Last week I encouraged Google to rethink their VP8 open sourcing patent strategy and

“do the right open standards thing — join and contribute to responsible standards groups that are working to solve the royalty-free open standards need.”

The blog was picked up in Simon Phipps’ ComputerWorld blog, ZDNet, The Register, LWN and elsewhere.

At one level, this is a classic debate about what is “open” and what should be its hierarchy of values, priorities, and even basic definitions.

But is a “de facto” standard the same as an “open” standard?  No, at least not in the definition of open standards of OpenForum Europe, of which Google is a leading member.

But there is more to consider.  Google is including WebM in the next version of Android and rules Android device makers with a strong hand, necessarily playing favorites to steer the Android ship. So the message must be clear to Android device makers, suppliers, and wannabes to get on the WebM bandwagon.  And though Google is known as tough with patent trolls, Android device makers appear to have been either left to fend off patent attacks themselves, cut deals, or perhaps be quietly aided in patent litigation defense.

All commercially rational choices in the crazy, hard-nosed, twisted global mobile patent wars.  After all, look at where the patents came from in MPEG LA subsidiary MobileMedia’s law suits against Apple, HTC, and RIM (Nokia and Sony) and HTC’s counter suit against Apple (AMD through Saxon).

So is the net-net simply “until you take open source and put it in a product you can’t get sued,” so just watch the big boys force each other to take, or cave in to, patent risks in order to get to the head of the line for a promising platform?  And just hope in the meantime that royalty-free open standards for the Open Web escape cannon fodder, collateral damage, or sell-out status in the smart phone patent wars?

Unfortunately, patent hold-up gambits thrive on adopt-first-ask-questions-later scenarios of the sort Google seems to be arm-twisting for here.  Standards groups, regulators, and industry continue to grapple with this challenge.   See yesterday’s FTC/DOJ/PTO workshop and the EU’s draft guidelines for horizontal cooperation agreements that mention that “[t]here should be no bias in favour or against royalty free standards, depending on the relative benefits of the latter compared to other alternatives”.

But if vendors ignore open standards altogether, we all lose.


According to CNET, the W3C is taking the position that WebM/VP8 needs to go through a royalty free standards process:

“WebM/VP8 has the potential of providing a solution for the baseline video format of HTML5. To be seriously considered by the W3C HTML Working Group, the specification would need to go through a standards group and be developed under RF [royalty-free] licensing participation terms,” said Philippe Le Hegaret, leader of Web video work at the W3C, in a statement. “W3C remains interested in having a video format for HTML5 that is compatible with the W3C Royalty-Free Patent Policy.”

Much of the initial commentary on Google’s open sourcing of the VP8 codec it acquired in purchasing On2 has breathlessly, and uncritically, centered on the purported game-changing impact of the move.

But unfortunately, these commentaries miss an essential point that Google has studiously avoided mentioning the need to standardize royalty free codecs (not just release an open source snapshot).

But since forward motion is good simply because it is forward motion, shouldn’t one hesitate to look this gift horse in the mouth?

Unfortunately, in the case of multimedia codecs and technologies, ignoring open standards and instead presenting open sourcing as a fait accompli solution just works to the detriment of the entire open community.

The open Web needs royalty free standards (true, multi-stakeholder run standards, not unilateral actions) — that is its essential genius.  And without them, proprietary, vendor-controlled projects, even those that self-label as “open”, do little good and more likely more harm than good.  We all have the right to expect, and demand, that the Web’s current beneficiaries and leaders stay true to this fundamental open standards proposition, and not just forget it when convenient.  And this includes Google.

It is well known that many experts consider it now feasible to standardize serviceable royalty-free codecs.  MPEG (the standards group, not the unaffiliated license administrator MPEG LA) has even put out a resolution to that effect, and IETF has recently launched a royalty free codec activity in a similar spirit.  Google should get on board on this important trend, not undermine it with studied avoidance.  So far they have not.

It is important to understand that patent claims are typically handled under confidential non-disclosure agreements.  So unless there is a forcing function (litigation or standardization-required disclosure and review), there is no effective way to know who is actually claiming, and who is paying, what.  And there are documented cases of this going on for literally years.  So leaving VP8 code out in the open with nothing but a mutual non-assert license leaves the patent issue not only unaddressed, but up for capture by those with uncharitable agendas, and on their turf and time frame (let’s at least hope that’s sooner rather than later — but remember, forming patent pools rarely disclose all their patents up front).

