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Microsoft's Covenant Re Patents on Office XML Reference Schemas
Wednesday, November 23 2005 @ 01:45 AM EST

Here's Microsoft's Covenant Regarding Patents on its Office 2003 XML Reference Schemas. Andy Updegrove has already posted a comparison with Sun's recent covenant, and as you will see, Microsoft's comes up short in the comparison. (You might want to reread Simon Phipps on the Sun covenant also.) Updegrove:
The upshot is that the Sun covenant is far superior in several important respects to the Microsoft pledge.

This raises the question: Why? Certainly, Microsoft must have expected that a comparative analysis like this would be done almost immediately, so it must have had a strong incentive to match the Sun covenant as closely as possible, and it decided not to. Again: Why?

There are three possibilities. The first is that it has evil entrapment plans afoot, but I really don't think that is likely to be the case, and certainly not in each instance, since it would be rightly pilloried for doing so. The second is that it hasn't gotten far enough through the knothole to bring itself to go as far as Sun did.

The third is that it has made the calculated decision that this is as far as it needs to go to obtain the objective that it is trying to achieve, which is to head off ODF at the pass.

Which is it? My guess is that it's a combination of 2 and 3.

I have my money on 3, if I can only pick one. If I can have as many as I like, I choose 1, 2, *and* 3. Joking. I have to read it more carefully before I reach any firm impressions, but I wanted to post it right away so we can evaluate together. But perhaps this will help you to understand part of what OSDL is striving for with the Patent Commons, namely to avoid covenant proliferation, whereby no one knows what each one says without painstaking analysis. Diane Peters, OSDL's General Counsel, for example, was quoted in eWeek as saying that one goal the Patent Commons is to avoid the trap of commitment proliferation and instead to work toward creating a standard for Open Source covenants or commitments:

"This way, people will be prevented from making one-off commitments. If everyone made their own commitment, the way open-source licenses proliferated, it could make it impossible for people to use them."

Having to analyze each new covenant, like we are now doing with Microsoft's, to make sure there are no gotchas, and even more simply, to just try to understand what each clause means, and then having to cross-check and compare with others' covenants, is really something that in an ideal universe you wouldn't have to do with each new commitment. If there were just a few standard covenants which the lawyers could analyze once and for all, it would make it possible for easier comparisons, with no surprises, and greater certainty. So now you have a real-world example of what OSDL is talking about. Let's face it. It's hard work analyzing a license, even for experienced lawyers like Updegrove.

*****************************

Microsoft Covenant Regarding Office 2003 XML Reference Schemas

Microsoft irrevocably covenants that it will not seek to enforce any of its patent claims necessary to conform to the technical specifications for the Microsoft Office 2003 XML Reference Schemas posted at http://msdn.microsoft.com/office/understanding/xmloffice/default.aspx (the “Specifications”) against those conforming parts of software products. This covenant shall not apply with respect to any person or entity that asserts, threatens or seeks at any time to enforce a patent right or rights against Microsoft or any of its affiliates relating to any conforming implementation of the Specifications.

This statement is not an assurance either (i) that any of Microsoft's issued patent claims cover a conforming implementation of the Specifications or are enforceable, or (ii) that such an implementation would not infringe patents or other intellectual property rights of any third party.

No other rights except those expressly stated in this covenant shall be deemed granted, waived or received by implication, or estoppel, or otherwise. In particular, no rights in the Microsoft Office product, including its features and capabilities, are hereby granted except as expressly set forth in the Specifications.


  


Microsoft's Covenant Re Patents on Office XML Reference Schemas | 238 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off Topic
Authored by: bbaston on Wednesday, November 23 2005 @ 01:58 AM EST
Remember to provide links and post in HTML mode.

---
Ben, Groklawian in training
IMBW, IANAL2, IMHO, IAVO
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold
Have you donated to Groklaw this month?

[ Reply to This | # ]

Corrections
Authored by: bbaston on Wednesday, November 23 2005 @ 02:01 AM EST
Please post corrections here so PJ can find them. Thanks!

