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ISO to TMB: Here Are the Appeals Against OOXML; They Should Be Denied - Updated 2Xs - Responses
Wednesday, July 09 2008 @ 07:57 AM EDT

Here is the ISO document [PDF] reporting the recommendation of Alan Bryden, Secretary-General and CEO, ISO, and Aharon Amit, General Secretary and CEO, IEC, to the Technical Management Board (TMB) not to pursue the appeals filed against OOXML. You could subtitle the document, "Ode to Microsoft," I'd say, and here's their predictable bottom line:

20. The processing of the ISO/IEC DIS 29500 project has been conducted in conformity with the ISO/IEC JTC 1 Directives, with decisions determined by the votes expressed by the relevant ISO and IEC national bodies under their own responsibility, and consequently, for the reasons mentioned above, the appeals should not be processed further.

I know you are not surprised. The same people who gave us OOXML were expected to tell us that they did a fabulous job. However, it does mean the appeals have been sent along to the TMB. The memo is dated June 30. You can read the filings by those who appealed -- Brazil, South Africa, Venezuela, and India -- as they are attached as exhibits, and decide for yourself if the rules were followed. I guarantee it will curl your lip. There is an August 4 deadline mentioned in the document for all the members of the TMB to take a position on the appeals, it says.

If you remember Andy Updegrove's class that I highlighted on Groklaw before on how the appeals process works, we're here:

11.3.3 The Secretaries-General shall, following whatever consultations they deem appropriate, refer the appeal together with their comments to the TMB/SMB within one month after receipt of the appeal....

11.3.4 The TMB/SMB shall decide whether an appeal shall be further processed or not. If the decision is in favour of proceeding, the Chairmen of the TMB/SMB shall form a conciliation panel (see 9.2). The conciliation panel shall hear the appeal and attempt to resolve the difference of opinion as soon as practicable. If the conciliation panel is unsuccessful in its endeavours, it shall so report within three months to the Secretaries-General, giving its recommendations on how the matter should be settled.

The document itself, in Annex A, says a bit more about what the appealing NBs can do if they don't like a decision not to proceed further:

14. The TMB and the SMB may choose one of two options for each appeal:
14.1 Not to process the appeal any further. This is the equivalent of denying the appeal. If all four are denied, publication of ISO/IEC 29500 may proceed. The NB concerned may appeal this decision to the Councils.

14.2 Process the appeal further. This has the consequence that a conciliation panel must be organized. In this event it seems indicated to organize a single conciliation panel for all the appeals being processed.

That's on page 3 of the PDF. Those were the options, and ISO suggests that the TMB choose the first. I have no idea who "the Councils" are. But I'd wager that will be fruitless also. To give you an idea of why I say that, here's why the appeal from India was deemed "not receivable" at first. The four NBs were told that to appeal properly, they had to tell what remedial action they'd find acceptable:

15. The appeal from India identifies a "remedial action", extending the time for appealing to allow reading the "final text", which is irrelevant to the decision being appealed and therefore to the appeal (see item 6, in Attachment 1). Therefore the Indian appeal identifies no remedial action and is not receivable.

In short, it's all been a farce, in keeping with the rest of the OOXML processing. ISO thinks there's not a thing wrong with the job they did on OOXML, they do not countenance criticism, and if we don't like it, we can lump it. Or, ISO has decided to go down with the ship. Anyway, stay tuned. It ain't over 'til it's over.

Update: Andy Updegrove has an article up now:

Yesterday the CEOs of ISO and IEC delivered their required report on the four appeals filed relating to adoption of Microsoft's OOXML specification. ...

Those who have been disappointed by how the Fast Track process was conducted will also be disappointed by the reasoning they will find in the document, which can be effectively be summarized as follows:

1. All judgments made during the course of the process were appropriately made under the applicable Directives

2. The fact that the BRM voted on all proposed resolutions in some fashion satisfies the requirements of the Directives

3. The fact that a sufficient percentage of National Bodies (NBs) ultimately voted to approve DIS 29500 ratifies the process and any flaws in that process

4. Many objections, regardless of their merits, are irrelevant to the appeals process

The analysis in the document and the final recommendation demonstrate the very limited degree to which decisions made by ISO/IEC can be appealed, no matter ill considered they may be considered to have been by those that have participated in the process.

Update 2: Alex Brown has a feeble response on his blog. He hints that maybe the four national bodies copied off each other's test papers, so to speak. Silly stuff. Nothing about any of the substantive issues. Like, for example, the document stating that Brazil isn't a P country, when it is, according to ISO's list on its website. But the memo says on page 3 of the PDF that Brazil has no right to appeal, because it's not a P country. In the comments page, where he and Andy Updegrove get into it, he responds to Andy like this:

> I'm a little surprised by your blog entry for two reasons. First, it doesn't have
> anything to say on the merits, which are important for those who filed the appeals,
> for others who have concerns, and for the integrity of the process.

