Yesterday, BBC Director General Mark Thompson and other BBC representatives appeared in front of the House of Commons Public Accounts Committee. During the meeting, Dr John Pugh MP tackled him about the iPlayer. You can watch the full Public Accounts Committee meeting here (the talk of iPlayer starts about 10 minutes in).

During the meeting there is discussion of iPlayer’s total cost to the licence fee-payer - the BBC representatives are unable to give a figure, but start the bidding at £20m, excluding staff costs. Thomson gives incorrect information - that Mac and Linux versions of iPlayer have the same functionality as Windows versions - and has to change his evidence at the end. Perhaps it was this confusion that prompted Dr John Pugh MP to follow up the encounter with a letter direct to Mark Thomson today discussing platform neutrality in greater detail. A copy of this letter has been passed to the Open Rights Group. Pugh writes:

“The more fundamental issue is [iPlayer's] failure to apply open standards and be sufficiently interoperable to work fully (stream and download) on more than one platform. The BBC is funded by licence players not all of whom have or chose to use a computer running Windows XP or Vista. By guaranteeing full functionality to the products of one software vendor it is as a public body handing a commercial advantage to that company - effectively illegal state aid!”

Dr John Pugh MP has previously accused the UK government of illegal state aid by excluding Linux and Mac Users from government services such as the Department of Work and Pensions online benefits system.

The BBC could avoid accusations like this if it eschewed DRM and instead employed standard formats. The BBC has made the wrong decision about DRM in its on-demand services. DRM threatens the future of public service broadcasting in the on-demand world and the BBC Trust and OfCom should assess the long-term economic case for the way the BBC buys rights to exhibit the programmes it commissions.

The resounding message of the Olswang’s and Greenberg Traurig’s Friday Open Source Summit (PDF) was that software patents are bad for business. Bruce Perens’s message against software patents and that the European Patent Litigation Agreement (EPLA) should not become a reality was echoed throughout the day by numerous speakers to be restated once again during Simon Phipps closing keynote. The main argument was that these patents hinder software development because of their high transaction costs, and that Europe can maintain advantages by not allowing these patents (available in the US and elsewhere) on its shores. Naturally enough, there wasn’t anyone calling for the abolition of patents, only as they relate to software.

But software patents weren’t the only theme of the day.

Bruce Perens - Opening keynote

Perens is one of a handful of early and influential ‘founders’ of free and open source software (FOSS) and he gave an entertaining and informative overview of the benefits of FOSS and how they fit in with a company’s business model. The key for any business is to look at what is the “differentiating software” — the model or software that makes the business different from others. For non-differentiating software open source is key as it can help control costs while delivering a robust architecture.

Beyond his call against software patents, he suggested that the UK and Europe could use a law requiring open source software to at least be considered for (presumably) public purchasing.

Heather Meeker, of Greenberg Traurig, gave an excellent overview of the legal side of FOSS licensing.

Jim Markwith of Microsoft concentrated on issues surrounding open source in a mergers and acquisition (M&A) context. Often one of the issues is finding inappropriate (copied w/o permission) code in FOSS projects. Many of the problems that he sees in the M&A role at Microsoft are a result of poor IP management and not open source per se. As regards software patents, he only stated that Microsoft takes a different position than the other speakers.

On the GPLv3, he did note that “GPLv2 has built up a legal understanding over the past fifteen years and now v3 means that they don’t have that understanding.”

Nigel Swycher, Olswang and chair of the event, and Kat McCabe, Black Duck, both further reviewed FOSS within the M&A context. Black Duck makes a product that reviews and audits software code to make sure that it does not contain illegally copied code.

In the afternoon Jan Wildeboer, Red Hat, and Pieter Hintjens, iMatix, both further made the case against software patents and open source business models. Hintjens had the notable quote that the GPL is “an ‘ultra capitalist tool’ because it allows dual licensing a commercial option plus the GPL version.”