---
Ben, Groklawian in training
IMBW, IANAL2, IMHO, IAVO
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold
Have you donated to Groklaw this month?

[ Reply to This | # ]

  • Office Versions - Authored by: Anonymous on Wednesday, November 23 2005 @ 04:47 AM EST
Some more critique
Authored by: bbaston on Wednesday, November 23 2005 @ 02:12 AM EST
Such a short statement should be easy to analyze, so let me have a go.
Covenant means contract. Contract isn't license. Being GPL-compatible is thus impossible.

"conforming parts of software products" means what? If it's part of FOSS it doesn't conform?

"This statement is not an assurance" seems to be a true statement.

Call me overly cautious? Pessimistic? Paranoid?

---
Ben, Groklawian in training
IMBW, IANAL2, IMHO, IAVO
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold
Have you donated to Groklaw this month?

[ Reply to This | # ]

The Next 30 days (reminders anyone)
Authored by: Anonymous on Wednesday, November 23 2005 @ 02:15 AM EST
Court dates, comments (US, Europe, anywhere). ok?
Got any in mind to re:

[ Reply to This | # ]

I'm still skeptical
Authored by: Anonymous on Wednesday, November 23 2005 @ 02:33 AM EST
Anybody else who expects this to change as soon as M$ managed to push ODF out of
the market? Or is such a covenant legally strong enough to be truly irrevocable?
Just asking, I am not a US lawyer ;-)

[ Reply to This | # ]

"necessary to conform"
Authored by: Minsk on Wednesday, November 23 2005 @ 02:44 AM EST

Now maybe it is just the paranoid engineer in me talking (there is certainly no lawyer in here), but does not "patent claims necessary to conform to the technical specifications" fail to cover claims:

  • that apply to optional requirements;
  • on the good/obvious technique for satisfying a requirement where there is a poor/subtle approach not patented by MS (even if patented by someone else); and
  • that are infringed by an application of the specification (cynical e.g. "use of blah-de-blah in a word processor")

Hopefully just me being cynical. The "necessary to conform" language keeps cropping up, and I always wonder if the lawyers actually mean to use the technical definitions of "necessary" and "conformance".

Chris

[ Reply to This | # ]

Microsoft's Covenant Re Patents on Office XML Reference Schemas
Authored by: kwatson on Wednesday, November 23 2005 @ 02:48 AM EST
The use of a WWW address to reference your purported rights has been used before
to perform later modification of the rights by simply changing the web page
(said page in this case being completely under uSoft's control). The covenant
given is thus worthless, imho (IANAL!).

[ Reply to This | # ]

Here are a four problems. . .
Authored by: Anonymous on Wednesday, November 23 2005 @ 03:21 AM EST
"Microsoft irrevocably covenants that it will not seek. . .."

The word 'will' is a problem. Will is *permissive*. It has the same meaning as
the word 'may'. It is not mandatory. Attend to the fact that M$ used the word
'will' in the purported granting of usage of the M$ xml schemas and
documentation.

The word 'shall' is mandatory, not permissive. Please note how M$ used the word
'shall' in the rest of their alleged covenant.

Secondly, notice how M$ only uses the word patent(s)? There is nothing about
copyright at all. Also note how M$ intends on keeping their patents insteading
of freeing them up completely.

Third, "[N]ot seek to enforce any of its patent claims necessary to conform
to the technical specifications for the Microsoft Office 2003 XML Reference
Schemas [...] against those conforming parts of software products." That
is a gotcha I believe. In my mind that statement does not cover things such as
fonts, templates, tab settings, footnotes, headers, footers, etc. I suspect
that those items are covered under the M$ word, excel or p/point mounds of
copyright and patents. As such, having the schemas and documentation is, more
or less, worthless.

Fourth, "No other rights except those expressly stated in this covenant
shall be deemed granted, waived or received by implication, or estoppel, or
otherwise." In other words, MS is refusing to GPL their purported open
standard or wannabe international open standard.

