The Blind Legal Scholars and Standardization, by Pierre Larouche
Over the past years, as standardization took an increasing place in my research agenda, I frequently thought of the ancient Indian fable of the Blind Men and the Elephant. In this story, a number of blind men observe an elephant: each of them comes into contact with one part of the elephant only, leading each one to make outlandish claims about the elephant. No one manages to perceive the animal as a whole until the Rajah steps in to set them right.
And so it goes with legal research about standard-setting, it seems. A first legal scholar, specializing in EU law, will tend to hold a fairly positive view of standardization. She will have read about how EU standardization policy played a central role in some of the greatest successes of the EU. The fabled New Approach, in 1985, opened the door to a wave of European standards – developed by CEN, CENELEC and ETSI – that contributed to removing barriers between Member States and cementing the four freedoms of the Single Market. Firms can rely on the voluntary standards developed by these three organisations in order to avoid additional conformity checks when exporting their products. Member States also use these standards in their public procurement. That scholar will also have read about the strategic use of standards by the EU for industrial policy purposes, in order to advance the interests of EU manufacturers. Here the poster child for the instrumentalization of standardization within a pro-active public policy is the GSM story – even if the EU never managed to quite replicate it.
The second scholar is a trade law specialist. He will see standard-setting as a potential impediment to trade. He realizes that standards can make a positive contribution to international trade, but he also suspects that States can hide behind national standards for protectionist ends. Accordingly, in keeping with the approach under the WTO instruments regarding standardization (mostly the TBT Agreement), he will focus his efforts on legal measures to ensure that standards development and application do not run afoul of basic trade law principles, such as non-discrimination, national treatment and proportionality.
The third scholar is a competition lawyer. She will consider how standard-setting can give rise to violations of antitrust or competition law. She sees standard development as an open invitation for participating firms to collude, by fixing prices and terms of trade, or by favouring a specific technical solution over a perhaps more meritorious rival. She also knows that standards can have an exclusionary effect, if firms are left outside of the standardization process or prevented from using standards. She is well appraised of the case-law and the agency guidelines on the topic, in both the USA and the EU.
The fourth scholar comes from intellectual property. He might be a latecomer to the exercise, but he will see standardization as a hotbed for patent disputes. From the moment standard development bodies abandoned their initial reluctance to include patented technology into standards, he became familiar with terms such as patent ambush, patent holdup, patent thickets, royalty stacking and more generally the pros and cons of FRAND commitments on Standard-Essential Patents (SEPs).
The fifth legal scholar is interested in innovation and law. She is still finding her way around this emerging research area. Still she will have noticed that standard-setting – especially when it concerns compatibility and interoperability – can be a means of channeling innovation along a specific path, by structuring the relationships between firms in a given ecosystem.
Like the blind men in the fable, none of the legal scholars is able to comprehend standard-setting in its entirety. Remarkably, though, their prescriptions tend to converge: they conclude that standard-setting is a black box, best left to engineers, as long as engineers behave as lawyers think engineers are supposed to do. In essence, lawyers expect engineers to be guided by technical considerations with a view to setting the best possible standard. In order to ensure that extraneous considerations do not come into play, each legal scholar can put forward some requirements arising from the law in his or her research area. These requirements constrain the standard development procedure and ancillary policies: they do not govern the outcome, which is for the engineers to figure out, within the black box.
Engineering Rules, by JoAnne Yates and Craig N. Murphy, is to the blind legal scholars what the Rajah was to the blind men in the fable. It points to the existence of a whole that is greater than the respective parts that each of them can sense. Even if not a work of legal scholarship as such, Engineering Rules provides legal scholars with a rare opportunity to consider standardization on its own merits, as an endeavor with its own history and its own understanding.
The legal scholar is bound to learn much from Yates and Murphy’s work. Maybe the most consequential insight is that inside the black box, engineers do not behave as lawyers would expect. They are not driven solely by technological considerations, nor do they aspire to be. Rather, as Yates and Murphy demonstrate, throughout the modern history of standardization, leading figures were inspired by a drive to contribute to the greater good. Some will undoubtedly argue that engineers were naïve or idealistic in their vision. Nonetheless, Yates and Murphy make a convincing case that standard-setting can be more than a mere technological exercise, yet without degenerating into a battle of trade or business interests, as most legal scholars fear.
In this respect, the treatment of the principles of balance of interests and voluntary consensus decision-making, throughout Engineering Rules, provides a perfect example of how engineers were aware of the broader significance of their work from early on. Well before the law had anything to say in this respect, the engineers who participated in standard-setting had understood that their efforts would be fruitless if they did not bring to the table all interested stakeholders – typically producers and users of the standardized product. Similarly, they saw that consensus building was more conducive to agreement than majority voting, and that it endowed the resulting standard with legitimacy. Later on, the law merely took over these principles as they had already been developed by engineers, with an eye on the greater good.
It is to be hoped that Engineering Rules will be read by legal scholars, and that the work of Yates and Murphy will help them gain a more complete view of standardization, on its own merits.
Pierre Larouche is a professor of law at the University of Montreal.
This post is part of a symposium reviewing JoAnne Yates and Craig N. Murphy‘s Engineering Rules: Global Standard Setting since 1880 (John Hopkins University Press). Previous posts in the symposium can be viewed here.
 The exact origin of the story seems unknown, but modern renderings can be found in a 19th-century poem by J.G. Saxe, “Blind Men and the Elephant”, as well as in the children book by L. Quigley, The Blind Men and the Elephant (1969).