As noted in the course description, the primary deliverable associated with the Seminar is a research paper of 25-40 pages, including an annotated bibliography. However, with instructor (my) pre-approval, research projects that manifest in a different format — but represent an equivalent scholarship effort — can suffice as well. I note an example in the course description: a comparative analysis of intellectual property policies of various standards development organizations, represented in chart form, might be substantially less than 25 pages but nonetheless embody an appropriate research effort. I am very open to creative and non-traditional ideas for research projects, including projects that are embodied in alternative formats, such as audio or video (see the “Code City” example below). At the students option, I would like to post all research projects on this website.
This page provides some ideas for both types and substance of potential research projects. The ideas here are far from comprehensive, and students are encouraged to explore concepts not identified here.
Types of projects:
1. Traditional law review-style research papers. The “lit review” document found here (.pdf) provides a fairly comprehensive list of recent scholarly articles on various standards issues. Student could contribute this style of article to the literature.
2. Literature reviews. The literature review linked above lists articles and abstracts, but provides relatively little added value. Students could build on this model, however, and create a more comprehensive literature review that, for example, provides more analysis and categorization of different arguments made on a particular topic.
3. Case studies. This page at talkstandards.com lists 10 case studies of particular ICT standards development organizations (SDOs). Students could produce case studies exploring one SDO in depth.
4. Comparative case studies. Students could pick several SDOs and contrast particular aspects of each.
5. Quantitative/empirical research. Students could focus on accumulating and analyzing empirical data.
6. Collaborations. As noted on the Seminar home page, students may be able to identify opportunities to collaborate with participants at the Standards and Consortia Roundtable.
7. Audio/visual format. Potentially tricky, as the student work product must demonstrate sufficient scholarship, not just a lot of work creating appealing content. However, done right, this could be a fun and effective approach. The paradigm here is something like public.resource.org’s “Code City” (slide show; or start here and click “slideshow”). One idea, for example: some of the points made in Code City are controversial; if a student was so inclined, a “response” slide show that addressed counterarguments could be clever and would would get some attention. More broadly, however, the point is that I’m very open to the use non-traditional formats for the student projects.
Example substantive topics:
The topic ideas below have a down-in-the-weeds legal flavor to them, but might spark some thoughts about the kinds of issues that could make for a good research project. The list is far from comprehensive. Other ideas might be gleaned from scanning the lit review linked above, or by, e.g., reviewing the topics under the heading “Masters Thesis / Internships” on this page. Skimming the categories and select articles at the ConsortiumInfo.org Standards MetaLibrary might also prove helpful.
- Facilitating transitions from consortia to SDO. Increasingly, smaller consortia desire to perform an initial phase of specification development and then transfer specifications to more formal SDOs for additional development. One key challenge is that the copyright, patent and/or confidentiality terms of a consortium may not enable this sort of transfer (in some cases the problem is perhaps analogous to incompatible open source software licenses). Additional complexity arises in defining an ongoing relationship between the consortium and SDO, particularly in an international context. Are there best practices for (a) setting up a consortium in a manner that facilitates later transfer of a specification, and (b) drafting a Liaison Agreement or similar document that enables an ongoing relationship between entities?
- Patent commitment “stickiness.” Critics of the FTC’s actions in the N-DATA case, where the FTC intervened to force a subsequent patent owner to honor standards-related licensing promises made by a prior owner, have argued that “large sophisticated companies that deal with intellectual property licenses on a regular basis, especially those within standard setting bodies who have the organizations’ bylaws to employ for any changes that make sense for the group as a whole, do not need such protection.” What steps can/should companies and consortia/SDOs take to avoid N-DATA-like problems? Are there “best practices” that we can document?
- Legal and ethical duties in consortia; maintaining attorney-client privilege. Employees of companies who also serve on boards of incorporated consortia are sometimes confused by their dual role, finding it challenging to navigate both their obligations to their employer and their obligations as directors for the independent organization. The role of lawyers in this scenario can also be complex, as in-house counsel is sometimes asked to provide support on consortia matters, and counsel for consortia may be exposed to intra- and inter-participant company matters. Additionally, the involvement of non-lawyer contractors who supply support services can add complexity. Are there best practices we can discuss and document that enable all parties to meet their ethical obligations and maintain attorney-client privilege where appropriate?
- Choosing entity structure. Consortia are frequently structured as 501(c)(6) non-profits, although many alternative models also exist. What are the risks and benefits of the 501(c)(6) approach? What are the pros and cons associated with various alternatives?
- Streamlining IPR review periods. Consortia and SDO IPR policies, whether RF or RAND, frequently include review periods where parties can make certain opt-out decisions. For participants trying to drive a standard, the periods can be frustratingly long (one recent observation: “it would take us 120 days to approve a blank piece of paper”); in-house patent counsel inevitably complain about them being too short. What are the goals of review periods? Could those goals be accomplished via other mechanisms?
- Excessive complexity or healthy competition? A recent ITU communiqué called the global standards system “too complicated and fragmented,” and called for “improvements to the present standards scenario so that SDOs complement rather than compete with one another.” Where some see unnecessary complexity, others see a healthy competitive market dynamic, however: stakeholders are able to “vote with their feet” if they believe that a particular forum is ineffective or unresponsive, and launch new forums as needs dictate. Is the global standards system too complex and fragmented? If so, what solutions are indicated? What goals would these solutions be intended to advance?
- Role of consortia v. formal SDOs. In the context of exploring the relationship between fora/consortia and formal, government-sanctioned SDOs, a recent EU analysis described different types of consortia: “On the one hand, there are well-established organizations which have implemented advanced open, transparent and effective processes and which have a broad membership including all interested stakeholders. On the other hand there are ‘closed groups’ not open to everyone and with a very limited scope and set of objectives.” The analysis implied that governmental policymakers should favor the former over the latter. While open and transparent processes have an obvious appeal, does this distinction undervalue the pragmatic reality that relatively ‘closed’ processes have produced many critical ICT industry specifications? What criteria should policymakers consider when adopting consortia-produced specifications as formal, government-sanctioned standards?
- Patent pools. Patent pools are sometimes seen as a compromise between RF and RAND IP models. Is this an accurate perception? What are the benefits and drawbacks of pools? Do different pool models (i.e., more ‘open’ v. more ‘closed’) raise different issues?
- Governmental role with standards. When should government be involved in the standards process? What criteria indicate intervention? (e.g. competition law goals, consumer protection, protect political values, innovation goals, national technology strategies, etc.) How should government intervene? (e.g. procurement decisions, active regulation, participation as a stakeholder, etc.)
- Patent hold-up. How serious is the hold up problem? What sort of solutions are most effective: antitrust/competition law? (private cause of action or regulatory? Should regulators be deferential or suspicious?) Existing patent doctrines? New patent doctrines (e.g. “patent estoppel”)? Contract? Will ex ante negotiations work? What about SDO non-participants?
- The RAND debates. Does RAND work? Can it be defined? Should it be defined? Can a RAND promisor still get an injunction, or have they bargained from a property rule to a liability rule? How should RAND royalties be calculated? Do RAND rules produce “better” standards?
- Defining “open standards.” What makes a standard “open”? Many different definitions have been proposed. The traditional view, represented by organizations like ITU and ANSI, has focused on accessibility and process, but permitted RAND licensing terms. More recently, some organizations have taken the position that only standards that can be implemented royalty-free and that are available on an unrestricted basis to all interested parties should be deemed “open.” In addition, beyond the royalty question, the openness debate raises issues about transparency, access, balance, fairness, change control and a host of other issues. Are there points on which we can find consensus?
