Is FRAND compatible with FOSS?

Open source advocates are treating Florian Mueller (right) the way liberals are treating Juan Williams these days, and it’s not hard to see why.

Mueller’s acceptance of the fact that Fair, Reasonable And Non-Discriminatory Terms (FRAND) is coming to open European standards has made him apostate.

Some are even willing to write me out of the movement for daring to befriend the man.

But Mueller isn’t writing this stuff because he wants to, and I don’t think he’s doing it because he’s paid to, either.

He’s writing it because it happens to be true.

Take, for example, this post by Unisys developer Patrice-Emmanuel Schmitz, writing at the Open Source Observatory and Repository,  which calls itself “a platform for exchanging information, experiences and FLOSS-based code for use in public administrations.”

In the European Union Public License (EUPL) (and in copyright law in general), the term royalty-free means that once the software is licensed, the licensee is free to use and distribute the work without paying additional royalty charges. This makes no obstacle to charging an initial fee for distributing or selling the software (as it may be done by a commercial FOSS organisation), or to a financial agreement between developing organisations (i.e. to mutualise and share the cost of software development).

In other words, there’s nothing wrong with paying for code. Royalty-free should mean that continuing charges past that initial payment — monopoly rents — should not be allowed.

It seems to me this stance falls somewhere between that of groups like Free Software Foundation Europe (FSFE), and the Business Software Association. Schmitz is saying that paying for software is OK, but once you pay for it you control it. The BSA only supports licenses for software — ownership does not change hands.

Mueller finds FRAND a reasonable position. He quotes former EU competition commissioner Neelie Kroes, who said in June “I have nothing against intellectual property being brought to the standard-setting table, but it must be disclosed.”

Then he adds:

Mrs. Kroes said in the same speech that “reasonable people often disagree” when trying to set FRAND license fees. That’s a challenge, not a knock-out criterion. FRAND isn’t a mathematical formula that arrives at a simple result. FRAND is a framework, and the way it’s interpreted is subject to the specific circumstances of a license agreement.

While European governments have a distinct preference for open source, they also prefer not to dictate the choices their members make. A standards process shouldn’t be used to knock out specific vendors, and as Mueller writes there is a difference between openness and royalties.

You may disagree with that. Open source advocates may disagree with that strenuously. That’s a good thing. But insisting that all those who accept the legitimacy of a contrary position are bad people is going a little too far. Sometimes they’re just reporting the facts.

Don’t shoot the piano player.

Dana Blankenhorn has been a business journalist for 30 years, a tech freelancer since 1983.