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IP Issues with OOXML - Who's Afraid of the GPL? by Brendan Scott
Monday, February 11 2008 @ 03:35 AM EST

IP Issues With OOXML (DIS 29500) -- Who’s Afraid of the GPL?
~ by Brendan Scott, Open Source Law

Out of all the free and open source licences which are available, there are two which are disproportionately chosen by FOSS developers when licensing their software. Those two are the GPL and the LGPL. Of these, the GPL is disproportionately favoured over the LGPL.1

If there are issues with GPL implementations then there are IP issues with OOXML. Any assurance that excludes implementation under these licences is just cause for the FOSS community to voice concern.

The FAQ on the OSP has this to say about the GPL:

Q: Is this Promise consistent with open source licensing, namely the GPL? And can anyone implement the specification(s) without any concerns about Microsoft patents?

A: The Open Specification Promise is a simple and clear way to assure that the broadest audience of developers and customers working with commercial or open source software can implement the covered specification(s). We leave it to those implementing these technologies to understand the legal environments in which they operate. This includes people operating in a GPL environment. Because the General Public License (GPL) is not universally interpreted the same way by everyone, we can’t give anyone a legal opinion about how our language relates to the GPL or other OSS licenses, but based on feedback from the open source community we believe that a broad audience of developers can implement the specification(s).2

Imagine if you were standing next to someone’s land and there was a sign with the details of an open access promise (OAP), setting out when you are allowed to enter the land. It just so happens that the owner of the land is standing right beside you. You turn and say to them “So, this OAP, I’m here you can check me out, can I enter or not?”.

They reply, “Well, I can’t really help you on that, you’ll have to read the OAP. It’s expressed in a simple and clear way - oh, and talk to your lawyer”.

If one thing is certain from that conversation it is that there are issues with you entering the land.

Similarly it is clear that there are issues with GPL implementations of DIS 29500. If there weren’t the answer would be phrased “A: Yes”. In fact, they still can. Microsoft can change the OSP right now by adding “and by the way any GPL implementation is permitted”. But they haven’t and I suspect they won’t.

If there are issues with GPL implementations then there are IP issues with OOXML. Microsoft implicitly concedes there are issues with GPL implementations.


1 These figures are based on data from Sourceforge and relate to the numbers of projects licensed, without being weighted by popularity or maturity of the project.

2 This FAQ indicates that those writing the FAQ believe that the OSP clearly permits implementation by some developers but not others based on the licence chosen by the developer. This raises the question of whether or not the OSP is really “non discriminatory” in effect.


  


IP Issues with OOXML - Who's Afraid of the GPL? by Brendan Scott | 192 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Disproportionate to what?
Authored by: Arnold.the.Frog on Monday, February 11 2008 @ 04:01 AM EST
The GNU licences are much the commonest FOSS licences,
and the GPL is much commoner than the LGPL. Calling
this "disproportionate" implies that somehow this
ought not to have happened.

[ Reply to This | # ]

Patents
Authored by: tqft on Monday, February 11 2008 @ 04:04 AM EST
What the OSP doesn't say.

Open the OSP page.

Start your text search function - search for patent

Notice what it doesn't say.

"To clarify, “Microsoft Necessary Claims” are those claims of
Microsoft-owned or Microsoft-controlled patents that are necessary to implement
only the required portions of the Covered Specification that are described in
detail and not merely referenced in such Specification"
I will be blunt you may get a right to use an MS patent on a toaster - but if
putting the bread in the toaster isn't "necessary to implement on the
required portion..." you could be sued if MS has the patent on bread
insertion.

---
anyone got a job good in Brisbane Australia for a problem solver? Currently
under employed in one job.

[ Reply to This | # ]

Legal advice?
Authored by: Anonymous on Monday, February 11 2008 @ 04:08 AM EST
Surely if Microsoft were to say, "Yes, this means that you can use it with
the GPL", they're giving out specific legal advice? Which is something
you're not supposed to do?

