Massachusetts considers “open formats”, but are they asking the right questions? says that “Eric Kriss, Secretary for the Executive Office of the Administration of Finance for the Commonwealth of Massachusetts, has kindly given us permission to share with you audio of his recent speech on Open Formats […]”. I’m glad to see a warm reception for‘s work on OASIS (their upcoming portable and freely implementable file format) and their software. I appreciate how hard it is to speak extemporaneously and be as precise as Kriss said he wanted to be. I host a radio show on my local community radio station, WEFT 90.1 FM, called Digital Citizen where I talk about these issues live on the air, taking phone callers as well, every other Wednesday night from 8-10p. (I’m working on putting together a website where you can download past episodes of the show.)

What Kriss wants to accomplish is difficult. I think the lack of conditions on the aforementioned audio file distribution permission (the file was originally distributed as an MP3) show just how tricky it is to accomplish what he and his team set out to do.

Consider Kriss’ definition of an “open format”: (emphasis mine)

“Open Formats, as we’re thinking about them, and we’re trying to be precise with the language, because people use different English words for different technical terms, in our definition, “Open Formats” are specifications for data file formats that are based on an underlying open standard, developed by an open community and affirmed by a standards body; or, de facto format standards controlled by other entities that are fully documented and available for public use under perpetual, royalty-free, and nondiscriminatory terms.”

The free software community can see the irony of distributing an MP3 copy of the recording ostensibly meant to be attractive to the free software community, but I was curious if MP3 qualifies as an “open format” according to this definition?

MP3 is covered by patents. Fraunhofer Gesellschaft, through Thomson, distributes licenses under uniform per-unit terms or as a one-time flat fee. Per-unit terms are incompatible with free software because it is impossible to know exactly how many copies of the ostensibly free software MP3 program are distributed (free software allows you to share and modify the software, hence the use of the word “free” not as a reference to price but to freedom). To my knowledge, nobody has paid the alternative $50,000 one-time license fee because nobody developing what would be a free software MP3 program can afford it. Therefore, in countries that have software patents (such as the US), there is no free software MP3 encoder or decoder.

This situation drove the creation of Ogg Vorbis which, functionally, is a complete replacement for MP3, albeit an incompatible replacement—Ogg Vorbis files and MP3 files are not the same format and the methods to make the files are different. Vorbis is also considered a superior codec for its intended use. As far as I know, neither the Ogg encapsulation format nor the Vorbis lossy audio compression codec are covered by patents. The specification for Ogg Vorbis is in the public domain and free software reference encoders and decoders are available. These are other reasons why Ogg Vorbis is a superior choice to MP3.

Reasonable and non-discriminatory licensing (also known as “RAND” licensing) can discriminate against free software implementations of the patented idea. The FSF reminds us, “that makes [RAND] unreasonable”. MP3 licenses are available on so-called RAND terms, terms which are probably better described by the replacement term the FSF suggests: UFO for “uniform fee only”. MP3 licensing is uniform for a particular use according to the terms described on their licensing page.

So, has anyone asked Kriss or his organization if they considered the problem of RAND licensing?