Not a smart move, and hopefully one Google will realize the error of and correct quickly (here’s a useful cover story: we intended to smoke out patent holders all along, and we were going to get around to working with standards groups when we had the chance).  Contributing VP8 to a standards group with a strong patent disclosure policy would be a good corrective move; it would force lurking patent holders to come fully into the public. Not perfect, but a step forward.

Google’s open sourcing of VP8 is very different from Sun’s Open Media Stack codec work, and for that matter other responsible open video initiatives, which have based their work on identifiable IPR foundations, documented their patent strategy, and have been willing to work with bona-fide standards groups to address and resolve IPR issues.  When companies like Google ignore standards and go on their own in such important areas as video codec standards, they just undermine the very standards groups the open Web needs to thrive and grow.

We’d never accept a brand name company unilaterally declaring control of the next version of TCP/IP, HTML, or any other of a host of foundational Internet and Web standards simply by open sourcing something they’d bought.  Codecs will also be such a foundational component, a critically important one.  Just because the technology of codecs might be less familiar than some other technologies is no reason to abandon the royalty-free standardization philosophy that has built the Web.

Certainly not based on the complete feel-good-marketing non-explanation for this radical abandonment that Google has offered so far.   Because patent pool licensing is out of control?  No argument about that from me (or antitrust complainants Nero, VIZIO, and others).  Because Google “must have done its patent homework”?  OK, if so why not hand that homework in as a contribution to a standards group where it could get some expert scrutiny?

So I would encourage Google to do the right open standards thing — join and contribute to responsible standards groups that are working to solve the royalty-free open standards need.  Be a part of the royalty-free, open-standards solution, not part of the problem.


Tip of the hat to Xiph’s leader, Chris Montgomery, for good tongue-in-cheek humor:


Not to confuse: Xiph is wholeheartedly supporting WebM, but another interesting remark by Montgomery:

“But Monty isn’t worried about the MPEG-LA suing him or anyone at the WebM Project.

“The recent saber-rattling by Jobs felt more like a message to his own troops than
a warning shot to ours,” he says. “MPEG itself has always has an internal contingent
that has pushed hard for royalty-free baselines from MPEG, and the missives about
video codecs and patents were probably meant for them, not us.”

MPEG — Working Group 11 of  ISO/IEC JTC 1/SC 29 — has issued a resolution seeking active participation in developing a Type-1 (royalty-free) video coding standard.

“Given that there is a desire for using royalty free video coding technologies for some applications such as video distribution over the Internet, MPEG wishes to enquire of National Bodies about their willingness to commit to active participation (as defined by Section of the JTC1 directives) in developing a Type-1 video coding standard.”

See below for publicly-released information from recent MPEG meetings on royalty-free standardization.

Organizations and experts interested in actively participating in a type-1 (royalty-free) standardization activity should contact their SC29/MPEG National Body or liaison.



SC: Subcommittee.  SC 29 is the ISO/IEC Subcommittee covering coding of Audio, Picture, Multimedia and Hypermedia Information (MPEG and JPEG).

WG: Working Group.  A subsidiary body of an SC, that undertakes work planned with the SC.

NB: National Body.  The members of a Subcommittee, one member per country.

P-Member: A participating, voting NB (as opposed to O-Member, a non-voting observer).  There are 25 P-Members of SC 29 (voting country members).

WD: Working Draft.  Preparatory-stage draft of specification.

CD: Committee Draft.  Committee-stage draft of specification.

RAND: Reasonable and Non-Discriminatory.  General term for patents licensed for royalties, rather than available for use on a royalty-free basis.

NP: New Work Item Proposal.

MPEG: Moving Pictures Experts Group.  WG 11 of SC 29, with charter for coding of moving pictures and audio.

Type 1:  Option 1 on the 2007 ITU/ISO/IEC Common Patent Policy Patent Statement and Licensing Form, stating “The Patent Holder is prepared to grant a free of charge license to an unrestricted  number of applicants on a worldwide, non-discriminatory basis and under other reasonable terms and conditions to make, use, and sell implementations of the above document.”


