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16-02-15 Willkie Buono CorporateThe Metropolitan Counsel® www.metrocorpcounsel.com Volume 16, No. 2 © 2008 The Metropolitan Corporate Counsel, Inc. February 2008 The Power Of Choice: Massachusetts Wisely Embraces Multiple Document Format Standards To Drive Greater Competition And Innovation Francis M. Buono closely than in Massachusetts. issued a report entitled “Open Standards, From the moment certain Massachusetts Closed Government: ITD’s Deliberate Disre- and McLean Sieverding government IT officials set in motion a plan to gard for Public Process,” in which it sharply mandate the use of the OpenDocument For- criticized the ITD for: (1) releasing the ETRM WILLKIE FARR & GALLAGHER LLP mat (“ODF”) as the default format for gov- despite public testimony that ODF may impair ernment documents, to the exclusion of other A “document format” (also known as a IT accessibility for thousands of workers with formats, the thorough and very public vetting “file format”) is a particular way to encode disabilities; (2) failing to conduct a cost analy- of the goals, potential impact, and resolution information for storage in a computer file.1 sis or develop implementation documents of the plan has caused many to question the Numerous document formats exist for encod- prior to issuing the ETRM; and (3) issuing appropriate role that government should play ing and storing the same type of information provisions in the ETRM relating to public in selecting and/or excluding technology solu- in word processing, spreadsheet, presentation, records management without the requisite tions (standards-based or otherwise), and on and other document types. Such document statutory authority.4 These shortcomings were what basis. Fortunately for Massachusetts and formats can complement each other by offer- its citizens, the goals of technical neutrality, later detailed in a comprehensive report by the ing different functionality, compete with one 5 choice, and inclusiveness prevailed, and other Auditor of the Commonwealth. another when there is functionality overlap, or document formats were permitted. The time- • In August 2007, following public com- both. For example, the latest version of Word- line of key events in this Massachusetts ment, the ITD added Open XML to the list of Perfect reportedly supports more than 60 doc- debate is as follows: approved standards in version 4 of the ETRM, ument formats. For these reasons and those • On January 13, 2004, marking a dra- defeating calls for an exclusive ODF mandate discussed below, consumers and governments 6 matic shift in policy, the Information Technol- by IBM, Sun Microsystems, and others. benefit from the existence of multiple docu- ogy Division (“ITD”) of the Massachusetts Massachusetts officials explained in a state- ment formats. Yet, within the last few years, Office for Administration and Finance ment that concerns about competing document based primarily on increasing efforts by gov- released its Enterprise Open Standards Policy standards were “outweighed substantially by ernments to adopt electronic document initia- requiring, inter alia, that all prospective IT the benefits of moving toward open, XML- tives, and the corresponding lobbying efforts investment must comply with the open stan- of numerous vendors trying to gain a compet- based document format standards. … The dards referenced in the ITD’s Enterprise Tech- itive advantage by promoting their preferred ETRM articulates a vision of a service-ori- nology Enterprise Model (“ETRM”) (a standards/products, a highly charged debate ented architecture where information can be statewide IT framework for 80,000 end-users has arisen regarding the wisdom of govern- shared, reused and repurposed based on XML in the executive branch), and that all govern- ments to select particular document formats to technologies. ... The availability of open, stan- ment agencies “integrate open standards com- the exclusion of others. Nowhere has this dardized XML document formats without ven- pliance language in all IT bids and dor bias will move us further along in realizing debate been followed and scrutinized more 2 solicitations.” this vision.”7 • In September, 2005, following more Some commentators have characterized than a year and a half of contentious debate Francis M. Buono is a Partner at Willkie Massachusetts’ decision to broaden the scope over the new open standards policy and the Farr & Gallagher LLP. Mr. Buono provides of permissible document formats to include strategic and legal advice in the areas of intel- related document format issues, the ITD Open XML as a failure.8 Others, however, lectual property and technical standards-set- released version 3.5 of its ETRM,3 which set believe (consistent with our view) that, as the ting to IT organizations. In