[ Reply to This | # ]

IP Issues with OOXML - Who's Afraid of the GPL? by Brendan Scott
Authored by: Anonymous on Monday, February 11 2008 @ 04:12 AM EST
This article looks like FUD to me. It's making a big fuss over the fact that MS won't comment on specific non-MS licenses, leaving it to the users of those licenses to decide what they mean. 99.9% of corporate counsel would advise not to comment on legal interpretation of outside licenses, so there's nothing suspicious about this.

And looking at the list of specifications covered by the OSP, I see several that have long been implemented by GPL code with no problem.

[ Reply to This | # ]

IP Issues with OOXML - Who's Afraid of the GPL? by Brendan Scott
Authored by: Anonymous on Monday, February 11 2008 @ 04:28 AM EST
OSP GENERAL Q2: "You must agree to the terms [of the OSP] in order to benefit from the promise"
http://www.microsoft.com/interop/osp/default.mspx#EYH

GPL 3.0: Each time you convey a covered work, the recipient automatically receives a license from the original licensors, to run, modify and propagate that work, subject to this License ... You may not impose any further restrictions on the exercise of the rights granted or affirmed under this License.
http://www.fsf.org/licensing/licenses/agpl-3.0.html

I think I cannot release a product under the GPL if it includes IP that requires the user to agree to the OSP in order to exercise his/her standard GPL rights to run, modify and propagate that work.

[Microsoft might] say that this does not matter and the program could "referenc[e] the original source". But the the OSP specifically covers rights over "making, using, selling, offering for sale, importing or distributing any implementation", not just rights to use the documentation.

Originally posted by Pete Austin at:
http://blogs.msdn.com/brian_jones/archive/2008/01/16/mapping-documents- in-the-binary-format-doc-xls-ppt-to-the-open-xml-format.aspx

[ Reply to This | # ]

By Metes and Bounds
Authored by: Winter on Monday, February 11 2008 @ 05:44 AM EST

Rob Weir already discussed this in By Metes and Bounds

Whether it is legal to implement a certain MS OOXML feature in a GPL program is determined by:

  1. The feature is covered by a patent
  2. The patent is controlled by MS
  3. The feature is covered by the OSP (not merely referenced)
  4. The OSP is compatible with the GPLv2 or v3
MS drafted and implemented both MS OOXML and the OSP. So they know which patents cover which parts and which features are covered by the OSP.

So it stands to reason that MS should:

  1. List all patents they know of that cover features of MSOOXML
  2. List all features of MS OOXML that are covered by the OSP
  3. List all FOSS licenses that are compatible with the OSP
This is a lot of work, but why should the OO.o or Koffice crew pay for MS' laziness?

Rob

---
Some say the sun rises in the east, some say it rises in the west; the truth lies probably somewhere in between.

[ Reply to This | # ]

IP Issues with OOXML - Who's Afraid of the GPL? by Brendan Scott
Authored by: Anonymous on Monday, February 11 2008 @ 05:46 AM EST
I don't see a problem in their language. What they do is just telling the
reader, that they didn't read the GPL and so can't comment on it. Yes, they
read it, and it's spreading FUD in a way. But didn't MS do so for years? It's
just their dancing around accepting the GPL.

Just see it from their side: I don't like the GPL. It is a poison to my
revenues. But I have to react on the GPL. I give parts of my IP away for free.
And then someone comes and asks me "is your promise compliant with the
GPL"? Ough, that hurts...

:-))


cb

[ Reply to This | # ]

My interpretation of the 'not universally interpreted the same' part
Authored by: jeevesbond on Monday, February 11 2008 @ 06:03 AM EST
Because the General Public License (GPL) is not universally interpreted the same way by everyone, we can’t give anyone a legal opinion about how our language relates to the GPL or other OSS licenses, but based on feedback from the open source community we believe that a broad audience of developers can implement the specification(s).