It ain't open folks and it is a scam.

krp

[ Reply to This | # ]

Binary blob not covered
Authored by: Anonymous on Wednesday, November 23 2005 @ 03:39 AM EST

Everyone seems to be missing the obvious here. The main impediment to
implementing MS XML is the binary blob containing the style information that's
embedded within the XML. The specs as posted on that page linked to in that
covenant DO NOT describe the contents of that binary blob. Which means that as
is, that blob is not covered by the covenant!

[ Reply to This | # ]

Microsoft's Covenant Re Patents on Office XML Reference Schemas
Authored by: Anonymous on Wednesday, November 23 2005 @ 03:58 AM EST
This covenant shall not apply with respect to any person or entity that asserts, threatens or seeks at any time to enforce a patent right or rights against Microsoft (emphasis added)
Ok, I know I'm paranoid... But with a company such as MS, it is hard not to be. Notice that the convenant shall not apply if someone seeks to enforce a patent (right or rights)... But it could also be read as (a patent right) or (rights...)

So, okay, I'm developping a GPL application using the MS format... MS takes it and makes it proprietary... I decide to sue them (because... well, I feel suicidal today...) but them MS lawyers say, with a large grin on theirs faces: All right but then we will sue you for patent violations... because.... "This covenant shall not apply with respect to any person or entity that asserts, threatens or seeks at any time to enforce a (patent right or) right"

Ah ah! I know I'm paranoid! Now, where did I put my pills...

NNP

[ Reply to This | # ]

VFAT too, please.
Authored by: Anonymous on Wednesday, November 23 2005 @ 04:14 AM EST

I would like to remind everyone that, if we were indeed seeing a "real change of heart" by the goodguys in Redmond, then we should also be seeing similar abandonments and covenants-not-to-sue vis-a-vis the MS VFAT patents. Very much as necessary for open and competative systems as is a release for the XML schema.

In the absense of such a release, I think we can conclude with certainty that their really is no "change of heart" from the Redmond good guys.

[ Reply to This | # ]

Could others sue?
Authored by: Anonymous on Wednesday, November 23 2005 @ 04:23 AM EST
Microsoft is reportedly already an investor in Intellectual Ventures. Suppose Microsoft handed its Office XML patents to an IP holding company like this. What's to stop them suing implementors for license fees? - giafly

[ Reply to This | # ]

Wrong Version of MS Office XML
Authored by: Anonymous on Wednesday, November 23 2005 @ 04:26 AM EST
Office 2003 XML is not what is being offered for standardization. It is Office 12 XML. They are not the same thing according to Open Document Fellowship

"Microsoft Office 2003 XML formats (these are now legacy, but included for completeness)

Microsoft Office 12 XML (these are unreleased; so comments here may not apply to the finished product)"

[ Reply to This | # ]

Embrace and Extend
Authored by: Anonymous on Wednesday, November 23 2005 @ 05:37 AM EST
Everyone's missing an important point -

The OpenDoc standard basically forbids Embracing and Extending. If you put your
own random extensions in, it's not OpenDoc any more. Microsoft's doesn't.

As MS were saying when the Massachusets thing started, they didn't like OpenDoc
because it forbids things like putting videos in documents. Or (what they didn't
say) putting in things that could easily be expressed in a standard way, but
happen to be created using a non-standard plugin (which happens to come free
with Word and happens to be seamlessly integrated into Word)

So it's entirely possible that Microsoft is happy with OpenOffice being able to
read and write its XML; it can still keep extending it with every new release,
meaning OpenOffice is always lagging behind.

Massachusets can now (or once MS finally get the license right) approve MS's
format, with the proviso that youi never use non-standard extensions. But MS
will make it difficult to work out if you're doing this, so everyone still needs
Office.

[ Reply to This | # ]

Microsoft's Covenant Re Patents on Office XML Reference Schemas
Authored by: Jude on Wednesday, November 23 2005 @ 05:54 AM EST
Microsoft has repeatedly demonstrated that they are willing to endure being
sued, and even to endure losing lawsuits, as long as they get what they really
wanted in the end. The costs of litigation and settlement are just costs. The
numbers may sound large to us, but they are insignificant compared to the
billions of dollars of future revenue that are protected or gained by these
actions.

