OpenStandardsPanel

Sat, 03 Feb 2007 19:54:28 GMT

Open Standards International Symposium, Yale Law School's ISP, February 3, 2007

Sat, 03 Feb 2007 19:55:16 GMT

The standards space is a perfect example of Lawrence Lessig's point in Code2.0 about the many ways in which "law" are made on the Internet. The power of West Coast Code, especially when burned into a standard, is extraordinary. The interplay of law, code, markets, and norms demonstrates how this power is expressed.

Sat, 03 Feb 2007 19:57:24 GMT

Law is being made, all the time. Sometimes this law is being made in the open, sometimes in the shadows. Rarely are all interests equally given voice in the process. These facts themselves may be problems from the perspective of the regulator.

Observations by earlier panelists, which seem right to me: 1) the standard setting process is generally out of synch with law; 2) IPR, as applied, is a major potential barrier to effective, open standards processes; 3) customers are plainly crying out for interoperability -- digital media, digital identity, web services as examples.

Sat, 03 Feb 2007 19:58:33 GMT

We should separate two issues: 1) the process of setting standards, which includes whether the process is "open" or not; from 2) the outcomes that we seek to accomplish through whatever means are used to affect the development of software, applications, and so forth.

Sat, 03 Feb 2007 20:00:40 GMT

1) The process question is whether or not an "open" standards process is intrinsically important.

Sat, 03 Feb 2007 20:05:41 GMT

We've framed out some ideas as to processes in the Roadmap for Open ICT Ecosystems, developed by a group of government officials, industry experts, and academics.

Sat, 03 Feb 2007 20:03:02 GMT

Openness is plainly better than proprietary. That's true if key aspects of openness are present in the process:

Sat, 03 Feb 2007 20:01:51 GMT

We need to define an open process more precisely -- at least to determine what the attributes are -- before we can say that an "open" process is necessary for standards-making from a legal perspective. Possible attributes:

Sat, 03 Feb 2007 20:03:24 GMT

- Transparent

Sat, 03 Feb 2007 20:03:20 GMT

- Inclusive: John Morris of CDT has a nice paper on this theme, from the perspective of getting the public interest represented at the relevant tables. (Eddan asks the right question in Q&A of John M.: how exactly can the public be best involved and participate in the 600 (?) SDOs? And also, as Andrew Updegrove notes, there's an important distinction between the ability for stakeholders to participate and the extent to which all those stakeholders in fact do so. He suggests an open framework at all levels where possible, such that people can participate if they have the time and the inclination.)

Sat, 03 Feb 2007 20:03:39 GMT

- Ample opportunity for consensus to be reached by stakeholders

Sat, 03 Feb 2007 20:03:28 GMT

- Adjustable, over time, through a fair process

Sat, 03 Feb 2007 20:07:52 GMT

The findings of this report put this topic in the context of an Open ICT Ecosystem:

"An open ICT ecosystem should be:

Interoperable – allowing, through open standards, the exchange, reuse, interchangeability and interpretation of data across diverse architectures.

User-Centric – prioritizing services fulfilling user requirements over perceived hardware or software constraints.

Collaborative – permitting governments, industry, and other stakeholders to create, grow and reform communities of interested parties that can leverage strengths, solve common problems, innovate and build upon existing efforts.

Sustainable – maintaining balance and resiliency while addressing organizational, technical, financial and legal issues in a manner that allows an ecosystem to thrive and evolve.

Flexible – adapting seamlessly and quickly to new information, technologies, protocols and relationships while integrating them as warranted into market-making and government processes."

Sat, 03 Feb 2007 20:06:59 GMT

2) The harder question may well be the question as to substance.

Sat, 03 Feb 2007 20:07:27 GMT

What are we after when we talk about open standards, or the standards-making process generally?

Sat, 03 Feb 2007 20:10:11 GMT

Two follow-ups to our Open ICT Ecosystems work: a) what really do we mean by some of these key terms, such as Interoperability and b) is the only way to get to such an ecosystem through open standards? Might we achieve these substantive goals equally well, or better, through another process than an open standards process? Would it be just as good, or not, if the process were not an open standards process?

Sat, 03 Feb 2007 20:11:53 GMT

Our current work involves drilling down on the topic of Interoperability. Some of the key attributes of interoperability are its relationship to innovation, consumer choice, value, and quality of functionality.

Sat, 03 Feb 2007 20:14:20 GMT

Jonathan Zittrain has a related theory: what we are really after in this space is Generativity. In his words: "The generative capacity for unrelated and unaccredited audiences to build and distribute code and content through the Internet to its tens of millions of attached personal computers has ignited growth and innovation in information technology and has facilitated new creative endeavors."

Sat, 03 Feb 2007 21:37:53 GMT

Another possibility, from Jack Balkin's work on democratic culture: "free speech values—interactivity, mass participation, and the ability to modify and transform culture—must be protected through technological design and through administrative and legislative regulation of technology."

Sat, 03 Feb 2007 20:18:22 GMT

Mapping: a key challenge is to determine how the process maps to the substance. Is one process -- open standards, or otherwise -- more likely to result in other public policy goals that we seek to vindicate?

Sat, 03 Feb 2007 20:16:48 GMT

How is interoperability, or generativity, or a democratic culture, best accomplished? Possible approaches could be open standards; non-open standards processes; innovation within a single firm; innovation within multiple firms who work together, through joint venture or otherwise; through classic regulation, which might include antitrust/competition law, intellectual property law, and so forth.

Sat, 03 Feb 2007 20:22:06 GMT

My view: open standards may well be a great way to get to, or to preserve, a generative Internet. Open standards may even be the best way to go in many ICT contexts. I am skeptical, though, as to whether we've established clarity as to what such an "open" standards-setting process in fact looks like. And I think that we should keep an open mind as to the extent to which other modes of regulation may well achieve interoperability, consumer choice, value, and quality of functionality -- with a view, ultimately, toward a careful mapping between optimal processes and desired public policy outcomes.