Resolutions, the 92nd SC 29/WG 11 Meeting, 2010-04-19/23, Dresden, Germany

SC 29/WG 11 N 11241

Type-1 License Video Coding Standard

Given that there is a desire for using royalty free video coding technologies for some applications such as video distribution over the Internet, MPEG wishes to enquire of National Bodies about their willingness to commit to active participation (as defined by Section of the JTC1 directives) in developing a Type-1 video coding standard. MPEG would appreciate if NBs provide the names of individual organisations that will commit resources. MPEG will use the information gathered from the NB responses, particularly including the number of countries willing to actively participate, in order to decide at the Geneva meeting whether to request approval of a new Work Item Proposal. MPEG does not intend to reopen the issue, unless strong support of at least five national bodies is presented in the future.

ISO/IEC JTC 1 Directives, 5th Edition, Version 3.0


6.2.1 New Work Item Proposals (NP) … In order to be approved, the proposal shall be supported by a majority of all P-members of JTC 1 with at least five P-members of the SC to which the project will be assigned committed to active participation. …  Active participation for NPs includes involvement by NBs in more than one of the following:

• Attendance at meetings (see also 7.11);
• Contributing to the development of the WD;
• Performing substantial review on a CD and subsequent stages;
• Submitting detailed comment with ballots.


Meeting Report, the 91st SC 29/WG 11 Meeting, 2010-01-18/22, Kyoto, Japan

SC 29/WG 11 N 11077

Royalty-free Codecs

In order to help with the discussion on royalty-free codecs, several National Bodies provided input as requested in N11066 Call for Comments on Possible Future activities on “Royalty-free” Standardization by MPEG. MPEG thanks with N11222 Responses to NB position statements on N1066. No clear conclusions could be drawn from the diverse responses. Furthermore, neither MPEG nor ISO can guarantee that a standard developed with the goal of being RAND or royalty-free will actually be RAND or royalty-free since the analysis of patents is outside of the scope and competence of ISO and MPEG.

MPEG issued document N11221 Possible future actions on standardization with Type 1 licensing where the legal issues are summarized and discussed. Type 1 licensing refers to option 1 of the joint patent declaration form, where an intellectual property holder can indicate that he will not charge for his IP. Laymen refer to this type of licensing as royalty-free.

However, MPEG believes that 20 years after its publication some technology will become royalty-free. Since parts of MPEG-1 and MPEG-2 were published in 2013 and 2014, candidates are a MPEG-2 Part 2 baseline profile carved out of MPEG-2 Part 2, MPEG-1 Part 3 Layer 2 baseline profile carved out of the MPEG-1 part 3 Layer 2, a MPEG-1 Part 3 Layer 3 baseline profile carved out of the MPEG-1 part 3 Layer 3, and a MPEG-2 Part 1 baseline profile carved out of the MPEG-2 part 1. These candidates would be compatible with existing equipment. Alternatively, MPEG may define a new set of standards which are believed to be RF provided such standards provide sufficient differentiation to be successful in the market place.


Meeting Report, the 90th SC 29/WG 11 Meeting, 2009-10-26/30, Xian, China

SC 29/WG 11 N 10876

Royalty-free Codecs

The Chinese National Body encouraged MPEG to discuss the option of royalty-free codecs developed within MPEG (N11065 Responses to CNNB position statement on more friendly IPR policy). Especially small companies perceive licensing as cumbersome. Some royalty free standards have become successful in the market place.

MPEG might consider royalty-free codecs only as a supplement to its current standards development process. The preliminary results of the discussion are summarized in N11067 Summary of Issues and question from the 90th MPEG Meeting in connection with CNNB input document (M16903). In order to help with this discussion, MPEG requests National Bodies to provide input according to N11066 Call for Comments on Possible Future activities on “Royalty-free” Standardization by MPEG.


It is gratifying to see the FCC Broadband Plan include an open set top recommendation (4.12), firmly grounded in the FCC’s continuing responsibility to implement section 629 of the 1996 Telco Act to “assure the commercial availability” of TV devices from retail and unaffiliated sources.

And welcome words in the frank acknowledgment that over 14 years “the FCC’s attempts to meet Congress’s objectives have been unsuccessful”.

So a new proceeding will no doubt move forward, given the much-documented crying need, multi-stakeholder support, and explicit congressional directive.

But how to tell if this time the effort is on track, and not just another capture-ready MacGuffin?

