I understand why PJ rant about Microsoft’s Open Specification Promise (OSP) is not good enough as it exclude commercial use, and link it with ISO RAND terms. Her point was OSP probably satisfy ISO wording of Random and Non-Discriminatory (RAND) but is not the spirit. Most (99.999% and I will talk about the remaining 0.001% later) RAND terms that requires payment will exclude Free and Open Source software. While ISO have no duty to ensure Free and Open Source Software can use its standard, it has the duty to ensure that its RAND licensing requirement cannot be used by anyone to exclude its main competitors. That will certainly fails the “non-discriminatory” spirit.
We all understands that ISO RAND licensing terms do not require money to change hand, but does not forbid it either. In the good old world where using ISO standard in a product means money will change hand, allowing license fees payment, when the licensing is applied flatly and uniformly across the industry indeed satisfy the RAND spirit and letter. Moreover, the elegance of this money based approach, rather than opening one’s patent portfolio is its simplicity and wide applicability. However, in this age of software where money need not change hand, requiring licensing fee had become a discriminatory weapon instead.
In a lot of ways, Microsoft’s Open Specification Promise more than satisfy ISO RAND requirement. However, as its restriction on Commercial use has impact on its free and open source competitors, especially when they are the only viable competition, it falls short in spirit. This is not unexpected and is actually a main reason behind the distinction of Commercial vs non-commercial use in OSP. Therefore, it does not satisfy any RAND requirement at all, including ISO’s.
Remember the SenderID licensing problems that torpedo it in IETF? It involve Microsoft and does not even involve money. Yet prominent organizations comes out to say that it is not non-discriminatory. To be fair, Microsoft is not the only company that has this problem, see W3C struggle with IP issue for more detail.
I said that for 0.001% of the time, money changing hand is not discriminatory practice. One good example in point is the Microsoft Protocol Agreement with Protocol Freedom Information Foundation, on behalf of SamBA. That is an innovative piece of work. Crucially, it shows a possible way for future RAND licensing.
What I do not understand why Jason Matusow choose to participate in this debate. He contributed nothing except wrongly accused PJ as spreading FUD. What PJ point out is the problem with with RAND licensing in ISO. She did not ask for special treatment, did she? She is just saying that the RAND approach can be inappropriate for software and that OSP is certainly wrong to claim “non-discriminatory”. For someone claiming to understand IP licensing in Standards better than PJ, surely he can see this and address it, rather than take a beat around the bush approach and dig up the history behind ISO RAND licensing formulation, which amount to noise in the discussion.
 PJ responded to Jason Matusow article. She of course did a better job than me in explaining why RAND in the traditional sense is not compatible with Open Standard in software. After reading her work, I am starting to change my view from “RAND should not prevent dominant competitors from using the standard” to “RAND should not prevent any competitors to emerge by using the standard”. Immediately I realize that this view is difficult to implement, .e.g., define emerging. Then I hit on an elegant principle:
Open Standard must be implementable by any parties. The duty of RAND is to facilitate this, NOT hinder it.
This principle can be easily translate to cover the current and other situations, including yet unknown situation. Microsoft’s OSP fail because it is designed unreasonably hinder a non-insignificant segment of the industry who wants to implement it, but cannot, the commercial sector in general, free and open source software in particular.