The case for a valid contradiction of Microsoft Office Open XML at ISO has not been rebutted

Abstract

As a matter of law, a national body's contradiction to a draft standard being processed on the fast track at the International Organization for Standardization ("ISO"), such as Microsoft's proposal that its Office Open XML specification become an International Standard, validly includes an objection that the draft standard is ineligible for further preparation as a standard on grounds that it would create an unnecessary obstacle to international trade. The relevant standardization processes are based on consensus among member nations. Contradiction should be understood in context as a national body's veto of fast track procedures being applied to a standard, not as a narrowly-defined grounds for objection. A contradiction is in essence notice that a draft standard is a deal-breaker, that a national body is unwilling to agree to a draft standard being processed on the fast track. This paper addresses the controlling law and relevant policy statements, concluding that: [i] definitions of contradiction provided by a Microsoft staffer and another commentator are unquestionably wrong; and [ii] because their positions on the meaning of contradiction in context are in error, the published case for contradicting further preparation of the OOXML draft standard have not been rebutted. Recommendations are given for ISO to minimize the potential for such disagreements in the future.

Introduction

This presentation is in no small part intended as an an apology for not having previously performed more thorough legal research on the meaning of the word contradiction in the context of the JTC-1 Directives, a personal failing I seek to remedy here. That is the burning issue of the moment as Microsoft's proposal that a partial specification of its new Office file formats be adopted as an international standard by the International Organization for Standardization ("ISO") wends its way through ISO processes.

Since my first article,  Rick Jelliffe has waded in, as has Microsoft's Brian Jones.  As will be apparent if their takes are compared with the discussion below, both got it wrong on the meaning of contradiction in the context of JTC 1 Directives. Way, way wrong. Also since my first article, Grokdoc, the companion of the Groklaw legal news web site, has published a detailed and fully referenced assembly of grounds for objecting to the fast track processing of Ecma 376.

Recommendation:  Before launching into the legal meaning of contradiction in context, it should be noticed that much disagreement could have been avoided had JTC-1 offered a bit more guidance in its Directives on the meaning of a contradiction. The Directives very appropriately do not define the term (its meaning cannot be defined by ISO as its meaning is determined by an international treaty), but offer no clue to where such meaning might be divined.

JTC-1 might consider offering more guidance for participants, such as a footnote in its directives calling the reader's attention to the relevant treaty. I also suggest that the term contradiction be deprecated in the JTC-1 Directives in favor of a term less susceptible to misunderstanding, such as objection. The term originally chosen has proved a source of and vehicle for confusion.

A. Background:


If you are new to the issue, here is some background with the lead paragraph in alphabet soup format. JTC-1 is Joint Technical Committee 1 of the ISO/IEC, a standards organization that is processing the Microsoft proposal, identified within that process as "ECMA-376 ¦ ISO/IEC DIS 29500 Office Open XML File Formats." (That mouthfull is a title only an office systems designer could love.) A few days from now, February 5, 2007, is the deadline for JTC-1 national member bodies ("NBs") to submit "contradictions" of the draft standard, which are in effect objections to the draft standard remaining on the "fast track" review process established under JTC-1 Directives (.PDF).

If an NB submits a contradiction, then attempts are made to resolve differences by the ISO's ITTF and the JTC-1 Secretariat before ballots are distributed on the contradiction. If an NB maintains a contradiction, further dispute resolution processes may ensue, but a contradiction is in effect a veto. The default is that the draft standard remains on the fast track unless a contradiction is raised and maintained. If the draft standard remains on the fast track, a final ballot on Ecma 376 adoption as an International Standard is distributed to all ISO members five months after the vote on the contradiction.  However, I stress that it is a consensus process throughout.  It is not, for example, a process whose decisions are made by majority vote.

During the 5-month period, the draft standard is reviewed and can be amended by agreement. However, if Ecma 376 is derailed from the fast track, then it would have to be resubmitted by Ecma International to JTC-1 on a more flexible track, allowing far more time for thorough review and evaluation of the 6,039-page draft standard. That assumes that Ecma would decide to do so rather than just abandoning the ISO standardization goal.