No court has ever penalized Microsoft in any meaningful way for this behaviour,
so I expect Microsoft to keep on doing it. Microsoft is effectively above the
law.

I would not be surprised if Microsoft made this promise and then turned right
around and broke it at an opportune time. What would the injured party do, sue
them? That's been tried, and the result has always been the same: Microsoft
goes right on doing what they want to do, and the injured party goes bankrupt
waiting for the courts to act. Perhaps a judgement will be awarded, or there
will be a settlement when such a judgement looks inevitible, but it will never
make the injured party whole again. The injured party is out of the game,
usually for good. Microsoft is down a few bucks, but they've gained a market or
prolonged the life of their monopoly.

What good is any Microsoft promise, given their history of this kind of
behaviour?

[ Reply to This | # ]

  • I totally agree. - Authored by: Anonymous on Wednesday, November 23 2005 @ 07:59 AM EST
  • Dismissal ? - Authored by: Anonymous on Wednesday, November 23 2005 @ 08:11 AM EST
    • Dismissal ? - Authored by: Jude on Wednesday, November 23 2005 @ 08:24 AM EST
  • MS words - Authored by: Anonymous on Wednesday, November 23 2005 @ 08:32 AM EST
Two things to point out
Authored by: Sander Marechal on Wednesday, November 23 2005 @ 07:04 AM EST
Aside from what people have said above, I think that there are two things to
point out:

1) This is for Office XML 2003, not for Office 12 documents. And since (as Andy
pointed out) this doesn't appear to apply to future versions, this commitments
is worthless, except for those who wish to refine their Office 2003 importers.

2) Microsoft will NOT be able to fast-track this through the ISO standardisation
process. It's true that ECMA can put their standards into the ISO fast-track
process, but this only applies to ECMA standards that have been designed in an
open manner. Office XML 2003 was NOT developed in an open manner. It has been
developed in-house and then submitted as-is to ECMA. Therefor, this will most
likely fail the fast-track process at ISO. It might become an ISO standard years
later through the regular process but I doubt that. By then ISO-ODF will be a
long-standing standard so ISO may simply reject it and say "We already got
something like that".

We might see ECMA Office XML 2003 but ISO Office XML 2003 is vaporware.

---
Sander Marechal

[ Reply to This | # ]

GPL Compatible ??
Authored by: Steve Martin on Wednesday, November 23 2005 @ 07:17 AM EST

IANAL. Now that that's out of the way...

"Microsoft irrevocably covenants that it will not seek to enforce any of its patent claims necessary to conform to the technical specifications for the Microsoft Office 2003 XML Reference Schemas posted at http://msdn.microsoft.com/office/understanding/xmloffice/default.aspx (the “Specifications”) against those conforming parts of software products."

This sentence says that, if there is a software product that conforms to the named Reference Schemas, then Microsoft promises not to enforce their claims. This does not say that Microsoft licenses said Schemas. This is not issuing a license to the Schemas, it merely promises to look the other way.

The GPL contains language that requires that any patents that cover a piece of GPL'd software be licensed "for everyone's free use or not licensed at all". This document does not license the patent. Nowhere does it use the word "license", nor does it grant any explicit permissions of any kind. It simply says that Microsoft won't try to enforce their "rights" if a product infringes. In fact, it goes on to say:

"No other rights except those expressly stated in this covenant shall be deemed granted, waived or received by implication, or estoppel, or otherwise. In particular, no rights in the Microsoft Office product, including its features and capabilities, are hereby granted except as expressly set forth in the Specifications."

Catch that? "No rights ... shall be deemed granted", which certainly seems to me clearly to say that the Schemas are not being licensed, therefore this document does nothing to address GPL requirements.

Comments?

