IfG.CC -
Institute for eGovernment

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 ... 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".

Looking closely at legal language

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.

A few additional issues

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.

Quelle: NewsForge, 27.01.2004