Ask four questions:

– Is it specified in an uncaptured venue?
– Does it use unencumbered technologies?
– Is “it” a network interface?
– Does it work for the Web?

Overview presentation downloadable here, slideshow below.


Standards “would thwart, not advance, innovation” and “entail crippling delays”  because they are “extremely time consuming, often divisive, and sometimes used by one faction to block the progress of another or to promote its own intellectual property portfolio”.

It would be easy to dismiss comments like these in the Cable industry’s latest response to the FCC set top box inquiry (#27) that question the wisdom and feasibility of a standardized multi-network gateway as just so much diversionary polemics, masked as the caution of experience.  But a closer look is merited in part because as discussed before, royalty-free standards can be America’s broadband advantage.

On the first point — the wisdom of a multi-network gateway — the NCTA has a point.  Adding another intervening box between your TV and your TV content may have a certain quick-fix political logic in the tortured history of the 1996 Telco Act’s goal of competitive services and devices.

But the important question isn’t how many boxes it should take to hook your TV to the Internet (or any network), but how few — and that will take an Internet-acceptable open video standard.

And on this score, the existing gateway initiatives have little to offer, and are even dismissive of the core need in the first place.  The Digital Living Network Alliance, seen by some as the leading gateway standards group, said flippantly in their filing to the FCC:

“there are few (if any) standards for Internet video. Another way of looking at it is there are too many standards for Internet video. DLNA Guidelines by themselves do not solve this problem.”

Instead, DLNA promotes a philosophy and architecture of “indirection”:

“network-specific hindrances can be addressed by ‘adding one layer of indirection'”

The software domain maxim that DLNA bases its strategy on — “any software problem can be solved by adding one layer of indirection” — is well-known in software development, but it is a stretch to assume it is therefore a particularly appropriate or adequate policy architecture for the multiple networking, standards, industry structure and business problems of set top boxes meeting the Internet.

DLNA and NCTA are far from alone in proposing variants of the theme of the devolving cycle of standards pragmaticism — ambivalence — doubting — bashing (check the UK version here).

But there is a better way. Instead of bashing standards, standards groups, industry groups, participants, and regulators should turn their focus and energies to how to make standards work.



January 27, 2010

“- Proposals to require an ANSI standardized gateway solution would entail crippling delays. Standards activities are extremely time consuming, often divisive, and sometimes used by one faction to block the progress of another or to promote its own intellectual property portfolio. It would require years just to get the standards developed, at which point products would still have to be designed, manufactured, and brought to market.

– Subjecting this dynamic marketplace to an ANSI standards process in which each industry participant can delay or veto the innovations of the other would thwart, not advance, innovation.

– These demands call for massive standards activities required in multiple standards bodies for multiple services, interfaces, and technologies. Standardization and related intellectual property clearances are extremely time consuming.

– Zenith, the intellectual property holder for the rejected VSB system, sought to use the process of amending SCTE 40 to put VSB transport into SCTE 40. It slowed the standards process by submitting the majority of objections to SCTE 40 and an unsuccessful appeal to ANSI, in an effort to impose VSB transport onto the cable architecture. This process took years to resolve.

– Under the CEA standards process, IS-6 became IS-132, which became EIA-542, which became CEA-542B. It took more than 13 years to produce the very simple Cable Channel Plan standard. This slow process was one of the reasons that led to the development of CableLabs, so that the cable industry could innovate more rapidly.

– DBS could not have offered MPEG-4 if it had to await elaborate industry consensus or rule change.

– AT&T still would not have deployed U-verse if it were required to wait until IPTV issues were set through industry consensus or by an ANSI-accredited body.

– Had Verizon deferred its hybrid IP/QAM offering until such processes were completed, it too would still be waiting to enter the marketplace.


These network-specific hindrances can be addressed by “adding one layer of indirection”7—a gateway device.

As some have already commented, there are few (if any) standards for Internet video.10 Another way of looking at it is there are too many standards for Internet video. DLNA Guidelines by themselves do not solve this problem; however, a DLNA gateway device which is able to receive Internet video is able to bridge that content onto a DLNA home network.11

Last August I questioned if the BBC-led hybrid DTV Project Canvas was “seduced by the cynical allure of a semi-open ‘standards-based open environment‘” .

