The RAND issue

The issue of standards licensed under RAND (reasonable and non discriminatory) terms has been key to the ongoing Microsoft anti-trust negotiations with the Commission. As part of its anti-trust remedies, Microsoft has been required to license Windows communications protocols, and so far has only licensed them under RAND terms, meaning they can't be implemented in open source projects such as Samba. Open source groups and the Commission have been pushing Microsoft to use non-RAND terms.

Lueders said the report's recommendation to use tax credits to encourage open source development "seems extreme", since it would distort the market and would be difficult to enforce. In any case, open source developers get enough economic encouragement as it is, he wrote, since, as the report notes, more than half of open source developers now earn income from their open source activities.

"With this in mind it is hard to see the need for considering the development of FLOSS as a 'charitable donation to society', as suggested by the report," Lueders wrote. Instead, the ISC Europe recommends allowing developers using public funds to choose what type of licence to use.

Like proprietary standards, intellectual property rights (IPR) shouldn't be tinkered with, Lueders said. "Many of the proposed policy recommendations as identified within the report could further weaken IPR throughout Europe, potentially deflating venture capital levels and EU innovation," Lueders wrote.

All lobbyists are not the same

ISC shares its physical address -- 6 Rond Pont Schuman in Brussels -- with another lobbying group, CompTIA, which was one of the main groups lobbying for the controversial patent directive thrown out by the European Parliament last year. CompTIA has also lobbied against measures in favor of open standards and anti-trust measures against Microsoft. Lueders is also European head of CompTIA.

CompTIA justified its support for the failed patent directive on the grounds that it would only make minor adjustments to the European patent system, such as making it more consistent. Critics of that directive said it would have made software patents widely enforceable in Europe, leading to U.S.-style software patent warfare. The Commission is currently pushing a measure called the European Patent Litigation Agreement (EPLA) that critics say would have a similar effect. CompTIA is in favor of the EPLA.

In the ISC letter, Lueders criticized the Commission for giving the ISC only 10 days to respond to the report. "From this, one might surmise that the Commission is intolerant to opposing comments," he wrote. He accused the Commission of engaging in a "closed process" that limits input from dissenting points of view: "We perceive this ironic lack of transparency - i.e., open source but closed process - as becoming more widespread."