To me this read thus:

Because the General Public License (GPL) is hated by us but liked by everyone else, we're not going to give you a straight answer. The rest of the Open Source community can implement the specification(s), but we reserve the right to sue (and/or launch chairs at) those who dare cause even the smallest impact to our profit margins.

[ Reply to This | # ]

Corrections Here, Please
Authored by: edfair on Monday, February 11 2008 @ 06:43 AM EST
Please place the description in the title.

---
Ed Fair -- the "Over-the-hill" one

[ Reply to This | # ]

Newspick Comments Here, Please
Authored by: edfair on Monday, February 11 2008 @ 06:45 AM EST
Please place the newspick item name in the title.

---
Ed Fair -- the "Over-the-hill" one

[ Reply to This | # ]

Off-Topic here, please
Authored by: edfair on Monday, February 11 2008 @ 06:47 AM EST
A description in the title would be nice..

---
Ed Fair -- the "Over-the-hill" one

[ Reply to This | # ]

How about Public Domain?
Authored by: enodo on Monday, February 11 2008 @ 08:56 AM EST
I have always felt that the issue is more succinctly tested by asking if it
would be possible to write a program that is public domain that is compatible
with the "promise". For one thing, it sounds like a less political
question that way. Plus, it gets us to the same end. If you can write a PD
OOXML reader/writer, then someone can write that, without the parts of the
program that make it a useful editor (e.g. any UI). The PD bits can be linked
with a GPL editor as a module, without hte GPL bit being affected.

[ Reply to This | # ]

A more basic issue with OOXML.
Authored by: OmniGeek on Monday, February 11 2008 @ 10:59 AM EST
In a nutshell: The whole thing's a load of fetid dingoes' kidneys, to paraphrase
Monty Python.

6000 pages of impenetrable muck with built-in bugs, mysterious binary
extensions, requirements to use invalid date calculations, and specifications
telling us to DoSomethingLikeThatOtherOldUndocumentedProgramDidIt, without
detailing how. Wow, sign me up to use that as my standard file format, fer sure.


And that's even without considering the legal minefields thoughtfully provided
for our edification and ultimate financial ruin should we ever try to implement
it ourselves.

Let's be plain here: If it weren't for the efforts of the world's largest
software monopolist trying hard to force us all to use this miserable excuse for
a format, NO ONE AT ALL would ever give it the time of day. THAT is the basic
problem with OOXML; everything else is a logical consequence of the situation
described in the sentence above.


---
My strength is as the strength of ten men, for I am wired to the eyeballs on
espresso.

[ Reply to This | # ]

IP Issues with OOXML - Who's Afraid of the GPL? by Brendan Scott
Authored by: Anonymous on Monday, February 11 2008 @ 11:04 AM EST
The interpretation that makes the most sense to me is:

"We're not going to sue you simply for implementing this and releasing your
work under the GPL. However, if you takes someone else's GPL'ed work and extend
it to implement OOXML, we cannot guarantee that the original author of the
GPL'ed work will not sue you, alleging that our patent grants are insufficient
under his understanding of the GPL."

The only problem with that interpretation that I can see is that it fails to
assume enough bad will on behalf of Microsoft.

[ Reply to This | # ]

more complete analogy ...
Authored by: nsomos on Monday, February 11 2008 @ 11:16 AM EST
To make the analogy complete, the owner has a number
of his hired lawyers standing there with him, but at
the same time, there are a number of shooting-range
targets that the owner is taking aim at and occasionally
shooting. There is no way to cross the land without
getting between the owner and one or more targets.

Despite the fact that the lawyers are perfectly
capable of speech, they refuse to say anything.

I would say the only safe way to cross the land would
be with a tank incorporating not only depleted uranium,
but also triple deep lawyer plating.

[ Reply to This | # ]

Time For Chomsky & Eco
Authored by: Anonymous on Monday, February 11 2008 @ 11:48 AM EST

Be interesting to have Noam Chomsky and Umberto Eco comment on this entire issue and then maybe (maybe) rewrite the GPL.(caps stuck again ;) )

Chomsky is the numero uno linguistic expert on this planet; while Eco is one of the top semiotics experts on this planet.