Many kudos to the DTG — the lead UK DTV standards group — who today released its tough-love “parallel process” criticism in the BBC Trust oversight consultation.

To wit:  “it is unreasonable for the Canvas JV to claim that they have fully engaged with industry” while running “a parallel process” operated “separately from, and regardless of,” the DTG’s own standards work, with “lack of clarity over the IPR status”.

The BBC Trust should heed the words that “only a mandatory requirement for the Canvas JV to engage with industry to deliver an agreed specification can achieve widespread market success”.

Hang in there, DTG, there’s standards-bashing hiding by behind pragmatic waffling on this side of the pond too.

But to respin a Churchillian quip:  standards are the worst form of industry governance, except for all the rest.


So why shouldn’t Project Canvas also be built on royalty-free standards, advancing rather than opposing the thrust of the Open Internet and World Wide Web that has enabled the Project Canvas opportunity in the first place?

Is the BBC slipping unthinkingly into a common parlance of the day – seduced by the cynical allure of a semi-open “standards-based open environment” — open enough to help me, closed enough to hurt my competitors, with vendor complicity bought by the potential competitive advantage of conveniently under-disclosed patent royalties or other control points?

This is an under-addressed question that the BBC Executive, BBC Trust and proposed joint venture have skirted so far in this consultation, and should be fully addressed before proceeding.  A Free-To-View TV Internet is both a TV and a network stewardship.

[F]eedback from our membership indicates that there remains widespread concern in the industry that there is a parallel process in place – with a Canvas specification being developed between the Canvas JV and its innovation partners separately from, and regardless of, the DTG’s Connected TV specification work.
Without the release of these documents we believe it is unreasonable for the Canvas JV to claim that they have fully engaged with industry via the DTG. The failure by the BBC or the Canvas JV to release this documentation to the DTG has severely impacted upon the ability of the DTG’s Connected TV Working Groups to deliver a Connected TV specification in a timely manner.

DTG members have voiced concern that there is a lack of clarity over the IPR status of Canvas technical documentation. As a result, the DTG’s membership believes that the Trust should make approval of the BBC Executive’s Canvas proposal conditional on the clarification of the precise IPR position of the Canvas commercial requirements, technical documentation and specification.

Feedback we have received from our membership indicates that the consensus among our members is that only a mandatory requirement for the Canvas JV to engage with industry to deliver an agreed specification can achieve widespread market success and represent the best interests of the UK consumers and TV Licence Fee payers.

In late 2001, to much industry enthusiasm, H.264 and MPEG-4 AVC were launched as the world’s unifying codec family in a joint project between ITU and ISO/MPEG with the undertaking that the “JVT [Joint Video Team] will define a “baseline” profile. That profile should be royalty-free for all implementations.”

The failure to deliver on this royalty-free baseline is more than a lively standards history tale.

Years of exhausting disputes and doubts have recently resolved with court rulings soundly vindicating the original royalty-free process and vision.

And now, more than ever, the Web and broadband revolution need these groups to deliver on this 2001 royalty-free undertaking.  And in the coming months, ITU and ISO are poised to begin work on a next generation of codec and transport stream standards.

I have summarized a pro royalty-free viewpoint on how ITU and ISO/MPEG can and should go forward and complete this royalty free undertaking here.

Last week, Business News Americas broke the story that the ATSC Forum — the industry group that lobbies for the international adoption of the US ATSC digital TV standard of the Advanced Television Systems Committee — plans to close its doors at the end of September.

Although the ATSC Forum’s closure has gotten little attention in the US, the story has been picked up in South America, where the ATSC Forum’s lobbying efforts have been swamped by momentum for the Japanese-Brazilian ISDB system (an under-reported story in itself, as some are recognizing).
The ATSC Forum was “established in late 2001 to promote DTV and ATSC standards, especially throughout Latin America”, and has lobbied other countries, including the Philippines, as have rivals European-led DVB and Japanese-led ISDB.  And as quoted below, the Forum has cleverly worded a fantasy strategy to skirt patent fees that will no doubt bring a chuckle on close examination.

Recent strident exception the ATSC Forum has taken to contentions here that there are structurally-flawed patent licensing processes at the heart of ATSC and DTV communities (reiterated below as recently as last month in Haiti, see below), puts an interesting light on the reported reasoning that the ATSC Forum is giving for closing its doors:

“manufacturing companies that represent the ATSC are now less concerned about which digital TV standard the equipment they make represents and so are increasingly less inclined to finance a group advocating one standard or another”.

