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Legal Counsel Advises Against Accepting OOXML Pledge
Journal written by ozmanjusri (601766) and posted by
Zonk
on Thursday March 13, @12:44PM
from the so-hard-to-keep-these-things-straight-now dept.
from the so-hard-to-keep-these-things-straight-now dept.
ozmanjusri writes "A legal analysis of Microsoft's Open Specification Promise (OSP), which was purportedly written to give developers protection from patent risk, says the promise should not be trusted. According to the Software Freedom Law Center, 'While technically an irrevocable promise, in practice the OSP is good only for today.' This is on the back of a chaotic ISO meeting to resolve outstanding specification problems. The session was described by Tim Bray as 'Complete, utter, unadulterated bulls**t. This was horrible, egregious, process abuse and ISO should hang their heads in shame for allowing it to happen.' The advice would seem to throw more doubt on OOXML's suitability as an international document standard. Microsoft responded to these assertions stating that they've already taken steps to answer these concerns"
Related Stories
[+]
Microsoft Standing Firm On OOXML ISO Vote 181 comments
christian.einfeldt writes "Microsoft has responded via the industry trade group ECMA to some of the thousands of criticisms of its submission of Office Open XML as an ISO standard. Open standards advocate Russell Ossendryver takes a look at those responses to see if Microsoft has made significant changes in either the substance of OOXML or the manner in which the OOXML specification will be maintained going forward. Ossendryver concludes that Microsoft's position has not significantly changed, but only hardened in place in advance of the Ballot Resolution Meeting which is to occur from February 25 through 29 in Geneva. While no one can say for certain whether Microsoft will succeed in having OOXML win the nod from the international community, Ossendryer thinks that Microsoft's firm stance is likely to backfire."
[+]
Developers: Developers Warned over OOXML Patent Risk 134 comments
Tendraes brings us a story about legal experts who are warning that Microsoft's "covenant not to sue" over use of the OOXML specification is both ambiguous and untested. Developers wishing to make use of OOXML are unlikely to understand the complex legal language of the Open Specification Promise, and such a document - being neither a release nor a contract - has never been tested in court. From ZDNet Asia:
"David Vaile, executive director of the Cyberspace Law and Policy Center at the University of New South Wales, said that Microsoft participants at a recent symposium on the issue found it challenging to explain how an ordinary person 'or even an ordinary lawyer' could easily determine which parts of the specification were covered. 'This lack of certainty would mean a cautious lawyer may be reluctant to advise any third party to rely on the promise without extensive and potentially quite expensive analysis, and even that could be inconclusive,' Vaile said. 'In turn, this could restrict its viability as a usable standard for less well-resourced users, including small developers and many public organizations.'"
[+]
Counter-Claims On Flaws In OOXML Meeting 96 comments
ericatcw writes "Critics have charged that last week's ISO Ballot Resolution Meeting (BRM) to decide the fate of changes to Office Open XML standards proposal was too perfunctory and deviated from accepted ISO practices, possibly in an attempt to smooth the passage of the Microsoft format. This week, the ISO 'convener' of the BRM disputed those charges, saying that voting to dispose of 900 changes to the spec at once and allowing 'O' Observer countries to vote were the correct moves. ISO released a statement backing him up. Also, Patrick Durusau, editor of the competing OpenDocument Format specification and a late convert to OOXML's passage, also said that claims the process was flawed were overstated."
The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way.
Lol, Microsoft Standards (Score:2, Informative)
Microsoft's Concerns. (Score:2, Insightful)
To perpetuate their late 80's file and OS monopolies. There is nothing subtle or difficult to understand about this.
Re:Microsoft's Concerns. (Score:5, Insightful)
There is no doubt on OOXML. It's bad by pretty much every metric one can come up with. While the Software Freedom Law Center contribution is very valuable, the summary reduces this value and snubs ISO at the same time: the decision and process is not up to MS here, it is up to ISO. ISO is not in the business of creating standards. It has the purpose of evaluating finished specifications, which OOXML is clearly not.
There's not a single implementation of OOXML in the wild. There are variations and partial implementations, but since the specification itself is neither complete nor finished, it's not ready for ISO.
All MS is doing here is wasting time and money. When MS gets serious about interoperability, it will adopt the OpenDocument Format [computerweekly.com].