Dietmar Tallroth, Nokia, discussed some of the practical aspects of managing open source software through his experiences as the legal director of open source and licensing at Nokia.

David Wood from Symbian gave an overview of open source and smartphones.

John Powell, Alfresco Software, got back to one of the main themes of the conference. From the conference site:

The software development and licensing landscape has changed, and the US are perceived to be leading the way. The Summit seeks to address this imbalance.

Powell blamed the close ties and use of the English language for waves and waves of US commercial interests following a proprietary licensing model for crushing both the UK’s indigenous software industry and free and open source software development. In short, because of the lack of a language barrier, UK companies and public sector organisations bought into the FUD against FOSS and thus never got off the ground. Now however is the time for the pendulum to swing the other way and for a UK FOSS community and use to dramatically take off.

Graham Taylor, Openforum Europe, discussed open standards and mentioned that in his opinion the UK government has been largely absent when compared to its EU counterparts at European meetings on open standards, open source.

Michael Robinson, Deloitte, covered how they saved large amounts of money and introduced greater stability by introducing open source into the Oyster card system for London’s transport.

Simon Phipps, Sun Microsystems, closed the day with a slight restatement of the day’s theme against software patents. He wasn’t against them per se, however he thought that their granting should be greatly tightened so that they were very hard to get. There was still some room for their use if limited in this way.

He did however note that trade marks are the next wave of legal problems for the FOSS community and that this would be the most troublesome area moving forward. In addition, he gave a load of practical advice on using FOSS within a company and how to relate to the greater open source community.

The day was well attended by a diverse set of lawyers, academics, developers and others. A definite tip of the hat to Olswang and their partners on the event Greenberg Traurig for the day.

My interview with Sean Daly at Groklaw went online this morning:

Q: Now, let’s talk about DRM for a moment. It seems that the current situation the BBC finds itself in with the iPlayer is largely due to the choice to use DRM. My understanding is that without DRM, the rights holders of third-party producers of television programs which are leased to the BBC would withold their programs from online distribution. What do you think is the solution to this? Should those programs just be taken offline?

Becky Hogge: OK, so you’re right to identify the problem; in fact you’ve got it in a nutshell. The BBC is having to negotiate with the people who own the rights in the programs that it broadcasts, because the BBC doesn’t own all those rights. For a start, it’s bound to use 25% of its commissioning budget to commission programs from independent producers, or “indies” as they’re called in the industry. And those indies, most of them, keep the rights, and, like you say, lease them to the BBC for broadcast in a certain window.

Equally, some of the BBC content that the BBC produces itself has got all sorts of complicated rights issues associated with it. That’s when the actors, and the cameramen, and all the people that go into it don’t necessarily sign over all the rights to the BBC in perpetuity. So this is a really, really difficult problem for the BBC. But at the Open Rights Group, we think that the BBC needs to be tackling this problem head on. Because if it doesn’t, it’s going to keep having to use digital rights management. And digital rights management is slowly but surely going to eke away the way it can fulfill its public service remit.

This isn’t just about a small group of Linux users who can’t access iPlayer and are getting stroppy about it. Using DRM is going to push the BBC into more and more of a commercial environment. And what’s more, DRM is always going to lead to the kind of platform neutrality issues that the BBC is experiencing now. If you think about it, Apple iTunes, which uses the Apple DRM, is already being accused of distorting the market by regulatory bodies inside the EU. And the BBC is always going to face these issues. Now, what it could do is it could start now to think creatively about how it’s going to negotiate with indies and other rights holders in the future.

Read the interview in full here. This morning, I’ve been at the BBC Future Media and Technology building in White City, recording a podcast for BBC Backstage together with some of the technical team behind iPlayer and Mark Taylor from the Open Source Consortium. I’ll post a link to that as soon as it’s up.

Update: Here’s the BBC Backstage podcast.