Really?  Surely, specific patent or commercial interests may be the last standing in an end-game of standards advocacy, particularly when interests are unclearly spread across multiple standards and advocacy groups.

And though the ATSC Forum website does not list which members are sponsors ($25K/year) or just general members ($5K/year), four vendors appear prominent at the website in recent years (Zenith/LG, Samsung, Dolby, and Harris).  Three, as well as the ATSC Forum and the ATSC, have filed in the FCC inquiry on patent royalty overcharging challenged by the CUT FATT group, and Harris, the largest transmission equipment supplier for ATSC, turned against certain patent licensing practices and sided with the CUT FATT group.

But according to government reports, in 2003, the ATSC Forum received $399K in export promotion market development funds from the International Trade Administration of the US Department of Commerce.  Ouch –  patent pool promotion as export trade policy.

Indeed, a 2004 success story at the US Department of Commerce Market Development Cooperator Program website describes the 3-year campaign in optimistic terms, predicting $8 billion in US exports (subsequently revised down to $5.6 million).  And also in terms that likely seemed entirely reasonable at the time, but which now seem vaguely like a fight-the-last-war replay of the 1960s Cold War color TV standards wars — little resembling the new globalization-era, each-country-is-a-partner ethic reflected in the launch of the new ISDB-T International Forum web site for South America.

And in 2007, the US National Association of Broadcasters funded a mobile TV initiative for $750K with many did-they-learn-the-right-lessons parallels to the ATSC Forum.

So the ATSC Forum is leaving unfinished business and (potentially) unlearned lessons:

Patent Licensing Processes Need Reform.
Hybrid Broadcast-Broadband Needs Uncaptured Standards.
The Curious Rebirth of Free TV Needs Tending.
US Mobile TV Risks Institutionalizing Same Mistakes.
Network policy in the broadband age should promote a global level playing field

In sum, the Network Policy Techno-Politics mix is still out of balance — but to ATSC Forum’s credit they have included technical reasoning along with political advocacy — something that recent FCC broadband dialog seems to lack so far.

To quote Richard Elkus’ 2008 “Winner Take All: How Competitiveness Shapes the Fate of Nations” (it was Elkus who in 1988 sounded the call that US digital TV policy may “reflect the ebbing tide of United States technological and economic leadership”):

“All of America’s technological industries and institutions are linked. … Strategy is everything.”


“Patent license fees are not important in the selection of a DTV transmission standard …. For almost every country in Latin America and the Caribbean, no patents apply for products manufactured and sold within that country”

ATSC Digital Television Update, Robert K. Graves, Chairman, ATSC Forum, Port-Au-Prince, Haiti, August 7, 2009,

“But almost none of the patents that apply in the U.S. have been filed in the Philippines, so IP fees will be far less in the Philippines than the small fees that apply in the U.S.

Dolby has indicated that it has not registered its AC-3 patents in the Philippines, and consequently, Dolby cannot, and will not, charge patent royalties for products that are manufactured and sold in the Philippines (or on products bought from or sold to other non-patent countries by the Philippines).

The ATSC Standard incorporates the VSB transmission system developed by Zenith Electronics. However, no Zenith patents associated with VSB have been filed in the Philippines (compared to 13 in North America), so there can be no IP license fee associated with the VSB transmission system for products produced and sold in the Philippines.”

Response of the ATSC Forum to the Consultative Document on Digital Terrestrial Television (DTT) of the National Telecommunications Commission Department of Transportation and Communications Republic of the Philippines,  October 30, 2006

“More Democratic” … “It is a matter of social justice”

So US ambassadors have lobbied South American governments since 2007 that “[t]he issue is whether the government will choose the [ATSC] digital television standard that is already providing the highest quality, lowest cost, and most democratic opportunities …”

In recent months Peru, Argentina, and now Chile have turned down ATSC for the Japanese-Brazilian ISDB digital TV system, so it is worth asking the somewhat inconvenient question of how did a controversial, pricey, and generally questionable digital television patent pool drift into becoming a US diplomatic cause for democracy slash trade policy?