---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports Night"

[ Reply to This | # ]

Microsoft's Covenant Re Patents on Office XML Reference Schemas
Authored by: jsusanka on Wednesday, November 23 2005 @ 07:37 AM EST
all I got to say is excellent comments. I have to totally agree with all of
them.

like the one especially about how microsoft just views lawsuits as costs but it
eventually gets what it wants in the end and the little guy goes out of
business.

I think we all need to step back and look at the history with microsoft. java,
the halloween document, and the recent one with telling mp3 manufacturers they
could only use their codecs (the new guy did it - I forgot - only microsoft can
get away with telling a federal judge the new guy did it)

My interpretation of history definitely says

DO NOT TRUST MICROSOFT!!! make them play by our rules not theirs.

[ Reply to This | # ]

The trick MS will pull: implement a (slightly) different format in its own product.
Authored by: Anonymous on Wednesday, November 23 2005 @ 08:05 AM EST
MS has been observed to embrace and extend open standards (think Kerberos). MS
can not only do that to open standard that come outside of MS. MS can do that to
open standards that come from MS itself.

The point of MS's vendor lock in that all other vendors have compatibility issue
with MS products. MS breaking its own standard will do that just fine.

A way to maintain its position (in particular in MA):

1) Have MS-XML accepted as a genuine Open Standard, free licenses, free of
patents.

2) Consequently: win the bid for MA, thus maintaining its monopoly (in MA).

3) Embrace and extend the MS-XML format (either right away, or in a future
version or service pack of its products), keeping the deviations from the MS-XML
open standard proprietary.

Voila, the competition bites the dust: all vendors that have faithfully
implemented the Open Standard MS-XML have compatibility issues with MS, MS's
version of MS-XML based, products that occupy 95% of the market (MA). Status
Quo maintained.

Microsoft will, as long as they are a monopoly, not conform to open standards in
its cash cow Office. Doing so would make them vulnerable to open competition.
Conforming to open standards would hurt their market position, it would be near
suicide: MS-Office business could only get worse. If Microsoft says it will
implement open standards it won't, simply because it is not in their interest,
quite the contrary. Vendor lock-in is in their interest.


Peter

[ Reply to This | # ]

Microsoft's Covenant Re Patents on Office XML Reference Schemas
Authored by: Anonymous on Wednesday, November 23 2005 @ 09:05 AM EST

Weasel Words ™.

Uhhh huh!

Everything legal thing Microsloth has done since day one are with Weasel Words
™. Now they have to actually contend with real competition from Linux and the
GPL so their legal mouthpieces fire up the 'ol "Weasel Speak System"
to generate more Weasel Words ™. Don't trust Microsloth. Don't be fooled again.
Read between the Weasel Words lines.


Anon46

[ Reply to This | # ]

Granting MS the right to steal
Authored by: cmc on Wednesday, November 23 2005 @ 09:52 AM EST
Correct me if I'm wrong, but didn't Microsoft already grant everyone a license to use the XML schemas? If so, then this covenant will, for all intents and purposes, only cover those people to whom that patent license will be invalidated or void. Put bluntly, people writing GPL software who cannot legally distribute the software under that patent license. So now Microsoft comes to the rescue saying they won't enforce patent rights against those people. How nice of them. But there's a catch -- you have to agree to not enforce *your* patent rights against Microsoft. This sounds to me like it's giving Microsoft the right to steal your work. Let's face it, Microsoft is sick of patent litigation (when they're the defendant), and it has hurt them badly (like the infamous Eolas patent). Mind you, they're in no real danger, and even the Eolas payout was pretty much pocket change to them, but they'd like to keep that money for themselves.

Now, I would go out on a limb here and say that Microsoft released this covenant so that they can claim that their Office formats with the patent-encumbered XML schemas are now "open", because they are giving everyone the right to use them without fear of patent enforcement. They want these formats to appear open so that governments (national and state) will use Microsoft Office. But these formats are not open because you have to waive your right to pursue patent enforcement against Microsoft. What happens if you use these XML schemas under this covenant, then Microsoft infringes your patent and you sue them for infringement? This covenant then becomes void, and Microsoft will sue you for infringing their XML schemas patent. Doesn't sound so "open" anymore, does it?

