MEANS ARE MORE IMPORTANT THAN THE END

(Summary: This paper provides legal implications of formats and explains why it is better to adopt format based on open standards. Guidelines for implementing open formats are also provided.)

Mahatma Gandhi - from Wikipedia

The beginning of the last century witnessed the emergence of a semi-clad Indian, referred to as 'half naked Fakir' by Winston Churchill. His philosophy was, 'means are more important than the end: it is only with the right means that the desired end will follow' (see Endnote-1). To the charge that 'means are after all means', he would say, ‘means are, after all, everything’. His name, Mohandas Karamchandra Gandhi – known to the World as Mahatma Gandhi, father of the Indian nation.

Gandhi's philosophy is still relevant, in all walks of life. In the context of the Information and Communication Technology (ICT), the end is - dissemination and communication of information: the means are - how to achieve it; how to implement it; what kinds standards to employ; what kinds of formats to adopt; what kind of software to use?



This century is likely to be dominated by the problems related to intellectual property rights (IPRs). In open standards, not only the accessibility and communication of information is better but there are no IPR problems: a standard cannot be open unless all IPRs are surrendered. Similarly there are IPR problems in open source software but they are minimal. These are good means and will lead to the desired end. This is the reason that the Allahabad High Court has adopted open standards, open format, and open source.

STANDARD - FORMAT

In the context of technology, standards broadly mean specifications. In the digital world, they relate to the format.

Format is a particular way of encoding information or a method of storing information so that a computer programme or a device may understand it, reproduce it.

The easiest way to understand them is to consider the office documents – text, presentation, spread sheet. An office suite is a bundle of computer applications that helps to create them. They are different kinds information that are stored in a computer. Apart from office documents, there are other kinds of information: audio, music, video, picture etc. They are saved on a computer in different formats and even the same kind of information may be saved in different formats. The formats can be proprietary or open.

PROPRIETARY FORMAT
The proprietary format may be,

1. Close: Generally, the specifications or the details as to how data is being encoded is secret and is protected as a trade secret.
2. Disclosed: The specifications may be proprietary even if they are documented and disclosed: they could be protected by other IPRs namely, patents or copyright. The question regarding patenting of software is debatable so is the case with formats. In case format or encoding the information requires patented software then it will be protected as a patent. This was the case with picture format GIF. Its use declined when the owner started charging fee for it however now patent period is over and it is free.

Proprietary Format – Disadvantages
The proprietary format has its own disadvantages:

1. The user cannot change the office suite or device unless the other office suite or device is capable of opening the files saved in the earlier format.
2. In case the documents are for public viewing then everyone who wishes to view or download or print should have the office suite capable of opening documents of that format.
3. Any office suite or a device can be made, so as to open the information saved in any other format only if the specifications of the other format are known. In case, the details of the other format are proprietary then they can be used only with the permission of the owner and generally after paying royalty. If they are protected as a trade secret then apart from fees a contract of non-disclosure is also required to be executed. The other way to find out the specification of a format protected as a trade secret is by reverse engineering it. This is always permissible (see TRADE SECRET, CONTRACT AND REVERSE ENGINEERING). However reverse engineering, apart from being imperfect, is time consuming and expensive: it entails unnecessary expenditure and wastage of time.

OPEN FORMAT
The specifications are based on open standards. They are documented, published, and made available without any royalty or fee - sufficient to implement them in any computer programme or device.

OPEN STANDARDS

There is a broad agreement on the concept of 'open standards' but no exact definition is available. One of the committees of the European commission in its Final European Interoperability Framework November 2004 (EN) report recommended open standards to attain interoperability in the context of pan-European services and has also explained its minimal characteristics as follows:

• The standard is adopted and is maintained by a not-for-profit organisation, and its ongoing development occurs on the basis of an open decision-making procedure available to all interested parties (consensus or majority decision etc).
• The standard is published and the standard specification document is available either freely or at a nominal charge. It must be permissible to all to copy, distribute and use it for no fee or at a nominal fee.
• The intellectual property in the standard is made irrevocably available on a royalty-free basis.
• There are no constraints on the re-use of the standard.

To me, it correctly captures the spirit of open standards: there is no fee for using the standard; it only talks about a nominal fee for the specification document.

Format based on Open Standards is Ideal
The proprietary format has its own limitations and disadvantages. Healthy competition will grow, if open standards are adopted: it avoids monopoly. One should not forget that Information technology has flourished in open standards: the Internet, the web, the protocol transfer are all based on open standards.

OPEN DOCUMENT FORMAT (ODF)

OASIS, a non-profit international consortium, has come out with open standards for office documents. It is an XML-based file format suitable for office application features that are required by text, spreadsheets, charts and graphical documents. It is owned by OASIS (see Endnote-2) but it is open, anyone can implement without paying any licence or royalty to OASIS or to anyone else. This format is called Open Document format (ODF). It was approved by the International Standardisation Organisation (ISO) on May 3, 2006. There was some debate as to whether ODF is based on open standards or not. David A. Wheeler in his article 'Is ODF Open Standard' has reasoned out that ODF is Open Standard.

At present, MS office does not support ODF; it can neither read nor save in this format. However Sun Microsystems has come out with plug-in for MS word. It is free and can be downloaded.

