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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, , 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 - 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 ’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 Ð such as HTML, TXT, DOC, PDF, 1 See, e.g., http://en.wikipedia.org/wiki/File_format. Neutrality And Choice WP, RTF, UOF, ODA, 2 Enterprise Open Standards Policy (effective Jan. 13, Because governments use data and docu- Format, DocBook, and DSSSL Ð and yet the 2004),www.mass.gov/Aitd/docs/policies_standards/ope prior existence of these overlapping standards nstandards.. 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 formats by the 25 most active projects on 01182558375; Rajiv S. Shah, Jay P. Kesan & Andrew C. SourceForge.net, which hosts more than Kennis, Lessons for Policies: A Case the Burton Group underscores the rationale 100,000 open source projects.15 Based on this Study of the Massachusetts Experience, Ill. Pub. L. for multiple standards and choice, concluding Research Paper No. 07-13 (ICEGOV Dec. 10-13, 2007), and other industry efforts, Open XML and that ODF and Open XML were developed out http://papers.ssrn.com/sol3/papers.cfm? ODF can coexist even within the same soft- abstract_id=1028133. of different design considerations and priori- 9 ware application, so that documents can be Open XML’s primary design goal was to be backward ties and therefore should both be embraced by compatible with the content and functionality in billions of formatted and stored using either Open XML industry and governments.10 existing documents and to carry them forward into an or ODF.16 The Burton Group concluded that open environment. By contrast, ODF is more narrowly On the other hand, government prefer- the extensive document format translators that focused on reflecting the information created by a single ences or mandates for particular technical application (OpenOffice) and thus has more limited func- have already sprung up, combined with the standards or technologies arbitrarily force tionality suitable for simpler applications. Open XML also fact that criticisms of Open XML are rooted in includes advanced functions (e.g., robust financial for- product uniformity and vendor lock-in, dis- political “FUD” (fear, uncertainty, and doubt) mulas for ) that are not currently supported by ODF. See Ecma International, Response Document courage R&D investment, dampen competi- rather than in fact, further supports the adop- tion and innovation, and prevent governments for National Body Comments from 30-Day Review of the tion of both standards by governments and Fast Track Ballot for ISO/IEC DIS 29500 (ECMA-376), from securing the best technical solution industry.17 pp. 2-8 (Feb. 28, 2007), available at www.ecma-interna- available. According to a recent IBM/Oracle- tional.org/news/TC45_current_work/Ecma%20response sponsored report on e-government interoper- Massachusetts Should Be Lauded For s.pdf. 10 “What’s Up, .DOC? ODF, OOXML, and the Revolu- ability, “Mandating a particular technology Charting A Sensible Path Forward tionary Implications of XML in Productivity Applications” will not only prevent government from using Notwithstanding some of the criticisms it (Jan. 11, 2008), www.burtongroup.com/Guest/ the latest and the best but also consign it to has faced from certain commentators, Massa- Ccs/WhatsUpDoc.aspx (“Burton Group Report”). 11 See Report on Government Interoperability Frame- using older and perhaps outmoded stan- chusetts’ willingness to change its document works for Asia-Pacific Countries, http://www.apdip. dards.”11 Further, a recent report on interoper- format policy course mid-way to embrace net/projects/gif/GIF-Guide.pdf. ability and innovation by the prestigious Open XML based on marketplace develop- 12 Glasser, U. & Palfrey, J., Breaking Down Digital Barri- ers: When and How ICT Interoperability Drives Innova- Harvard Berkman Center concludes: “[T]he ments and user needs should be praised and tion, Harvard Berkman Center (Nov. 2007), p. 25, government-mandated approach is likely to should serve as an example to other govern- http://cyber.law.harvard.edu/interop/. perform poorly. … Not only are governments ments faced with similar situations. Fortu- 13 See Sieverding, M., Choice in Government Software generally ill-equipped to choose the most suit- Procurement: A Winning Strategy, Public Procurement nately, it has already begun to do so. In 2007 Law Review (Issue 6, 2006), at p. 338 et seq. able standard, but also tend to operate under alone, no less than six U.S. states (e.g., Cali- 14 Further, there are many other examples in the IT mar- conditions that make it difficult to respond in fornia, Connecticut, Florida, Minnesota, Ore- ketplace where competing standards coexist and pro- due time to market developments or changes gon, and Texas) and many countries around mote competition and innovation because they serve 12 distinct user requirements — notably, digital image for- in technology.” Preferential policies may the world — including Denmark, Italy, mats (e.g., JPEG, PNG, CGM); digital media formats also be per se illegal. As court decisions in Malaysia, Sweden, and Switzerland — have (e.g., MPEG-1, MPEG-2, MPEG-4, H.264); digital inter- Brazil, Belgium, and elsewhere demonstrate, rejected document format mandates and face standards (e.g., DVI, FireWire; HDMI, SDI, UDI, USB); digital TV formats (e.g., 1080i, 720p, 1080p); and preferences in software procurement policies wisely embraced a policy of choice and tech- e-mail formats (e.g., x.400, SMTP, POP3, IMAP). contravene well-established requirements and nical neutrality as the best path forward. 15 See, e.g., SourceForge, Inc., Open XML/ODF Trans- principles of equal protection and nondiscrim- Nor should ODF proponents view Massa- lator Add-in for Office, at http://source-forge.net/pro- chusetts’ decision to embrace multiple docu- jects/odf-converter. ination set out in federal or state law, constitu- 16 For example, ’s OpenOffice already supports tional provisions, and major EU Directives.13 ment formats as a setback or defeat. As a both ODF and Open XML and Corel recently released a Yankee Group research fellow, Laura DiDio, beta version of WordPerfect that supports both formats. Interoperability And Innovation Thrive In observed: “In fact, it gives them the opportu- 17 See Burton Group Report at 16 and 22. Multiple Document Format Environments 18 See Long, M., Massachusetts Embraces Microsoft’s nity to shine. They’ve been saying all along Open XML (Aug. 2, 2007) www.newsfactor.com/ In the domain of document formats, there that they’re better than Microsoft, and now news/Massachusetts-Embraces-Open-XML/ has always existed a plethora of overlapping they get the chance to prove it.”18 story.xhtml?story_id=0220002KEDPU.