Let's face it, Microsoft is no angel. They *do* infringe others' patent, whether knowingly or accidentally. This covenant is sort of a "get out of jail free" card or a bargaining tool for cross-licensing with large companies foolish enough to use the XML schemas. Nothing more, nothing less.

cmc

[ Reply to This | # ]

This is Great News
Authored by: Anonymous on Wednesday, November 23 2005 @ 10:09 AM EST
Hello Mr (or Miss) Customer, you now have absolutely no reason to delay adopting
OpenOffice. Afterall in a years time those generous guys at M$ will have a
completely open standard that anyone will be able to interoperate with using
various transparent converters. Of course it will be open - they said so didn't
they.

[ Reply to This | # ]

A Matter of Trust and Respect
Authored by: Anonymous on Wednesday, November 23 2005 @ 10:35 AM EST
At this point can we trust any action from Microsoft, they have done much to
lose any respect they may have earned. No matter what the wording of their
promise, we can no longer beleive anything they say (or seem to say).

[ Reply to This | # ]

Easy workaround
Authored by: overshoot on Wednesday, November 23 2005 @ 10:50 AM EST
Based on the following:
  1. A "covenant not to sue" isn't a "license"
  2. The patents in question are not identified
  3. This isn't binding on successors or other third parties.

So basically, MS transfers a bunch of patents to Nathan Myhrvold in return forlicenses to Intellectual Ventures' portfolio and maybe a share of any licensing revenue.

This has the nice side-effect of sidestepping any USSC finding on limitations to the use of patents for monopoly maintenance.

Myhrvold and company then discover -- surprise! that (for instance) OO.o infringes part of that collection. They file suit against OpenOffice.org and selected high-profile users and developers.

If any of the defendents claim that IV is barred by promissory estoppel, they get laughed at because IV never promised not to sue, there never was a license, and Microsoft never identified the patents in the first place so there was never anything attached to that patent by MS.

Net result, Microsoft's monopoly is once again safe without MS getting splattered by the PR fallout. The next time Nathan and Bill or Steve run into each other, they have a drink to old times.

[ Reply to This | # ]

Howabout a true open xml format, covered with DRM
Authored by: Anonymous on Wednesday, November 23 2005 @ 12:10 PM EST
Microsof is persistent in getting software to be covered with a DRM layer,
including document.

Would that be the greater plan of MS to open up their XML, but in the end this
openess is useless since you need MS DRM to access it.

[ Reply to This | # ]

Microsoft irrevocably covenants that it will not...
Authored by: Anonymous on Wednesday, November 23 2005 @ 05:34 PM EST
I was intending to write a short note to help those having problems with the
grammar of the title above. However this led my thoughts to deeper and darker
things.

Firstly, the use of the word 'will'. Let me say that I am English, so this
applies to the Queen's English, it may not apply to the President's English.
Seriously though, not all English speaking people bother with the distinction
between 'will' and 'shall'.

The phrase as Microsoft has put it is fine. The phrase is odd in the sense that
Microsoft is writing about itself but refers to itself in the third person.
'Will' is perfectly correct and just indicates the future tense - this is what
is going to happen. Changing 'will' to 'shall' generally produces a change in
meaning which may vary from negligable to significant; but in this case, it is
not really possible to change it as it would imply that Microsoft is going to
require itself to do something.

Deeper and darker: Microsoft uses the words 'irrevocably covenants' rather
lightly. I do not know what 'covenant' implies in the US, but I would have
thought an unsigned, unsealed, statement on a web page hardly met the
requirements, particularly for an irrevocable one.

Next, what do you actually get? Certainly just 2003 XML at the outside, maybe
nothing if a third party has a patent on it, again nothing if nobody has a valid
patent, you only get to use 'necessary' patents not anything that can be worked
around.

Finally, where is the 2003 XML specification? Following the links takes you to a
file that you can download; but then you have to install it. You also need
Office 2003 to view it.