ISO is a non-government organization ("NGO") that administers development of and certifies two types of products, international standards and conformity assessment systems. It differs from some other NGO standards organizations in that its voting membership ("P-members") are only government bodies or private bodies authorized by governments to exercise the authority of national governments. For example, the NB for the U.S.A. in the Ecma 376 standardization process at ISO/JTC-1 is ANSI-INCITS, acting under the delegated authority of the federal National Institute for Standards and Technology.

In JTC-1, draft standards are processed on various "tracks," with much of the work handled by subcommittees. Ecma 376 was submitted to JTC-1 on the "fast track" and Subcommittee 34 ("SC34") has jurisdiction. The fast track process is primarily designed for draft standards expected to be non-controversial because they were previously developed through an industry standardization organization such as Ecma International. On that track, the national bodies ("NBs") are directed to to submit "contradictions" to the draft standard's processing on the fast track within 30 days of a draft standard's submission to the NBs.

The NB reviewers are experts in the relevant fields, often employees of companies with vested interests (in countries that delegate government authority to private standards organizations) who evaluate the draft standard in aid of determining whether their NB should submit a contradiction in response to the submitted draft standard. (If you are dying to read the relevant ISO and JTC-1 rules yourself, see my earlier article for links to the relevant ISO and JTC-1 documents.)

That is the view from the outside, coupled with a (largely unwarranted, in my view) ISO public image of disinterested evaluation of proposed standards on their technical merits. In fact, ISO as an organization has little influence on the standardization packages it processes. The NBs have the real power and many NBs are thoroughly politicized. The present circumstances discussed below suggest strongly that the ISO image is largely a facade, that important decisions are being made within the ISO process without regard to or even awareness of the law.

The Ecma 376 draft standard proposal marks the first occasion when droves of software users and developers outside the ISO structure participated in the ISO standardization process by submitting evidence and expressing their opinions to national bodies. It remains to be seen whether any national body will file a contradiction. In the U.S., ANSI-INCITS has reportedly decided not to do so, which has the practical effect of a vote in favor of keeping Ecma 376 on the fast track process at JTC-1. To my knowledge, no other involved NB's position has been announced.

 

B. Legal analysis


What I wrote in my earlier article about the scope of a valid contradiction was correct. However, I overlooked inclusion of that which would have been most helpful and persuasive on the meaning of that word in context, law speaking directly to the issue that should refocus the debate on the correct concerns.


1. Origin of contradiction


The term contradiction in the JTC-1 Directives apparently is intended to reflect the meaning of the word "prepared" in the following passage from the Agreement on Technical Barriers to Trade ("TBT"), Article 2 Section 2:

"Article 2: Preparation, Adoption and Application of Technical Regulations by Central Government Bodies

"With respect to their central government bodies:
...
"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."

That is not a convoluted grammatical construct susceptible to misinterpretation in relevant aspects. The juxtaposition of the word adopted unmistakably instructs that prepared  in context means something far earlier than the final ballot at ISO on adoption of a standard, that draft standards are not even to be processed if they fail the treaty's criteria.

In that regard, it is highly relevant that the contradiction phase is the sole opportunity provided by JTC 1 fast track rules for national bodies to object to draft standards being prepared  if the NBs regard such draft standards as possessing the forbidden characteristic of an "unnecessary obstacle[] to international trade."

Therefore, if contradiction  is not construed to have always allowed such objections, then JTC-1 and participating NBs have been operating outside the strictures of the TBT in all fast track processing of draft standards. Beyond question, JTC-1 is required by the treaty to provide an opportunity at the outset of its processes for NBs to raise the charge that a draft standard would create an unnecessary obstacle to international trade and to have such objections decided.

Recommendation: If ISO/IEC do not construe contradiction as always having had the meaning discussed, then previously issued ISO standards would no longer be entitled to the status of an International Standard within the meaning of the TBT. The only alternative to revisiting every international standard previously approved by ISO is to construe a contradiction as the appropriate vehicle for NB's objections to draft standards on grounds that they are being "prepared ... with a view to or with the effect of creating unnecessary obstacles to international trade." I therefore recommend that ISO and JTC-1 adopt the position just described.