It’s taken a while to pick apart Neelie Kross’s announcement that Microsoft have accepted the conditions of the European Commission’s 2004 ruling on abuse of market position. The European Commissioner for Competition Policy stated at a press conference on Monday that:

“Put together, these changes in Microsoft’s business practices, in particular towards open source software developers, will profoundly affect the software industry. The repercussions of these changes will start now and will continue for years to come.”

Yet it is not clear whether the news for open source is all that good.

Groklaw rightly points out that the €10,000 one-off fee for secret interoperability information “to be paid by companies that dispute the validity or relevance of Microsoft’s patents” is out of reach of most of the open source community. And the options the European Commission lay out for open source developers implementing patented interoperability information are “design around these patents, challenge their validity or take a patent licence from Microsoft.”, when, as Groklaw points out “The GPL can’t take a license for a patent, period.”

The FFII are one group not happy with the decision. In a statement issued yesterday, Benjamin Henrion, FFII representative in Brussels, accused the commission of misunderstanding the challenges faced by open source:

“The Commission does not understand how open source works. It naively accepted Redmond’s assurances that they will play fair. It is a sham. They have planned for years to control the open source economy through software patents.”

Business Week have a range of reactions from elsewhere in the software community, including the Free Software Foundation Europe and the European Committee for Interoperable Systems. As they put it, “The open-source software sector isn’t popping open champagne bottles just yet.”

On Tuesday, John Pugh MP led an adjournment debate on IT software procurement, where he accused the UK government of excluding Linux and Mac Users from government services such as the Department of Work and Pensions online benefits system.

“The Government are spending public money, and in doing so, it is difficult to see how they are not also breaching state aid rules and providing illegal state aid. If someone cannot access benefits online without using a Windows-based computer, as is currently the case, I do not see how the Government can be doing anything other than involving themselves in illegal state aid.”

Angela Eagle MP, speaking on behalf of the Treasury, neatly side-stepped Pugh’s accusations, stating that “the Government must… provide software that is relevant to the computers that most people in the UK have” and that avoiding market distortion was “up to the people contracting”. The debate is reminiscent of concerns about the BBC’s Microsoft-only iPlayer raised by the Open Source Consortium, the Free Software Foundation, the Open Rights Group and many others over the Summer.

Also during the debate (well-spotted, Glyn!) it looked like Andrew Miller MP might have raised the spectre of Microsoft’s failed OOXML standard, when he asked:

“Would it not help in the quest for openness if the British Standards Institution were to follow the lead in other parts of the world and make open source XML (sic) one of the standards to be applied throughout the world? It would mean that people working outside the Microsoft sphere could have access to the code, and it would help the world in future-proofing big projects such as the British Library archives.”

You can read a full transcript of the debate here.

John Pugh MP will today lead a Westminster Hall debate on government software procurement. The Liberal Democrat MP for Southport (and veteran speaker at ORG’s e-voting events) is a well known advocate of free and open source software. Yesterday, he released the results of a survey he had conducted which showed that many local authorities had no real idea how much money is being spent on IT within their schools. From the Open Schools Alliance press release:

“The survey also found that while almost 50% of Local Authorities are using some form of open source software within their schools there is no apparent systematic strategy to get best value from such procurement. Only 3 of the respondents, Cumbria, East Yorkshire and Lancashire, offer an open source solution as a standard learning platform throughout their area.”

You can watch the debate live from Westminster Hall - it starts at 12.30.

The Open Schools Alliance are hosting an event called “Success in Education” to look at issues surrounding the use of Free and Open Source software in education in Liverpool later this month.

This morning, the European Court of First Instance announced that it would uphold the European Commission’s decision that Microsoft has abused its dominant market position.

The Court ruled that Microsoft did this by refusing to supply and authorise the use of interoperability information and by tying together the Windows client PC operating system and Windows Media Player. Although the court essentially upheld the Commission’s decision, it did annul certain parts relating to the appointment of a monitoring trustee, which it say have no legal basis in Community law.