Re:Microsoft's Concerns. (Score:5, Insightful)
The issue here is that the ISO seems poised to declare an unimplementable, patent-poisoned format the thumb's up, so that Microsoft reps and resellers can go to various governments, institutions and corporations currently looking to mandate open document-only formats and say "We've got an ISO ceritified format here in OOXML, so you don't have to use that nasty ODF".
I wouldn't care if there were a hundred open document formats, as long as anyone, using just the specs in a cold room could implement software that could open the file. We all know that that is impossible for OOXML, because it's incredibly complex, invokes a number of proprietary specs which a guy in a cold room couldn't access. So such a guy would be faced with precisely what the OO.org and KOffice teams have been faced with, reverse engineering to get it to work.
I'm sure Microsoft will trot out all its spokespersons, both open (like a guy from the Office team) or in secret (like any number of shills you'll see here). If Microsoft was truly interested in an open spec it would immediately instruct the ISO that it's removing OOXML until it's simplified and has no links to proprietary formats, and then would release it under an accepted open license (and not one of its crapola licenses).
Re:Microsoft's Concerns. (Score:5, Insightful)
You make some good points and I agree with most of them. As for multiple standards, I agree in principal, but in this particular instance I think mitigating factors apply. Multiple standards are fine, but when a criminal monopolist completely ignores ongoing development of an open standard and intentionally eschews implementing that standard and waits until that real standard is approved and implemented by potential competitors before attempting to get approval for a different, new standard... well I think that constitutes abuse of their monopoly position to derail the existing standard. Multiple standards are fine, in general, but when dealing with a market where one company is a monopoly, waiting until competitors all have working versions of a different standard before introducing one of their own compromises the free market even if the standard for OOXML itself was legitimately open.
Re: (Score:3, Insightful)
Re: (Score:3, Insightful)
It's a trap! (Score:5, Funny)
irrelevant? (Score:3, Insightful)
As for the "agreement" any decisions or choices offered by any corporation will always be biased and in their interests instead of the users.
Re:irrelevant? (Score:5, Insightful)
I disagree. I think your perspective is skewed, being a Slashdot reader you have heard a lot about this issue. You also probably have some understanding of this issue and the reasons why a truly free and open standard is beneficial to users and non-monopolist developers.
The average person (politician or government bureaucrat or corporate purchasing agent) has no understanding of what open standards are or why they are beneficial. Simply naming something Open Office XML is enough to pass muster with most people who have a vague notion that "open standard" is somehow vaguely associated with "good." Making ODF the de facto standard in such an environment is by no means a done deal. For an example of how this sort of thing works, look at MS's influence in various government purchasing decisions for office software. Or, look at the Library of Congress, who MS just paid to standardize on using the proprietary standard "silverlight" instead of the open standard AJAX. They don't know or care about the difference, especially in the face of a fairly small donation from MS. They are now locked into an MS proprietary format and MS only servers for the future unless they want to spend a large sum trying to break free. And what will happen if 5 years down the road MS drops some browsers or OS's or combinations from their supported list (as they have done with IE and Active X for the Mac, or with their proprietary macros on the Mac version of MS Office)?
Just because most people on Slashdot know that OOXML is not a real open standard does not mean the average decision maker does, or if they do, if they care about what happens down the road compared to the public perception of what will happen down the road.
So this article is saying that... (Score:3, Insightful)
How was this news, again?
For those of us without lawyers on retainer... (Score:5, Interesting)
Now Knowlton may have some good points in his rebuttal, but AFAIK he's not a lawyer. Until some Microsoft lawyer (or some other lawyer who is versed in software licensing and patent law) wants to step up and rebut the SFLC, I'm going to be inclined to believe that the OSP is not strong enough to protect me from lawsuits.
Microsoft has an absolutely abysmal record when it comes to interoperability and free and open access to their file formats. "Embrace-Extend-Extinguish" is their watchword. In March of 2005 I wrote to Microsoft's legal department and the Free Software Foundation, asking if the licensing of the Office 2003 XML Schemas (the ancestor of OOXML) were compatible with the GPL. Microsoft didn't even give me the courtesy of a reply. So even if, as Knowlton claims, "[Office] Open XML's terms are the same or more liberal than rival document standard OpenDocument," if there's any doubt in my mind as to whether I am legally protected when working with the OOXML format, why should I believe that Microsoft will act in good faith in the future when it never has in the past?