2. Accord with JTC-1 Directives


What little relevant information provided by the JTC-1 Directives (PDF) is in harmony:

"11.1.2 A P-member of JTC 1 or an SC may appeal against any action, or inaction, on the part of JTC 1 or an SC when the P-member considers that such action or inaction is:
  • ...
  • Not in the best interests of international trade and commerce, or such public factors as safety, health or environment."
A JTC-1 decision on a lodged contradiction falls within the scope of "any action, or inaction, on the part of JTC 1" and is therefore an appealable decision under the Directives. If one of the permissible grounds for appeal of a JTC-1 contradiction decision is that a draft standard is "[n]ot in the best interests of international trade and commerce," then that grounds is surely proper grounds for an NB's contradiction in the first place. (The just-quoted phrase should be understood as  paraphrasing the language in the treaty.)

To argue otherwise necessarily implies that such objections should not be considered by JTC-1, but only by the appellate body. Such an argument would inappropriately shift the NBs' duty under the treaty ("[m]embers shall ensure ...")  from the NBs to the appellate body. The plain language of the TBT quoted above rests the responsibility for halting the preparation of draft standards that would create unnecessary obstacles to international trade with the NBs, not with the ISO appellate bodies.

Therefore, the JTC-1 Directives permit contradictions asserting that a draft standard would create an unnecessary obstacle to international trade.

3. Accord with World Trade Organization guidance

Further accord is found in the World Trade Organization Committee on Technical Barriers to Trade's Decision and Recommendations Adopted by the Committee Since 1 January 1995 (Rev. 8) (.DOC):

"All relevant bodies of WTO Members should be provided with meaningful opportunities to contribute to the elaboration of an international standard so that the standard development process will not give privilege to, or favour the interests of, a particular supplier/s, country/ies or region/s."

The WTO Committee with jurisdiction thus is in accord that draft standards should not be processed if their effect would be to create an unnecessary obstacle to international trade. The "standard process" itself must not privilege or favor the interests of a particular vendor.

4. The absence of contrary legal authority


Those who would give contradiction some non-economic meaning might consider the need to cite to applicable law that supports their position. I have found none.

The appropriate criteria for a valid contradiction given in the TBT are stated in the disjunctive, i.e., the draft standard originator's improper state of mind as to effects on competition  ("with  a view to") and the presence of anticompetitive effects ("with the effect of") in the draft standard.

Technical considerations are secondary and relevant only to the extent they bear on the treaty's economic criteria. (To simplify the remaining discussion, I will omit further consideration of the issue of Microsoft's corporate state of mind, a subject previously explored in some detail in decisions issued during various antitrust proceedings.)

The onus is on those who disagree to bring forward legal authority for their contrary position.

5. The NBs' primary duty at the contradiction review phase

The primary issue the NBs are charged with deciding in the contradiction review phase is whether Ecma 376 would create a competitive advantage for one or more competitors not available to all competitors on an equal footing ("[m]embers shall ensure ...," etc.) The relevant portion of the TBT is in the nature of an "equal rights" guarantee for all competitors in the same market internationally. If a draft standard is presented that would bestow a competitive advantage on one or more competitors not equally available to all competitors, the draft standard is to be rejected at the outset and not to be "prepared" for a final ballot on adoption except in narrow circumstances discussed below that are inapplicable exceptions in the case of Ecma 376.

6.  Accord with Free Trade Agreements generally

That the TBT's guidance for the NBs focuses on "unnecessary obstacles to international trade" is not surprising. The TBT is only one of the many General Agreements on Trade and Tariffs ("GATT"), a well-known series of treaties more popularly known as the Free Trade Agreements. 

The Free Trade Agreements are intended to level the competitive playing field worldwide by removing obstacles to international trade and promoting competition including by, inter alia, promoting adoption of international standards and conformity assessment systems, and eliminating inconsistent standards. See e.g.,

Preamble to the TBT. ("Recognizing the important contribution that international standards and conformity assessment systems can make in this regard by improving efficiency of production and facilitating the conduct of international trade").

7. Inconsistent duplication of or overlap with existing standards

Proponents of Ecma 376 have argued, without citation to controlling law, that inconsistent duplication of or overlap with established International Standards is not a valid basis for a contradiction. See e.g., Jelliffe, supra, arguing that the fact that overlapping standards already exist is proof that overlap is improper grounds for a contradiction. Such arguments are logical fallacies dependent on an erroneous premise; i.e., previous violations of the law do not bar its later enforcement. The correct threshold issue NBs must decide in the Ecma 376 contradiction case is what the law requires, not whether it has previously been applied uniformly.