[ Reply to This | # ]

IP Issues with OOXML - Who's Afraid of the GPL? by Brendan Scott
Authored by: tknarr on Monday, February 11 2008 @ 12:19 PM EST

It seems to me Microsoft is being disingenuous when it says that the GPL isn't universally interpreted in the same way. Most of the variations in interpretation of the GPL I've heard fall into two categories:

  1. Unusual technical parts, eg. how the GPL interacts with dynamic linking. And much of this isn't so much a matter of interpretation of the GPL as of copyright law.
  2. Proprietary vendors who don't put their code under the GPL giving their interpretation.
Now, the first doesn't affect the MSOOXML spec, it's not code in and of itself. In the areas MS would have to deal with with their spec and OSP, there seems to be nigh-universal agreement on the interpretation of the GPL. Which leaves only the second category. Which, oddly enough, often includes Microsoft itself.

[ Reply to This | # ]

IP Issues with OOXML - Who's Afraid of the GPL? by Brendan Scott
Authored by: Anonymous on Monday, February 11 2008 @ 01:33 PM EST
In other words:

A: No.

[ Reply to This | # ]

Open Source and Free Software
Authored by: Anonymous on Monday, February 11 2008 @ 02:44 PM EST

Brendan Scott and Microsoft both gloss over the distinction between Open Source and Free Software.

Brendan:

Out of all the free and open source licenses which are available, [GPL and LGPL] are disproportionately chosen by FOSS developers when licensing their software.
I suspect that they are chosen because they represent Free, not because Open has adopted them.

Microsoft:

Is this Promise consistent with open source licensing, namely the GPL?
The GPL has more specificity than many other Open Source licenses, why address it specifically rather than addressing the broader question of Open Source? I.e., first consider whether the OSP is compatible with Open Source. The answer will determine whether it is worthwhile to consider individual instances of Open Source licenses.

[ Reply to This | # ]

Microsoft Promises Considered Useless
Authored by: Anonymous on Monday, February 11 2008 @ 04:04 PM EST
It has been my experience that Microsoft cannot even provide a rich text edit control whose behavior is consistent from one month to the next. I am certainly not going to place any trust in some vaguely written legalistic promise from the same company.

The only thing I don't understand about the OSP is why there is so much discussion about it. Hello! It's a promise from Microsoft. Just ignore it until it goes away.

-Wang-Lo.

[ Reply to This | # ]

  • Yabut... - Authored by: Jude on Monday, February 11 2008 @ 04:52 PM EST
Not at all OT: Moglen on the Problem of Software Patents
Authored by: webster on Tuesday, February 12 2008 @ 12:27 AM EST
..
Tonite the DC Chapter of the Association for Computing Machinery (ACM), in
collaboration with the Washington Academy of Arts and Sciences, proudly
presented a talk by Eben Moglen on the dangers of Software patents. He covered
a lot of ground that is very familiar to readers here.

But he went back into the origins of the problem in England and then our
colonial history. It was a fascinating perspective. With eery and ironic
parallels he discussed the American problem of getting technical know-how to the
colonies from England. They could only do this by importing skilled
practitioners of the industrial arts. Precursors to the HB-1 Visas.

He has been a coder, a professor and a lawyer with different hats. He is
intimately involved with everything going on in the IT headlines of the day. He
made references to SCO who certainly made him busy in the corporate world.

He discussed patent trolls, the Pharma-IP interests that have so far held sway
in Washington, and the stacked Court system that has been allowed to persist.
He talked about progress and change and the decades that would be needed to fix
the system. He explained that the patent system ignores decades of code because
software patents weren't created until relatively recently.

He also talked about the strength of free software, the development by thousands
of eyes, and the GPL. He noted that even propietary business find the GPL
trustworthy and a way to collaborate with semi-trusted partners. He noted the
great progress of free software and copy left. It is succeeding because it is
better than the closed, restricted propietary method.

