Microsoft Office XML format. However, the operative word is “one-time” and it is on the understanding that future standards from this committee is a result of collaborative work of all members in the committee.

Mr Updegrove says that at least one thing is true, that “The OASIS [ODF] committee did not focus on the requirements, constraints, and experiences of Microsoft customers.” I agree, and will like to add that it is because Microsoft choose not to represent its customers. Indeed, Microsoft had chosen to leave representation of its customers to (dissatisfied?) Microsoft customers such as Boeing.