Much of the TBT is about the elimination of barriers to trade by eliminating inconsistent standards. For example, Article 2 section 2.4 provides:

"Where technical regulations are required and relevant international standards exist or their completion is imminent, Members shall use them, or the relevant parts of them, as a basis for their technical regulations[.]"

The argument that inconsistent standards which duplicate or overlap with functionality of other standards are proper necessarily rests on the premise that ISO can properly side-step requirements such as the italicized portions of the quotation above, that ISO may do that which the NBs are forbidden to do themselves. But such a position ignores the fact that the treaty allocates its relevant duty to the NBs, not to ISO. ISO does not decide what International Standards will issue; it only certifies the adoption decision made by consensus among the NBs. ISO is a facilitator of International Standards development; its certification of an adopted standard is purely ministerial in nature.

Under the treaty language last quoted, a standard must be "required." Duplicative or overlapping draft standards that evidence no effort at harmonization with existing standards are susceptible to challenge at the outset of the JTC-1 processes as an "unnecessary obstacle to international trade." A draft standard that ignores the obligation that member nations base their own standards on existing International Standards "or the relevant parts of them" simply ignores the requirement of harmonization with existing standards. A draft standard that attempts to reinvent the wheel is not "required."

There is no good reason to expect that NBs should await a final ballot on a draft standard to contradict processing of such a draft. The JTC-1 process, after all, is a consensus process. The consensus process is not advanced by requiring participants to delay giving notice until the end of the standardization process that a draft standard is a deal-breaker.

Indeed, the authority for JTC-1 to establish immutable deadlines for contradictions of fast track processing of draft standards -- and fast track processes generally -- appear nowhere in the TBT. It should be remembered that the JTC-1 process is a negotiation among co-equal governments, not a majority-vote balloting process. JTC-1 lacks authority to compel NBs to adhere to its Directives; they are advisory guidelines at best.

The argument that duplication or overlap with existing standards is improper grounds for contradiction also collides with other provisions of the TBT.  Article 2 section 2.6 provides:

"With a view to harmonizing  technical regulations on as wide a basis as possible, Members shall play a full part, within the limits of their resources, in the preparation by appropriate international standardizing bodies of international standards for products for which they either have adopted, or expect to adopt, technical regulations."

Harmonize
is universally understood in the standards development community as meaning the elimination of inconsistent duplication and overlap in standards. The TBT commands that NBs harmonize standards "on as wide a basis as possible."

Further signs that the TBT does not contemplate duplicate or overlapping inconsistent standards is found in still other provisions of the treaty.  For example, in Article 2 section 2.3 it is stated:

"Technical regulations shall not be maintained if the circumstances or objectives giving rise to their adoption no longer exist or if the changed circumstances or objectives can be addressed in a less trade-restrictive manner."

Moreover, Article 2 sections 2.9, 2.9.1 and 2.9.2 command that NBs give notice "at an early appropriate stage" of the standardization process "[w]henever ... the technical content of a proposed technical regulation is not in accordance with the technical content of relevant international standards[.]" 

Since the contradiction phase is the only point where members may raise formal objections to preparation of a standard on the fast track process before the final ballot on adoption, contradiction must be construed as permitting objection on grounds that a draft standard "is not in accordance with the technical content of relevant international standards." In other words, a draft standard's lack of harmony with existing standards is proper "at an early appropriate stage" of the fast track process. There is only one "early appropriate stage" in the fast track process, the contradiction stage.

The TBT has more to say on the subject than forbidding the preparation  of a draft standard that would have the effect of creating unnecessary  obstacles to international trade. Other treaty language provides further definition to the meaning of the term unnecessary as used in the prohibition against creation of "unnecessary obstacles to international trade." The same section 2.2 quoted above continues:

"For this purpose, technical regulations shall not be more trade-restrictive than necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment would create."

The duty of using the least trade-restrictive means even when a trade-restrictive standard is necessary buttresses the conclusion that the TBT does not contemplate duplicative but inconsistent standards for software file formats. The all too familiar "file type not supported" computer error message provides undeniable testimony that duplicative standards are trade-restrictive.