Alan(UK)

[ Reply to This | # ]

Four
Authored by: Anonymous on Wednesday, November 23 2005 @ 07:24 PM EST
They really believe they have given away the farm. That's a psychological, not
a legal or logical, assessment.


I vote for one : the leopard's spots, the story of the scorpion and the frog.
If I smell sulphur next time I'm in the skate-shop, I'll switch my vote to
four.

[ Reply to This | # ]

Appear to Cover *only* patents
Authored by: rick stockton on Wednesday, November 23 2005 @ 09:16 PM EST
Sun's license appears to provide both patent licenses *and* "equivalent" non-assertion covenants for any other classes of necessary IP. But The MS license appears to cover ONLY patent-protected IP.

If future versions (or even the current version) of 'Office XML' include content which MS chooses to protect as 'Trade Secrets', I think that they are free to do so (and free to license them under whatever secretive terms they choose, or not to license them at all). Thus the "Genuine Microsoft" Office file formats become divergent and more complete than the "open" MS-Office-XML formats.

This is 100% analogous with their Kerberos trick. The bastards STILL have the nerve to claim that their Kerberos is "standards compliant".

If anyone dreams, for even a moment, that MS intends to FULLY document Office file formats for others to implement, that person needs to take another good look at this criminal company's long standing patterns of behavior: Kerberos, "Microsoft Java", the sneaky contract with Spyglass, cutting of Netscape's "air supply", the Stacker ripoff.... It's a trick.

The only REAL question is, exactly HOW is MS trying to trick us this time?

---
Rick S

[ Reply to This | # ]

"a patent right or rights"
Authored by: Anonymous on Thursday, November 24 2005 @ 07:31 AM EST
"Microsoft irrevocably covenants that it will not seek to enforce any of
its patent claims necessary to conform to the technical specifications for the
Microsoft Office 2003 XML Reference Schemas posted at
http://msdn.microsoft.com/office/understanding/xmloffice/default.aspx (the
“Specifications”) against those conforming parts of software products. This
covenant shall not apply with respect to any person or entity that asserts,
threatens or seeks at any time to enforce a patent right or rights against
Microsoft or any of its affiliates relating to any conforming implementation of
the Specifications."

Remembering that M$'s lawyers are every bit as learned as anybody else's, why do
the wordings differ between what M$ offers and what they expect as ..nearly..
reciprocal?

Why does M$ offer not to seek "to enforce any of its patent claims",
whilst asking others not to seek "to enforce a patent right or
rights"?

Why was the word, "patent" not repeated before "rights"?

"No other rights except those expressly stated in this covenant shall be
deemed granted, waived or received by implication, or estoppel, or otherwise. In
particular, no rights in the Microsoft Office product, including its features
and capabilities, are hereby granted except as expressly set forth in the
Specifications."

Why the careful distinguishing between Specifications and implementations, here
and in the first paragraph?

Are these not the minor flaws which expensive lawyers are paid to open out to
bottomless chasms? Or paid to prevent?

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Brian Jones on GPL and lawyers
Authored by: Anonymous on Thursday, November 24 2005 @ 08:32 AM EST
Brian Jones, in his blog, says :

Transferability of your solutions and “GPL Compatibility”– [...] This is why I said yesterday that it ‘could’ work with projects built under the GPL license. The prior problems with attribution and sub-licensing are now non-issues. But honestly, I am told that the GPL is not universally interpreted the same way by everyone, so we really can’t make definitive statements about how our language relates to it. That is for lawyers and courts to pass judgment on. [...]

Why " 'could' "? Why the unusual-usage quotemarks around it? Why not a simple assertive word? Why not a simple assertive word like "will"?

Do the problems of attribution and sub-licensing go away meekly when Brian banishes them? Or are they the sort of issues that we petition "lawyers and courts to pass judgment on"?

If he can solve the problems of attribution and sub-licensing so easily, why not solve the problems of GPL interpretation and its relation to M$ language the same way?

