January 26, 2003

Danish ISB repository: Did government read fine print?

Author: David Sugar

As an individual who is participating in the development of free
software solutions for enabling e-government access for the blind,
I was very interested to learn of the Danish government's effort to
create an electronic document repository. However, the government will face some serious problems if it is carried through according to the current plan. Here's why.

The InfoStructureBase repository Web site, states, among other things:

The target group of the site is technical and non-technical staff from
international, national, regional, and local authorities and their
providers of IT solutions. Users include developers,
information-architects, project managers, IT architects and others.

Furthermore, the mission of this site is stated as:

The Infostructurebase is established to facilitate integration. In order
to attain the highest level of integration and interoperability,
standardization is necessary. This section contains information on how to
standardize information.

The objective of the standardizing work is to determine standards for
exchange of data between the public authorities and between public and
private institutions. Standardization is a necessary step toward the
ability to use and re-use data over the long term, with no lock-in to
proprietary tools or undocumented formats.

Using a certain methodology ensures that all the necessary information
elements are taken into consideration when creating standards. At the
same time, all relevant parties should take note of the standardization
work.

The process evolves from establishing the proper group of people, who
should attain in the development in the interface descriptions - people
with the insight of the relevant information area.

The Danish XML Committee is developing a handbook for standardization to
support the standardization process.

I had reviewed the ISB repository, only to find a statement that the
site is using Microsoft XML schemas for documents that will be in the
repository. I further found this statement on the site: "Microsoft Word
Document ML schemas published in the Infostructurebase on Monday the
17th November the XML schemas for the Word Document ML along with
documentation, was uploaded to the Infostructurebase (ISB)." It
further states that "With the Word Document ML specification, anybody can
generate, view and process Microsoft word documents on any format. See
the legal terms at
http://rep.oio.dk/Microsoft.com/officeschemas/LegalNotice.htm".

I looked at the site with the suggested "legal terms" of use of
documents in the repository in Microsoft XML schema formats as
suggested. In fact, upon doing that, I found the statement that
"anybody can generate, view, and process Microsoft word documents on any
format" to be both factually false and misleading. The actual terms
that cover the documentation and use of the XML schema defined is
covered by a specific and restrictive license, as found at the
referenced URL. The terms of this license further state: "There is a
separate patent license available to parties interested in implementing
software programs that can read and write files that conform to the
Specification. This patent license is available at
http://www.microsoft.com/mscorp/ip/format/xmlpatentlicense.asp."

Both the existence and actual terms of this XML license patent claim in
fact both prevents end users from accessing or using any of the ISB
repository except under the terms and conditions set by the original
vendor, and therefore in effect, and contrary to the stated mission of
the repository, actually prohibits other entities from either accessing
or supplying products and services related to the ISB, except under the
expressed and explicit terms set and permitted by this vendor.

As a developer of software services and solutions for enabling
accessibility to e-government services for the blind, I found that these
conditions and licensing would prohibit my ability to specify conditions
of use of any of my own products or services in conjunction
with the ISB repository or with any other governmental or private
institution that uses these file formats.

Furthermore, I found the terms of this license explicitly prohibit commercial entities and individuals from offering certain specific terms or licenses for their
commercial products, such as the GNU General Public License, and would
in effect prevent the Danish government and private institutions from
offering public solicitations on their own terms for goods and services.

Since these conditions on use of ISB data actually restrict the terms of
sales for both a soliciting authority, be it a government or private
company, and the terms of sale that can be offered by a commercial
provider, these conditions, both in part and in whole, are both
discriminatory and constitute "restraint of trade," as defined by the
European Union, as governed under Article 85 (1) of the Treaty of Rome,
and Article 81 of the European Community Treaty, to which Denmark is a
signatory party.

The terms and conditions of this patent license
also would deny the Danish government's sovereign right to determine terms
and conditions of sale with commercial contracts related to the ISB.
In effect, through the ISB, by accepting and using patent encumbered
document formats that restrict who may access and use their content, the
Danish government has created a restricted market in the public's own
goods, contrary to both European Community law, and even the most basic
government purpose of serving the public interest.

Under the terms and conditions of use offered through the ISB for accessing documents
encoded in this schema, even Denmark's own citizens could be legally
prohibited from accessing their own government publications unless using
products and services specified and approved by the patent license
holder, assuming such patents also become valid in Europe. Clearly such
a situation is morally and ethically reprehensible as well as
fundamentally in violation of European Competition laws.

There were a few additional issues that I had with the requirement of
this license in regard to accessing the ISB site that I would like to
clarify, because I did not cover them at all in my original
complaint.

  • First, this license claims to control scope of use, such as
    expressly prohibiting the reading and writing of documents by unlicensed
    software. This is contrary to the EU draft directive on software
    patents, which in its current form explicitly permits the creation of
    unlicensed software -- even when a valid patent exists -- when done for the purpose
    of interoperability. Should software patents become a matter of law
    in the EU under these terms, would not those individuals who agreed to
    this license in advance have then denied themselves the protections
    that may potentially already exist in law?

Second, there are no fixed terms or period of use for the
license. Unlike most licenses, where the licensee is asked to include the
actual terms of a license, fixed at the time it is received, this
license requires the licensee to instead include a url to an external
Web site. This indicates that the actual terms and conditions of this
license are certainly not perpetual and may be changed at any time at the
sole descretion of the vendor; and, in fact, no instrument in the
license exists to prevent its terms from being changed in the future.

This violates the concept of equal bargaining power required for a
true legal contract to exist and also suggests that the scope of future
liability to signatories of this license cannot be determined. The
license claims a royalty-free grant, but this is neither a fixed or perpetual
condition.

I can only conclude that since the terms of conditions for accessing and
using public documents and schemas from the ISB repository is so
contrary to the stated mission and goals of this site and even the
normal functioning of a free and democratic government, that this was
done by mistake or error, and I look forward to the Danish XML committee
correcting this issue for all parties concerned.

David Sugar is a GNU maintainer and frequent conference speaker on free software issues based in Europe.

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