In the circumstance of the Ecma 376 draft standard, it is also telling that its proponents do not so much as suggest that Ecma 376 should replace existing standards that Ecma 376 inconsistently duplicates and overlaps with, notably ISO 26300, the OpenDocument standard. But the TBT commands in section 2.3, read in conjunction with section 2.6, that replacement of an existing standards is the only permissible grounds for a duplicative draft standard that is inconsistent with an existing standard.

Finally, such arguments also clash irreconcilably with the ISO's own formally adopted primary goal (.PDF ), which aptly summarizes the treaty's goal of a seamless web of integrated and consistent International Standards:

"One standard, one test, and one conformity assessment procedure accepted everywhere.”

From the combination of the TBT passages discussed above, in the context of software file formats one can deduce that: [i] the TBT envisions only a single standard for given functionality; and [ii] standards are to be deprecated if changed circumstances or objectives warrant, but only if the market requirement "can be addressed in a less trade-restrictive manner" than the standard replaced.

Vendors like Microsoft are entitled to lobby against the adoption of International Standards and are free to lobby for their replacement by a new standard that is less trade-restrictive. However, they are not legally entitled to recognition of an International Standard that inconsistently duplicates or overlaps the functionality of an existing standard.

Contradictions may validly assert that a draft standard is inconsistent with an existing International Standard, whether by duplication or overlap. To suggest that inconsistency with established standards may not be properly raised in a valid contradiction is to argue with the treaty itself, not to argue from a principled basis of its proper interpretation.

8. Who may contradict and vote?


I have received unconfirmed reports that Microsoft and proponents of its position have been challenging the right of some NBs to assert contradictions and to vote on contradictions. I stress that I have not confirmed those reports myself. However, I will observe that throughout the TBT, the rights and responsibilities identified apply to "members," the nations signatory to the treaty, and to all members equally (except for certain irrelevant provisions providing developing nations with additional discretion).

If the unconfirmed reports are accurate, counsel for NBs might consider such arguments in light of the TBT's plain language. As best I can determine, there is no authorization within the TBT for voting to be confined to JTC-1 P-member NBs and the plain language of the TBT says repeatedly that the relevant duties it imposes apply to all member nations without discrimination. The duty of all member nations to ensure that standards are not "prepared" if they would have the effect of creating unnecessary obstacles to international trade can only be implemented under the present JTC-1 fast track procedure via submission of contradictions and by voting.

Any suggestion that any less than all properly credentialed NBs can submit contradictions and vote needs be justified by citation to applicable and controlling law. I have found none that would support such an argument.

9. Time allowed for review and submission of contradictions

Fast track procedures are plainly inappropriate for draft standards that require more than 30 days for adequate review under the appropriate economic criteria for identification of conflicts with the relevant treaty provisions. Microsoft's Brian Jones has argued otherwise, raising a fallacious argument founded on the incorrect premise that there is no legal problem with duplicative or overlapping standards:

"This is a quick review to make sure there isn't anything in the spec that would invalidate an existing ISO standard.

"This is not the point where people raise technical objections, missing content, poor design, etc. Instead this is where you want to make sure that the approval of this ISO spec won't cause another ISO standard to break. In the case of OpenXML, there really can't be a contradiction because it's always possible to implement OpenXML alongside other technologies."

As demonstrated above in some detail, the treaty does not contemplate duplicative or overlapping inconsistent standards even being "prepared" for ballots on final adoption, as Jones argues. (Moreover, Jones completely omits discussion of the correct, economic criteria for contradictions established by the TBT, which certainly do encompass the very subjects he argues are irrelevant to the extent that they bear on the draft standard's foreseeable effects on competition.)

The TBT also does not contemplate "fast track" or "slow track" processing of draft standards. That fact does not necessarily imply that it is never proper for JTC 1 to use abbreviated procedures for processing draft standards. But it unavoidably implies that the procedures employed must be subservient to the mission the treaty establishes. Indeed, it suggests that fast track procedures are rarely at best appropriate for controversial draft standards.

Whether the 30-day period allowed for review by NBs is sufficient for competent review of the 6,039-page Ecma 376 draft standard under the treaty's economic criteria for contradictions is not an insubstantial issue and is without doubt a proper issue to be raised in a NB's contradiction of the draft standard being processed on the fast track.