ORG welcomes the Court’s decision, which is good news for consumers and business alike. As ORG advisory council member Ian Brown points out over at Blogzilla:

“The network effects in many digital markets make competition law more vital than ever if we are to see vibrant free markets. A loss today for the Commission’s competition directorate would have been disastrous, forcing them to tread much more carefully in regulating digital monopolists.”

Groklaw has good analysis and pointers to reactions from the Free Software Foundation, Samba and others. Text of the full judgement is available here; initial reactions from Microsoft are available here.

ORG’s Becky Hogge will be on the BBC1’s one o’clock news today discussing the decision with the their technology correspondent, Rory Cellan-Jones.

…And it’s pretty lacklustre. Over 16,000 people signed the petition, demanding that the BBC stop excluding license fee payers who don’t have computers running Microsoft software from its new on demand TV service. But Number Ten are apparently satisfied with the BBC Trust’s commitment that the iPlayer would be cross-platform “as soon as possible”, and the six-month review process the Trust has put in place:

“…the Trust conducted a Public Value Test on the BBC Executive’s proposals to launch new on-demand services, including BBC iPlayer. This included a public consultation and a market impact assessment by Ofcom. In the case of the iPlayer, following the consultation, the Trust noted the strong public demand for the service to be available on a variety of operating systems. The BBC Trust made it a condition of approval for the BBC’s on-demand services that the iPlayer is available to users of a range of operating systems, and has given a commitment that it will ensure that the BBC meets this demand as soon as possible.”

As the Open Source Consortium have argued, what the Trust’s provisions fail to acknowledge is the significant competitive advantage this lag time gives the purveyors of the only operating system currently supported by the iPlayer - Microsoft.

The Open Rights Group believes that the BBC should release content that has been bankrolled by license-fee payers in standard formats that are accessible to all.

Read the full petition response here. Read our submission to the BBC Trust’s consultation on on-demand services here.

DRM protesters Defective by Design braved the drizzle today to make their feelings known about the BBC iPlayer. I went down to join in, and found Hazmat-suit clad protesters calling for the BBC to reconsider its decision to use Microsoft DRM on the new online catch-up service, released in beta at the end of last month. You can see more photos of the protest in the Open Rights Group Flickr photo pool.

The 10 Downing Street iPlayer petition now has over 15,000 signatures. If you haven’t already signed - hurry: there’s less than one week left before it closes!

The House of Lords Science and Technology Committee have published their fifth report today, which makes a variety of recommendations to legislators, the police, businesses and citizens to improve personal security on the internet. The full report is now available to download.

Much of this morning’s media coverage is focussing on recommendations to create a dedicated e-crime unit, or to develop BSI kitemarks for security in internet services. But the report makes other recommendations too. For example, the Committee recommends introducing some kind of liability regime for software vendors, although it recognises the potential side effects this might have on innovation, or on open source software. The report sets up an interesting debate on this issue between some of the Committee’s expert witnesses - including Bruce Schneier, Jonathan Zittrain and Alan Cox - which is well worth reading (go to para 4.25).

The report also makes some radical recommendations for network level security, suggesting that Internet Service Providers’ traditional defence against liability for bad traffic on their networks - that they are “mere conduits” - should be looked at again. But any re-examination of ISP liability needs to be handled very carefully. As notice and takedown practices tied to suspected copyright infringement have shown, ISPs are not best placed to police the network, and can be expected to react to this kind of pressure by knocking users off the network without appropriate levels of investigation into those users’ actions.

Other recommendations include more research funding for computer security groups and a re-examination of the Computer Misuse Act. The Committee also adds its voice to the chorus of people calling for greater powers for the Information Commissioner’s Office. While such a detailed, considered and well-informed report should be welcomed, the digital rights community needs to pay close attention to how policy makers choose to interpret its recommendations.

More analysis of the report here and here.