And whether this advocacy should be carried forward under the leadership of the newly-appointed Ambassador Philip Verveer of the US State Department’s International Communication and Information Policy (CIP) group as it was by his predecessor David A. Gross, who as late as February 2008, advocated in an op-ed column published in Chile:

“During my recent visit to Chile, I met with decision-makers from the government, the National Congress, industry, non-governmental organizations (NGOs), and the media. I explained the clear advantages of the Advanced Television Systems Committee (ATSC) standard: a significant better quality and coverage and a lower cost”

The CIP is one of seven issue-oriented organizations within the Bureau of Economic, Energy, and Business Affairs at the U.S. Department of State.  In addition to Verveer, tech industry veteran Lorraine Hariton has just just been appointed Special Representative for Commercial and Business Affairs.

There is a lot of food for thought for the new team at CIP on this topic:

– trade policy and standards capture
broadband-broadcast convergence bridging a global digital divide
global level playing field network policy in the broadband age

To name a few.  Here’s to hoping the new CIP team will dig in, update outdated thinking, and lean forward!


The Opportunity for Chile in the Digital Television Age
Ambassador David A. Gross, U.S. Coordinator for International Communications & Information Policy, February 14, 2008:

“More Democratic: For technical reasons, the ATSC standard allows for a much greater number of broadcast stations to operate in a given area, thereby allowing for new broadcast stations and more types of additional broadcasts such as educational programming. “

American ATSC Digital TV Standard Offers Chile Advantages of Accessibility, Lower Costs, and Higher Quality”, March 16, 2007:

“Ambassador Kelly pointed out that ATSC offers Chile the unique opportunity of approaching the information society for all its citizens. He noted that the American standard “is much more flexible and open to future changes at reasonable and accessible costs to all.” “It is a matter of social justice that all citizens are able to participate and are guaranteed access,” he emphasized.”

Remarks to the Commercial Association of Sao Paulo (ACSP)
E. Anthony Wayne,  U.S. Assistant Secretary for Bureau of Economic and Business Affairs, Sao Paulo, Brazil, April 6, 2006:

I’d like to briefly discuss Brazil’s vibrant telecommunications industry. I understand that President Lula is going to announce the selection of the Brazilian digital TV standard soon.

Of the several options on the table, we believe the ATSC standard [Advanced Television Systems Committee (the North American standard for digital TV, including high-definition)] offers the best combination of economic, social, and technical advantages. It has been adopted by the U.S., Canada, Mexico and South Korea. These countries that have adopted the ATSC standards are seeing a rapid increase in the sales of high definition television products. Brazil’s adoption of the ATSC standard will ensure a hemispheric standard, creating a market of 800 million people for DTV products and services.

The U.S. No longer manufactures television sets. This poises Brazil to supply high definition television sets, converter boxes, and transmission equipment throughout the Hemisphere. Brazil’s potential role as a leading supplier will help create high-paying, highly-skilled jobs and significant economic development.

The U.S. Overseas Private Investment Corporation has set aside $150 million for U.S. Companies to invest in information technology development projects in Brazil. And U.S. Companies have already expressed their intention of making significant investments in ATSC-related manufacturing in Brazil.

ATSC’s open development process ensures Brazil a significant role in the evolution of the standard. Evolving ATSC standards present great opportunities for Brazilian-U.S. And Brazilian-South Korean collaboration and partnership.

A “Julius Stonian” observation:  standards groups aren’t “consensus organizations”, they are political organizations. Winners declare their way the “consensus”, and changes in political context shift the “consensus”.

So reflects calls in several slides at yesterday’s Hybrid Broadcast-Broadband (HBB) workshop to look deeper into Intellectual Property Rights and other control points in the new “broadcast+broadband” (aka OTT TV) standards initiatives.

Cases in point:  UK Project Canvas, see filing here, and HBBTV, a “consortium” claiming pan-European fait accompli authority that is questioned by the European Broadcasting Union’s workshop slides.
So Stonian kudos to MHEG vendor S&T and the EBU for frank, to-the-political-point, what’s-in-it-for-me observations:

  • “Do you know what IPR issues exist in new initiatives like HBBTV??? (S&T slide 45)
  • “IPR and patent issues shall be resolved prior to rolling out the HBB services” (EBU slide 9)
  • “Unresolved IPR issues (particularly “submarine” patents)” (EBU slide 28)

The EBU’s observations are perhaps most interesting, because they draw from a February 2009 EBU recommendation and initiative, cited below, that cuts to the chase of many of the fundamental political and policy interests that are at stake when “broadcast meets broadband”, many of which don’t fit neatly into the current standards landscape status quo, but require both regulatory oversight and clear, direct articulation of broadcasters interests (as well as other interests, public and private).


