GeekPAC

Here’s the hearing testimony of opposition to AB 1668, led by Microsoft:

After watching the full video of the committee proceedings - and I must note that they debated AB 1668 for a full hour - there are a few things to note:

1. The arguments against can be broken down into a couple of categories:
   • Sun is doing this to give themselves an advantage
   • proponents of ODF have stifled Microsoft’s efforts with standards bodies
   • The market is addressing the issue anyway, so legislation is unnecessary
2. Just before the hearing, apparently in last-minute negotiations with the committee chair, Arambula, it appears that there were some amendments to the bill. The brunt of this is that the scope of the bill has now been reduced to a “pilot project” involving the state CIO, and a couple of other state agencies. While somewhat disappointing, it’s not unexpected.
3. Microsoft is fighting this, and all state initiatives, hard. This is a pitched battle, and they’re bringing all of their ammo. I still say it’s in their best interest to go with the flow, but they don’t appear to listen to me :)
4. The final vote, 4-2, was along strict party lines. It’s disturbing to me that the Republicans on the committee don’t see the merits of the issue. It also makes me wonder where Microsoft is focusing its lobbying efforts.
5. Bonnie Garcia (R-80) is a problem. Somebody needs to do something about her. All she did was talk FUD on unrelated issues, shouting about IT projects gone bad, showing a wholly uneducated view of the subject.
6. The chair, Arambula, seems well-intentioned but doesn’t really get why this is important. He seems hesitant, as the last-minute amendments showed.

Regarding the arguments against, here’s what we need to educate people about:

1. ODF does not have to be the only format. If OOXML, Microsoft’s recent standards entry, is accepted by the ISO, then there will multiple formats to choose from.
2. All arguments about Sun’s advantages from the state adopting open formats are null and void. There are multiple implementations of ODF, and there will be multiple implementations of OOXML. Not to mention, Microsoft was free to jump on board the ODF train at any time and refused to do so. They should be held accountable for that and asked why.
3. The 3rd argument is trickier, and it appeals to certain libertarian-leaning IT folks. The bottom line, however, is that the market is not addressing this issue - there is still an undue barrier to entry for ISV’s because of closed file formats.

One of the more disappointing aspects of the hearing is that none of the bill’s proponents made the moral argument - it’s the right thing to do because government should not be in the business of handing competitive advantages to businesses. I don’t understand why this argument wasn’t made, particularly when the bill’s opponents made the moral argument against, eg. “it’s wrong to oppose free markets,” “government shouldn’t mandate competitive advantage,” etc.

I also don’t understand why no one pointed out that Microsoft has been free to participate in the standards body process for ODF and has chosen to go their own route, instead. I understand why Sun and others want to make the issue less about ODF, but someone needs to call Microsoft on the fact that their arguments are completely disengenuous.

EDIT: I’m currently editing the JEDE committee hearing video and will post snippets in a more open format later.

The California open formats bill, AB 1668, passed its first hurdle yesterday after a hearing before the JEDE (Committee on Jobs, Economic Development, and the Economy). The committee voted by a 4-2 margin to “…pass as amended and be re-referred to the Committee on Appropriations”. I’ll have more info tonight on what exactly this means and what the next steps are.

There’s a video you can watch of yesterday’s hearing. Of course, the video is in the closed Windows Media format. Oh, the irony ;)

EDIT: Thanks to the Experimental Space blog for the video link.

In this blog post, Walt Hucks absolutely destroys Microsoft’s propaganda against AB 1668. If you know of anyone on the fence about this issue, direct them to that one page. Some choice quotes:

While I support the use of XML-based files for these documents, you have to admit that California did not get a choice as to whether the state was going to be required to purchase all new software and rewrite all of its custom software. This is what happens when one company controls the standard.

Absolutely. Everyone who complains about how much this will cost to rectify merely underscores the central point - that our government is at the behest of a single organization. Why do we allow this, especially now that there *is* another choice?

Because of this, Microsoft can make minor, incompatible changes every two to three years, which forces you to buy the newest version of their software when the existing software worked fine until they broke compatibility.

And therein lies the rub - it’s all about control.  Microsoft is afraid of losing its control (and market position), and you can predict all of its actions with respect to this issue from that simple assumption.

I have more reasons for being concerned with this issue, but more on that this weekend.

You can see the amended file here. According to that, it was amended on April 11. There are some semantic changes, such as replacing “open document software” with “use of approved open file format software.” Also changed is any reference to “Department of Technology Services.” That has been replaced with “State Chief Information Officer.”

The biggest change, however, is in Section 1 (a)(3):

(3) Fully and independently implemented by multiple software providers on multiple platforms without any intellectual property restrictions for necessary technology. An “intellectual property restriction” does not include a right retained by the holder of a patent or copyright to terminate a license or covenant with any person or entity that brings a claim of patent or copyright infringement against the holder.

This compares to the previous version:

(3) Implemented by multiple vendors.

From my non-lawyerly point-of-view, I can only see this as an attempt to clarify things, but I’m curious as to what prompted the change. Can anyone provide legal analysis?

EDIT: After some searching, I found this blog entry by Andy Updegrove. It shows that Texas uses similar language in its open format bill introduced earlier this year. The difference being that the changes outlined above seek to specifically define “intellectual property restriction.”

View the bill showing all changes here.