The treaty instructs its member nations to do certain things, not to do them within a specified period of time. A 30-day rule -- and fast-track processing itself -- should only be applied to those draft standards that can unquestionably be evaluated adequately under the treaty's criteria within the abbreviated period period provided for contradiction review. A controversial draft standard would seldom be appropriate for fast track processing.

To argue that the 30-day rule takes precedence over the time required for adequate review also exalts form over substance. The treaty in effect instructs NBs to "do your initial reviews using this economic criteria." The treaty does not say, "do your initial reviews using this economic criteria if you are able to do so within 30 days; otherwise, forget the criteria."

The fact that an NB bases a contradiction to fast track processing on evidence there are problems with the draft standard that require more time to evaluate than provided in the contradiction phase is an entirely appropriate grounds for an NB to contradict the processing of a draft standard on the fast track. The NBs' relevant duty is to "ensure" that draft standards which fail the treaty's economic criteria are not even "prepared" for a final ballot.

In any event, inadequate time to review a draft standard adequately for prohibited elements within the time period provided in the contradiction phase is indisputably within the permissible scope of a valid contradiction. Given that the TBT contemplates neither fast track procedures nor exceptions to its prohibitions against the preparation of standards that  would have the effect of creating unnecessary obstacles to international trade, plus the fact that the process contemplated by the TBT acts through consensus among member nations, an objection to fast track processing based on time needed to evaluate a draft standard for prohibited aspects should be routinely allowed.

10. Applicability of TBT exceptions

While the proponents of Ecma 376's adoption as an International Standard have yet to address the treaty's teachings, the question may arise whether Ecma 376 fits within any exception to TBT Article 2 section 2's prohibition against the processing of draft standards that would have the effect of creating unnecessary obstacles to international trade. That section provides an exception for trade-restrictive standards for "legimate objectives." The same section defines the term as follows:

"Such legitimate objectives are, inter alia:  national security requirements; the prevention of deceptive practices; protection of human health or safety, animal or plant life or health, or the environment."

To be sure, the presence of the phrase inter alia  means that the list of exceptions is non-exclusive, that there may be still other unspecified legitimate objectives. But the list of examples given have a significance that is not likely apparent to the uninitiated. Those examples are the established exceptions carved out of the various GATT treaties preserving areas of national discretion. The phrase inter alia  is not understood as a blank check for member nations to ignore the duties established by the GATT treaties.

Any other interpretation would in essence make compliance with the treaties discretionary. Governments would be free to ignore the TBT (or any of the many other Free Trade Agreements  treaties that contain the same exceptions) in any situation in which they desired. The Free Trade Agreements' recurring use of the phrase "inter alia" with similar exceptions does not authorize discretion except in compelling circumstances. The proof lies in the many World Trade Organization ("WTO") dispute resolution precedents rejecting efforts by various nations deemed to circumvent treaty obligations. The phrase inter alia  has not stopped the WTO from requiring that all nations abide by the duties established by their accession to the treaties.

Here is part of what the TBT's Preamble has to say on the subject:

"... Recognizing that no country should be prevented from taking measures necessary to ensure the quality of its exports, or for the protection of human, animal or plant life or health, of the environment, or for the prevention of deceptive practices, at the levels it considers appropriate, subject to the requirement that they are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail or a disguised restriction on international trade, and are otherwise in accordance with the provisions of this Agreement ..."

The "legitimate objectives" exception provides no escape hatch in the present circumstances. Trade restrictiveness is only permissible under the treaty in narrow circumstances where nations have recognized authority to depart from the treaty's requirements. The inclusion of the phrase inter alia  does no more than create a safety valve for compelling circumstances unforeseen by the treaty's drafters.

Put another way, the proponents of Ecma 376 might offer a trade-restrictive draft standard only for file formats needed to protect public health and the environment, to protect national security, or for some at least equally compelling circumstance. Even then, the draft standard must be the least trade-restrictive means available to fulfill such "legitimate objectives," fairly raising the issue in the present situation of whether such needs could instead be fulfilled using the existing OpenDocument ISO standard.

Moreover, the listed examples are plainly applicable only to national regulations, not to International Standards. They carve out areas of discretion for individual nations, not for international standards.