EBU’s observations are a frank step ahead of the BBC’s have-it-both-ways “standards-based

open environment” double talk challenged here (although neatly respected by Andrew Burke here), and miles ahead of the US ATSC Forum’s recent tepid “almost-as-good-as Europe” defense.

So who is Julius Stone?

Since his death in 1985, the influence of Julius Stone, one of the 20th century’s great legal scholars, has enjoyed a strange yet welcome renaissance.

Yorkshire born in 1907 of Lithuanian Jewish refugees, his first of 27 books, “International Guarantees of Minority Rights”, was published when he was only 25, and is still considered “the most authoritative and objective work in its field”.

From 1942 on an Australian law professor, Stone’s half-century of jurisprudence  once seemed destined to drift to dated obscurity. A review of a 1992 biography questioned the wisdom of bothering with a biography at all, since “as the spheres are aligned in the academic firmament today, Julius Stone’s star is not burning particularly brightly”.

But the generations he marked knew better, including this writer who was blessed in law school by Stone (he taught part-time in the US after his retirement) assigning one of his last books, “Conflict Through Consensus”, a thin dissection entirely unlike other law school casebooks whose title alone knifed a foolishness of his century, the 51 year quest to legalistically define the term “agression” to whitewash some of the century’s greatest criminal acts.

To this day the title “Conflict through Consensus” rings like an alarm in my head whenever I see such cover-up terms as “consensus organization” bandied about in standards groups process documents.  Of course there is no consensus when there is conflict, and only a nitwit self-deceiving “expert” couldn’t see, as Stone once far more artfully put it, “the realities disclosed by an examination of the definition.”

In 1999 an Institute of Jurisprudence was founded in Stone’s name, and nowadays the
accolades flow.

And a heavyweight annual lecture series that features dense yet topical speechs on international jurisprudence, such as one by a Harvard law professor warning of the dangers when “[w]e underestimate the power of expert consensus” or by a St Johns’ law professor on how overstated notions of “legal pluralism” mislead in a “new lex mercatoria” of pseudo-governmental venues.

The common Stonian thread?  A warning, really, of the dangers of overbelief, particularly in an international organizational context, as conditions evolve.  Overbelief in a status quo of expert consensus. Overbelief in the ultimately deluding dead-end thought process that others might be fooled by a “consensus covering up conflict”.  Overbelief in misleading notions of “legal pluralism” that see in the status quo of international organizations some sort of law, rather than just behavior.

So cut the “pan-European consortium” PR happy talk, folks, and put the interests on the table (here’s how).  Who owns what, and who will get what?  The EBU has had the courage and insight to do as much; so should everyone else.


“I begin with a simple “Julius Stonian” observation: the international world is governed.   The domain outside and between nation states is neither an anarchic political space beyond the reach of law, nor a domain of market freedom immune from regulation.   Our international world is the product and preoccupation of an intense and ongoing project of regulation and management.”

David Kennedy (Harvard Law School professor), “Challenging Expert Rule: The Politics of Global Governance”, in 2004 Julius Stone Memorial Address, Sydney Australia.

European Broadcasting Union Recomendation, “Television in a Hybrid Broadcast/Broadband Environment”, February 2009,

“The EBU recommends that EBU Members must foster, in cooperation with the industry and standardization bodies, the development of hybrid broadcast/broadband technical platforms with the necessary technical commonality to ensure the development of a European-wide
consumer market …

It is fair and reasonable that consumers should enjoy PSB [Public Service Broadcasting] ‘rich-media’ delivered over hybrid broadcast-broadband networks in the same way they consume broadcast-only content. They should be able to do so without organizations that have not contributed to the production process capitalizing on the process.

The EBU and its Members need to analyze the European and national regulatory frameworks, taking action where appropriate, to ensure that third parties associate their broadband services with EBU Member’s programmes only when authorized. For example, PSBs should retain editorial control of all content associated with their programmes (e.g. EPGs, surrounding text and rich multimedia, advertising and banners, picture-in-picture, interactive applications).”