Re: (Score:3, Informative)
Re:Talking ab out pledges... (Score:5, Informative)
Eben Moglen was contacted (lawyer for FSF) and said that CPhack [robinlionheart.com] had that problem, and was never resolved.
The best explanation is that explicit language would be needed to be added in the GPL and other type-like liceses to hold true. As it seems, as long as there is not intertwining copyright interests, redacting the GPL seems legal. Yuck.
Re: (Score:3, Informative)
Re:Talking ab out pledges... (Score:4, Informative)
Don't take other people's GPL modifications to your code and commercial license them! You aren't the copyright holder to that stuff. You have to pay them or otherwise get the rights from them before you can do that.
Bruce
Re:Talking ab out pledges... (Score:4, Insightful)
Working Bruce's explanation into a practical example:
Re:Talking ab out pledges... (Score:4, Insightful)
Unlikely, since the GPL is a license, not a contract.
Re: (Score:3, Informative)
Re:Irrevocable is irrevocable. (Score:4, Interesting)
So, it makes perfect sense, as stated by SFLC, that the license is irrevocable, but has no irrevocable value, since Microsoft has discretion to destroy the value of the licensed behavior. To quote directly:
This makes perfectly good sense. The promise is irrevocable. But it's "good"ness may easily be destroyed, by destroying the value of the promised license.
Caveat: I am reporting what I read in the SFLC's article. I have not checked their facts independently.
Re:Irrevocable is irrevocable. (Score:5, Insightful)
Re: (Score:3, Informative)
Very true - which is why it is a stupid idea to use the GPL for a file format.
Microsoft is insincere. But that's not news. (Score:5, Informative)
Microsoft, in contrast, hasn't bound itself to the GPL during the development of any existing OOXML implementation. Microsoft has also behaved in a very hostile manner, for example spreading FUD about their patents (we still don't have the list) covering our existing software. So, we don't have much reason to read their agreements in a favorable light.
Bruce
Re:The 'legal analysis' is flawed (Score:5, Insightful)
I'd actually argue that it is reasonable to be biased against MS in this regard by anyone who has viewed their past conduct in this area. A whole lot of MS partners who implemented technologies with Microsoft have since been driven out of business by Microsoft. Further, Microsoft has a history of breaking both contract and criminal law and then tying up the courts with legal maneuvers until the issue is moot. Just look at the number of settlement MS has paid out, knowing that they have made more money than that by breaking a contract or law.
Some of the points made by Mr. Knowlton completely ignore the context of the situation. He claims that other companies have not provided any better promises with regard to ODF. This, for example, ignores that no one company is the sole originator or implementor of ODF and that none of the developers implementing it are monopolists who can leverage that monopoly to undermine the free market. If Sun deviated from open standards in a future version of ODF, nothing stops their customers from migrating to another solution from another vendor. If MS deviates from open standards in a future version of OOXML, they will become a de facto closed standard just as .doc is now since they do have undue influence on the office software and desktop OS markets. Anyone who forks OOXML in future (and by forks I mean uses a version that is not what MS is using, even if MS encumbers their version with patents or DRM or anything else) will be trying to compete fairly against a monopolist which is a losing proposition economically.
I'd say the majority of his arguments fall into the same category of fallacy as people here who argue that because Apple bundles Safari with OS X, MS should be able to bundle IE with Windows. It completely ignores that MS's OS constitutes a monopolized market, while Apple's OS X does not. Many people are ignorant on this topic and still others willfully ignore the difference in order to try to make a more persuasive (but flawed) assertion. Basically, the logical flaw being presented by Mr. knowlton is equivocation where someone might argue that everyone should be free to travel anywhere in the US they want, intentionally ignoring the fact that one person is a criminal on parole with a history of being a flight risk, whereas the other people to whom that person is being compared are not convicted criminals and have no reason to flee the courts.
Re:The 'legal analysis' is flawed (Score:5, Informative)
Further, he links to the SUN agreement saying that it is the same as the MS one in regards to implementations, SUN explicitly gives you the right to implement ODF 1.0 *AND ANY FUTURE VERSION* of ODF. This 100% contradicts what he says in his article (he says sun and IBM also have provisions that limit the applicability of the promise to a single version or set of versions of the specs in question). He is either willfully misrepresenting or he is ignorant.