addition, Mr. forth the acceptable document formats in Buono assists companies with their telecom- which data could be presented and captured consideration of the document format issues in munications regulatory issues before the Fed- by government agencies. This version of the Massachusetts became more transparent and eral Communications Commission. McLean ETRM effectively permitted the use of only democratic, government officials ultimately Sieverding is a Senior Associate in the Wash- ODF for government word processing docu- arrived at a more rational conclusion that per- ington, D.C. office of Willkie Farr & Gal- ments and excluded Microsoft’s XML-based mits multiple, interoperable standards to serve lagher LLP, where he focuses on telecom- document formats (“Open XML”). the unique needs of various users, which will munications and intellectual property law and • In June, 2006, the Massachusetts Senate lead to much greater choice, competition, and policy issues. Committee on Post Audit and Oversight innovation. Please email the authors at fbuono@willkie or msieverding@willkie with questions about this article. Volume 16, No. 2 © 2008 The Metropolitan Corporate Counsel, Inc. February 2008 Governments Should Strive For Technical standards – such as HTML, TXT, DOC, PDF, 1 See, e.g., http://en.wikipedia.org/wiki/File_format. Neutrality And Choice WP, RTF, UOF, ODA, Compound Document 2 Enterprise Open Standards Policy (effective Jan. 13, Because governments use data and docu- Format, DocBook, and DSSSL – and yet the 2004),www.mass.gov/Aitd/docs/policies_standards/ope prior existence of these overlapping standards nstandards.pdf. ments in a number of different ways and, in 3 Enterprise Technical Reference Model - Version 3.5 fact, often have to deal with ensuring back- has never been a barrier to interoperability or (effective Sept. 21, 2005), www.mass.gov/Aitd/docs/ ward compatibility with existing legacy sys- to the introduction or evolution of newer, policies_standards/etrm3dot5/etrmv3dot5intro.pdf. tems, the best public policy approach is one innovative document format standards.14 4 A Report of the Senate Committee on Post Audit and Indeed, had the view of “only one document Oversight, Open Standards, Closed Government (June that allows government agencies to choose the 2006), http://mass.gov/legis/bills/senate/st02/ document formats that best serve their various format standard” prevailed, ODF could never st02612.htm. needs. A policy of choice encourages compa- have become an ISO standard in the first 5 Report on the Examination of the Information Tech- place, and ISO would not have accepted Open nology Division’s Policy for Implementing the OpenDoc- nies to vigorously compete for the govern- ument Standard, No. 2006-0884-4T (Sept. 20, 2007), ment’s purchase decision, which, in turn, XML from Ecma as a candidate for additional www.mass.gov/sao/200608844t.doc. fosters greater innovation, increased customer standardization. 6 Enterprise Technical Reference Model; Service-Ori- Nor does the endorsement of multiple doc- ented Architecture (ETRM v4.0), www.mass.gov/ choice, and lower costs. It also allows govern- ?pageID=itdsubtopic&L=4&L0=Home&L1=Policies%2c ments and customers to avoid becoming ument format standards signal a likely reduc- +Standards+%26+Guidance&L2=Enterprise+Architec- beholden to one technology, one standard, one tion in interoperability. With respect to ture&L3=Enterprise+Technical+Reference+Model+ company, and would alleviate any concerns software in general, and document formats in +Service-Oriented+ Architecture+(ETRM+v4.0) particular, translators and other means are &sid=Aitd. over perceived proprietary control by allow- 7 Statement on ETRM v4.0 Public Review Comments ing governments to turn to other formats were equally viable to ensure interoperability and (Aug. 1, 2007), www.mass.gov/?pageID=itdterminal&L an individual company to attempt to circum- preclude the need to mandate one particular =4&L0=Home&L1=Policies%2c+Standards+%26+Guid- solution. Notably, the freely available ODF- ance&L2=Enterprise+Architecture&L3=ETRM+v.+4.0+P vent the openness of a standard through refer- ublic+Comments+Information&sid=Aitd&b=terminalcon- enced proprietary specifications or future Open XML Translator, sponsored by tent&f=policies_standards_etrmv4_etrmv4dot0state- modifications to the standard. This is particu- Microsoft to facilitate interoperability ment&csid=Aitd. 8 See Andrew Updegrove, Massachusetts Falls to larly so with Open XML and ODF, which between ODF and Open XML, has more than 385,000 downloads and has become one of OOXML as ITD Punts (Aug. 1, 2007), http://www.con- serve different user needs.9 Indeed, a recent sortiuminfo.org/standardsblog/article.php?story=200708 independent report on document
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