It's really not my place to comment on that. I think the document speaks for itself - very clearly.

It speaks for itself very clearly in the same way as do the Zimbabwe election results, I'd say. Those running the show can proclaim that a process was as fair and legitimate as you please, but if people saw a thumb on the scale, they may draw a very different conclusion. Issuing statements and studies and reports and whatnot can't undo what people can see with their own eyes. And in spite of ISO's heroic efforts to keep this entire process under wraps, we saw what we saw.

Perhaps ISO hasn't read the new "European Interoperability Framework for Pan-European eGovernment Services" [PDF] on p. 9:

The following are the minimum characteristics that a specification and its attendant documents must have in order to be considered an open standard:
  • The standard is adopted and will be maintained by a not-for-profit organization, 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 has been 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 -- i.e. patents possibly present -- of (parts of) the standard is made irrevocably available on a royalty-free basis.

What do you think? Does ISO's OOXML match that description?

Brown suggests that because the four have a sentence here and there that is similar, it suggests that their complaints should be ignored, like when you get a lot of form letters:

Well, like for form-letters, their content is likely to get proportionately discounted when considered.

!! What?

I think it's fairly obvious that there are only so many ways to say that there wasn't sufficient time to analyze the merits of the submission. And if there was insufficient time, what substantive difference does it make how someone expresses it? It either was insufficient or it was not. He does not say that there was sufficient time. He suggests instead that because they used similar language, no one needs to pay attention to that very substantive criticism. You can find ISO's characterization of the bases for the appeals on page 5 of the document, by the way. Let's look at one. Remember India saying it suggested that there should be a delay to give appellants a chance to receive the final draft prior to cutting off appeals? If you look at number 6 on the list, note that ISO considers that irrelevant:

6. "Final" text of ISO/IEC 29500 or ISO/IEC DIS 29500, of 'revised FDIS text", not released.

6e. Correct but irrelevant. The decision being appealed is the JTC 1 decision to approve the draft. The text mentioned in the Directives and by the appellants is not germane to that decision, which must be taken on the basis of the original DIS text and the actions taken by the BRM on the comments. The provision of any revised text is not for purposes of further decision by NBs.

Now, India's appeal begins on page 13, and as you can see, it points out that the final text was supposed to be distributed within a month. It wasn't, so it was a violation of the directives, according to India, and a basis for the appeal. India wasn't saying it couldn't file an appeal until it had the final text, but rather that ISO didn't follow the rules, which specify, they believe, that NBs should have it prior to the deadline for appeals to be filed. Since they didn't have it, India suggested a lengthening of the time to appeal.

He suggests that everyone knew what was happening at the BRM, that they knew in advance how it would go, and they had the option to vote no, and they mostly didn't, so what's the beef?

The P-member and O-member voting was all carried out correctly, as the ISO document confirms. Again, it should be obvious that such things were carefully decided in advance of the meeting. I accept the procedural description in the Directives is unnecessarily arcane here - it was my problem too.

The voting at the BRM was the result of attending NB delegations considering all available options and choosing what they thought was the best one. The NBs knew what they were doing, and appreciated the constaints of the situation. If any NB thought the BRM was inadequate they could subsequently disapprove the DIS (as they were repeatledly informed). Overall, they did not.

The voting was all carried out correctly? Then why are four national bodies appealing? And may I point out that India did vote No? So did Brazil. So did South Africa. So did Venezuela. Is he seriously saying that NBs that voted no can't appeal? There can be no appeal on that issue, because he asserts it was all perfectly done? Says him. Is he saying that if you were confused at the BRM, and we know some were, as to what they were voting on in the bulk vote, that there can be no appeal, because it's somehow too late to bring it up? If any of you can help me to get all the appeals into text, I would appreciate it very much.

Alan Bryden, one of the authors of the document sent to the TMB, was asked by Reuters if OOXML has damaged ISO's reputation. ISO has placed the entire interview on its website, and here's his answer:

Although OOXML has certainly been a high profile case, particularly because of the existence of the Internet and the World Wide Web, it is not the first controversial issue that ISO has had to deal with. Both in the past, and in this particular case, the robustness of the ISO/IEC processes have proved their value and, irrespective of the outcome of the current appeals, we are confident that the robustness of the system will again lead to the answer the market place wishes to see and, in fact, reinforce ISO's credibility.

They know we can see them, right?

I wouldn't bring up the marketplace, if I were ISO, unless one wishes to point out that even Microsoft isn't using this standard and has said rather clearly it won't any time soon. Why would it? In fact, *could* it?

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