Has nobody told him that "But honestly" is the sort of thing people say to warn you that they are about to speak dishonestly?

Is Brian saying that M$'s lawyers did not examine the Covenant, very carefully, in the light of GPL, and "pass judgement on" it?

Every lawyer whom I ever hired claimed that among the reasons I paid him or her were, expert advice regarding the judgements courts and lawyers would make, and "definitive statements" about how my language relates to the other party's... Indeed, I hired them to write for me language which relates, in the judgements of courts and lawyers, definitively, how I wished. One expects M$ to hire lawyers to write, or omit to write, language such that the Covenant relates to GPL exactly how M$ wishes. One expects that their lawyers have written what M$ wishes.

If M$ wished their Covenant to have a clear and non-litiguous relationship with GPL, they would write it so.

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Questions on Microsoft's Covenant Re Patents on Office XML Reference Schemas
Authored by: dwheeler on Saturday, November 26 2005 @ 11:14 AM EST
If Microsoft has truly opened up their XML schemas, in perpetuity, for anyone to use -- then I'm delighted. But I have some concerns, which I hope will be addressed, some of which are above. I hope that lawyers will examine and address the issues. Here are a few concerns I see:
  1. This license doesn't seem to be for the eventual ECMA standard; it seems to only apply to the old Office 2003 formats.
  2. It doesn't seem to apply in perpetuity to later versions.
  3. It doesn't seem to apply to use of the concepts in other formats. OpenDocument has far more support and has had far more review, and technically seems very superior. I'd say OpenDocument is about 4 years ahead of MOOX; it'll probably take 2 years before they can even TRY to get an ISO standard, and it'll take even longer to retrofit MOOX to address issues from other organizations and competitors (MOOX was only designed to support one product, a fatal flaw for an interoperability standard). OpenDocument has support from far more organizations, has already been fixed up to truly support interoperability, it is already a standard, it is ready for ISO standarization, and has implementations available now. A likely direction is over time to add a few small bits to OpenDocument from MOOX, since the basic structure of OpenDocument is known to be sound. It'd be easier to do that than the other direction; given its complete lack of peer review, it will probably take MUCH more work to fix MOOX, involving many fundamental changes to it. MOOX was not designed to support inter-product interoperability, as far as I can tell, and it certainly hasn't gone through the multi-year multi-vendor review necessary for that... yet that's the fundamental requirement.
  4. The patent license doesn't seem to do anything about the completely unacceptable copyright/use license. Has that been abandoned? The "spec license" forbids use by competitors, for example.
  5. This doesn't seem to say anything about patents that USED to be owned by MS, or ones it knows about. Can MS just hand off the patents to someone else with a "royalty-free" kickback, or arrange a "special deal" with a third party, and make this moot?
  6. What about partial implementations? In practice, people only implement the parts of the spec they need... are they covered?
  7. What about sublicensing, a necessity for OSS implementations?
  8. Does this require the use of other technologies that are considered "out of scope", like the packaging technologies It's easy to write an incomplete spec, to which the license applies, but where actual implementations would have to (as a practical matter) implement more that would be assailed.

Microsoft is exceedingly late to the party, and I see no evidence so far that it's even trying to involve competitors to develop the standard. Real standards development involves all parties getting together and hashing out their differences; Microsoft was repeatedly asked to join the standards work, and has so far refused. Instead they're trying to get their one-off proprietary standard blessed quickly, without real peer review or repair, and that's pretty transparant. But hope springs eternal. I'm glad that Microsoft has finally realized that people want a standard everyone can use. Europe told them this in Spring 2004, including specific direction to get involved in the standards work for document formats (OpenDocument), yet at the "town hall" meeting in 2005 Microsoft openly admitted that they didn't understand that getting involved in a document standards body would be relevant (eek!). At least they're finally taking baby steps in the direction of open standards for documents. But I want to know the implications of those steps; they must allow free and open competition (any common open source software or proprietary license and any common business model, at the VERY LEAST), and allow anyone to implement the formats without any kind of disadvantage.

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