Microsoft, with the approval of Ecma International, has also come out with a format, known as Office Open XML (OOXML). It was submitted to ISO for approval and the national standard bodies were required to vote by 2 September 2007. However it has failed to get ISO recognition. The next round of voting will take place early next year.

GUIDELINES FOR IMPLEMENTING OPEN FORMAT

The Allahabad High court has implemented ODF but had encountered some problems in implementing it. Here is what we have gained in this process:

1. Realisation - open format is better: It is necessary that it should be realised that open format is better than any proprietary format: unless this is understood, no success can be achieved. People are loathe to change the format that they are already using.
2. Switch over to the office suite that supports open format: Allahabad High Court has shifted over to OpenOffice.org suite as it supports ODF. The E-committee is providing desktop in every court in India. Some of these desktops are on Windows, some are based on Linux. The E-committee has provided Linux based laptops to all judicial officers of subordinate judiciary in India. In all of them, the office suite is of OpenOffice.org; it has become de-facto office suite for Indian judiciary. (For details see the article A NEW CHAPTER IN JUDICIARY AND INFORMATION TECHNOLOGY. This makes the ODF an automatic choice.
3. Provide training: Most of the computers in the Indian courts had MS Office suite: persons were accustomed to it. OpenOffice.org suite is similar to MS office suite yet there are some differences: there was reluctance in changing over. To overcome this, extensive training was given. It should always be done.
4. Communications may be in open document format: All communications may be out carried in ODF. In case information in any other format is required then it may be provided but ODF be treated as original.
5. Make ODF as the default saving option: The courts where MS word is still being used and there is insistence on using the MS word, plug-in for ODF format from Sun Microsystems was downloaded and installed. Nevertheless the person working on the same, are required ODF as the default saving option.

HARE AND TORTOISE

I would like to end, with a story from 'Panchtantra': this has common thread in all cultures. It is a story of a hare and a tortoise.

One day, the hare and the tortoise decided to race against each other. The hare obviously took the lead; he thought of relaxing and went off to sleep. The tortoise, walking slowly but steadily, overtook the hare and won the race. The moral is, 'Slow but steady wins the race'. In recent time, some new chapters have been added.

The hare was perturbed by the defeat. He asked the tortoise to race again. This time he did not take rest and won the race easily. The moral is, 'It is better to be fast and reliable'. But, this is not the end of the story.

After some days, the tortoise asked the hare to race once again but with a condition that the course will be chosen by him. The hare, who was confident of his victory, gave him a free hand. This time the course included a river. The hare ran up to the river and then stopped. The tortoise came and swam across the river to win the race. The moral is, 'Every one has weak and strong points – play on your strong side'. However, the story still does not end here.

After some days, the tortoise and the hare repeated the race over the same course but the rules were changed. This time they decided run it as a team. On the ground, the hare carried the tortoise on his back and on the river, the tortoise carried the hare on his back. The result was that both of them reached the destination quickly, saved time and enjoyed the race too. The moral is, 'It is best to consolidate everyone's strong points'.

This is, what the open standards, open formats, open source are about. They,

• Consolidate strong points;
• Use the IPR to prevent the hoarding of technology;
• Invite others to participate in its development.

It is 'Make love, not war' in atypical way. And this is the key to the future.

Endnote-1: This is no longer in realm of philosophy. It has transcended in the sphere of law. This is how Lord Denning has put it {R Vs IRC Exparte Rossminster Ltd 1979 (3) All ELR 385} ,

‘But it is fundamental in our law that the means that are adopted to this end should be lawful means. A good end does not justify bad means. The means should not be such as to offend against the fundamental freedom, the privacy and elemental rights of property.’

The US Supreme Court in TVA Vs Hill (57 L.Ed 2nd 117) stopped the construction of a dam over Little Tennessee River. The reason was extinction of an endangered snail darter, a three-inch tannish coloured fish, found in the river. Traditionally Attorney General of US appears only once in his term. Cases are argued in the court by the Solicitor General. Griffin B Bell, the then Attorney General, had chosen to appear in this case. He showed the fish to the court. According to him dam was completed and only for this three-inch fish the doors of the dam could not be closed. The congress had to amend the law to get over the judgement. Snail darters, which had previously lived only on the Little Tennessee River, were transplanted to the Hiwassee River. It was only then they could complete the constructions. The court while stopping the construction quoted the following passage of Bolds (A man for all seasons Act I Page 147) with approval.

‘The law Roper the law I know what’s legal not what’s right And will stick to what’s legal- I am not God. The currents and endless of rights and wrong which you find such plain sailing. I cannot navigate I am not a voyager. I am a forester in the thickness of law-what would you do? Cut a great road through the law to get after the Devil. And when the last law was down and Devil turned around on you, where would you hide, Roper the laws all being flat. This country’s planned thick with the laws from coast to coast-Man’s law not God's and if you cut them down-Do you really think you can stand upright in the winds that would blow then-Yes I would give the Devil benefit of law for my own safety’s sake.'

(This is text of speech delivered by Justice Yatindra Singh on 29.10.2007 in the First International OpenDocument Format User Workshop organised by the German Federal Foreign Office in collaboration with ODF Alliance at Berlin)