He noted that the revolution occurring in free software, copy left, communities,
and sharing is also occurring in other fields. He noted that we lived in an era
where society has the wherewithal to get a universal curriculum to each child by
his own laptop. He mused at how the genius of so many men is never developed
because they were not given access to education. Software, patents, trade
secrets, copyrights are all ways of restricting knowledge. He termed the stakes
the "intellectual rights of human kind." The powerful will resist the
assualt on their monopoly power, but it was coming.

A questioner pointed out that he at once detailed the problems of patent
software but then also the quality, success and power of the open source method.
Might not the open source method succeed without toppling the monopolies,
trolls, and the patent system? He then said that it wouldn't except that Vista
came along causing undreamed of progress. He gave an extended explanation why.

Someone was recording and someone was taping. Links should surface soon.


~webster~

[ Reply to This | # ]

GPL isn't universally interpreted
Authored by: Anonymous on Tuesday, February 12 2008 @ 12:35 AM EST
PJ and most people here seem to think that OSP is not GPL compatable.

The Deputy General Counsel for Red Hat thinks it is.
Clearly one of them does not understand the GPL.


“Red Hat believes that the text of the OSP gives sufficient flexibility to
implement the listed specifications in software licensed under free and open
source licenses. We commend Microsoft’s efforts to reach out to representatives
from the open source community and solicit their feedback on this text, and
Microsoft's willingness to make modifications in response to our comments.”

Mark Webbink
Deputy General Counsel
Red Hat, Inc

[ Reply to This | # ]

TaDa! Ubuntu 7.10 installed on my new thinkpad T61!!
Authored by: tce on Tuesday, February 12 2008 @ 03:00 AM EST
I named the machine (w/ XP, to never go near Mista):
- - My Last Windows Box Ever! - -

Now its time to move my friends and clients forward, one at a time...so I can
simply move on.

Thank you Richard Stallman, Linus Torvalds, PJ, Nicholas Negroponte and all
their friends!

And, thanks to David Parnas, Ken Thompson, Dennis Ritchie, Alan Kay, Rebecca
Wirfs-Brock, Kent Beck, Ward Cunningham, Dave West and all their friends too!

Thanks!
Tom

[ Reply to This | # ]

OK to standardize OOXML tied to certain criteria?
Authored by: Anonymous on Wednesday, February 13 2008 @ 03:50 AM EST
Would it make sense to give an OK to OOXML if they had to meet certain criteria
in the future and if these criteria aren't met, the standard would be revoked?

As a standard it needs at least one full implementation, due to a certain date
yet to be specified.

The implementation includes a commandline conversion tool:
- source formats: all versions of former formats, MS claims to have a need to be
compliant to.
- target formats: all formats newer than source.
- all recent platforms supported, including Mac OS, Linux and Unices.
- conversion to ODF of at least former versions up to a version yet to be
specified.
- export to PDF.
- License: OSI approved.

Fixes are allowed, if they meet at least these criteria:
- only affecting a small amount of documents, less than 5%.
- non-substantial to these affected documents.
- fully documented.
- if issues can't be fixed, MS has to explain these publically and the standard
has to be revoked.

If MS can't comply in time, the standard has to be revoked, applications based
on that then ex-standard need be replaced by applications reflecting this
revokation, including default support for ODF.

If MS does explain delays or issues they can't fix in a thoroughly and
full-documented manner, the then ex-standard may be changed to reflect the
issues and be resubmitted for standardization.

If MS does not comply, the standard has to be revoked permanently and all
applications based on that then ex-standard have to implement ODF as default
standard and MS formats as read-only formats. Additionally MS has to publically
state, that their formats are non-standardizable and it is impossible to convert
the formats affected to new versions of their then ex-standard.

I wrote this just in time, so it may not be practical at all.


cb

[ Reply to This | # ]

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