The TBT does not contemplate that a draft standard include any trade-restrictive aspects whatsoever for file format standards in the far broader office productivity software market. No exceptions apply. (I omit discussion of further language in Article 2 section 2 that is dependent on the presence of a "legitimate objective.")

C. The case for a valid contradiction stands unrebutted

The proponents of Ecma 376 as an International Standard have publicly challenged the relevancy of evidence that has been raised by the public as supportive of a NB's contradiction. They have carefully avoided even discussing the evidence in light of the only relevant legal criteria.

The largest assembly of such evidence and the legal basis therefor is published on the Groklaw legal news site's wiki, Grokdoc.  That lengthy web page makes a compelling case that Ecma 376 would create "unnecessary obstacles to international trade." It is squarely addressed to the relevant legal criteria for a contradiction.

The Ecma 376 proponents publicly admit to having found few errors in those objections (the few minor errors alleged are being evaluated and it is planned to make any corrections warranted). Microsoft and Ecma 376's apologists have yet yet to address that evidence under the correct legal criteria. Instead, they have attempted to lay down a smokescreen that the evidence cannot be considered in a valid contradiction, studiously avoiding discussion of the actual legal criteria. Their entire argument is a recognized logical fallacy, the straw horse argument premised on a misrepresentation of the evidence's relevancy.

Ecma 376 proponents do not address the economic criteria for a valid contradiction within the meaning of the controlling law, the Agreement on Technical Barriers to Trade. The relevant issue is whether Ecma 376 would have the effect of creating unnecessary obstacles to international trade.

As only one example among many gathered on the Grokdoc site, it is beyond question that Ecma 376 would have the "effect of" granting Microsoft an exclusive monopoly on the conversion of legacy Microsoft Office binary files to Ecma 376 formats. That single factor alone renders Ecma 376 ineligible for further processing as a draft standard.

In sum, the case for contradicting Ecma 376 stands unrebutted.

2. Microsoft's propaganda technique

I am also seeing some signs that Microsoft and/or its supporters have responded to the public outcry against Ecma 376's standardization in part by relying on a well-known lobbying/propaganda tactic used to counter public resistance to proposed governmental "fast track" actions, commonly referred to as a "Leave It To The Experts" campaign.

The lobbying targets are, of course, the NBs and their computer science reviewers. If so, there is a measure of irony involved because economists, rather than the computer scientists who typically inhabit the NB's relevant decision-making processes, are plainly the people whose expertise should be guiding the reviewer's work and assessing the impact of their findings. If Microsoft is in fact executing a Leave It To The Experts lobbying campaign, it appears to appeal to the the sensibilities of the wrong kind of experts. The debate is not without its comedic moments.

E. Conclusion

To conclude, those who argue that economic issues can not be raised in a valid contradiction simply do not understand that the relevant treaty says otherwise, that economic issues are the only issues that can be raised in a valid contradiction. It is high time for national standards bodies to reassess the roles of their reviewers and their criteria for voting on the JTC-1 contradiction  issue. All of the technical expertise in the world helps not a bit unless that expertise is applied responsively to relevant criteria.

The meaning of a contradiction  in JTC-1 Directives is not a question to be answered by NB draft standard reviewers applying software technical expertise. It is a meaning determined by international law. Any desired changes in that meaning can only be made made by renegotiation of the relevant treaty by national governments. It is the province of diplomats and their lawyers, not of the NBs. Moreover, if the treaty is not adhered to, the issue could become embroiled in the World Trade Organization dispute resolution process, a well-known transnational playground for the diplomats and lawyers.

It is past time for the technologists in the NBs and at ISO to summon legal counsel. The meaning of contradiction  is a legal issue, not a software issue. The quicker the technologists realize they speak outside their competency when they attempt to define contradiction and call in the lawyers, the more quickly the disagreements over Ecma 376 will be resolved in accordance with the law.

Note:

In the interests of full disclosure, the author is a retired lawyer in the U.S. no longer licensed to practice law and is a volunteer, unrecompensed member of the OpenDocument Foundation and the OpenDocument Fellowship. Nothing in this article is intended or should be understood as legal advice.
Seems like the rest of the members of the ISO are against Microsoft's XML format becoming the standard!


Jtayler
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