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What is Wrong with RAND?
Thursday, April 17 2008 @ 12:02 PM EDT

I wrote the day before yesterday that RAND terms can be discriminatory, and that in fact due to the Microsoft OSP, OOXML is discriminatory against the GPL and Open Source licenses, despite being made available under RAND terms. Microsoft's Jason Matusow responded with a blog entry suggesting I need to bone up on standards and licenses. Why Microsoft folks can't be polite is a mystery to me, but I persist in responding with decency. He thought it would be helpful to hear from lawyers on the subject. So, I did some research for him, and I find that there are quite a number of lawyers who agree with me.

So here you are, Jason: what is wrong with RAND from folks whose credentials you will respect. They are not radical or extreme, and neither is Groklaw, as you will see. The problem, rather, is that Microsoft is wishing that time would stand still for it, and that the old, proprietary software model were all that there was in the world. However, like the music industry, Microsoft -- and standards bodies -- now have to cope with the new and modern software development model and licenses that foster and underpin it, not just the old-fashioned, closed, and patent-licensed model that Microsoft represents. And isn't it you at Microsoft, and your friends at CompTIA, who have told the governments of the world that one business model should not be favored over any other? How much less should a standard?

It isn't just me noticing this problem with RAND terms. Some lawyers have already said pretty much the same thing I did, as collected by Wikibooks. Here's a lawyer for you, Seow Hiong Goh, Director of Software Policy/Asia, Business Software Alliance, yes, the BSA itself:

Certain FOSS licenses, particularly the GPL (see note below), contain restrictive terms concerning free redistribution, derived works and distribution of license that create a direct conflict with RAND terms. Even where there are no royalties or other fees associated with a RAND patent license, the GPL is still at odds with the field-of-use limitation, restriction on sublicensing and reciprocity requirement, the three common terms in standards-related patent licenses....

Note: Unlike the vast majority of FOSS licenses, the GPL prohibits the distribution of software under the GPL if the software includes any patented technology that is licensed under terms at odds with the GPL. Hence, the requirement that the software be freely distributable, for example, is at odds with any RAND license which permits reasonable royalties, and accordingly the patented technology associated with such a RAND license may not be included in FOSS distributed under the GPL. A developer of FOSS distributed under the GPL may be unable to implement open standards covering RAND-licensed patented technology in its products, thereby impairing such software's interoperability potential.

It is a known problem, therefore. Responding that RAND is widely used and you believe in patents doesn't alter the effect of this combination Microsoft crafted. The end result is that OOXML is not usable by your number one competition, and you have to know it. Responding that it's up to your competitor to change its license terms is not a realistic option, since that is the same as saying that the entire development model of FOSS has to change and be more like you. The whole point of the model is to encourage sharing, and that is why Linux and other projects continue to advance so rapidly, while you folks give us Vista. We don't wish to be like you.

Dan Ravicher of the Software Freedom Law Center has also explained how RAND terms can be discriminatory:

RAND, to the extent that it has the historical meaning of allowing an owner of a patent that covers a standard to charge a license fee to any person that adopts the standard, is an oxymoron for free and open source software, because any requirement of the charging of a license fee is - by definition - neither reasonable nor non-discriminatory. Thus, most RAND licensing is - in fact - unreasonable to and severely discriminatory of free and open source software because it precludes such software from existing. As such, standards covered by patents licensed on a RAND basis generally cannot be implemented into free and open source software, unless the RAND license is actually royalty free.

See? And that is precisely the problem with the OSP. RAND worked fine when everyone was proprietary and all followed that closed off model; but it clashes with the new open model, and some adjustment needs to be made to accommodate the new, along with the old. That is obvious. It's no more fair for Microsoft to demand the GPL and other FOSS licenses stop being what they are than it would be for FOSS to demand that Microsoft has to go GPL. We make no such demand, and Microsoft shouldn't try to compel the GPL to give way to a more proprietary model either, and that is what Microsoft is doing, throwing tacks in the roadway for the GPL. RAND terms limit patent licensing to a degree, but they don't change the obvious incompatibility with the GPL and any patent license fee, and that is the problem.

Here's an opinion on what true interoperability should mean, from "The Roadmap for Open ICT Ecosystems", published by Harvard's Berkman Center for Internet & Society. First, though, they tell us who developed this paper:

This Roadmap represents an unprecedented collaborative effort of senior government officials from thirteen nations, thought leaders from five global organizations, experts from two leading technology companies and academics from one of the world’s most respected universities.

On page 4, it lists some guiding principles of an open IT ecosystem. Here's what it says interoperability means:

Interoperable -- allowing, through open standards, the exchange, reuse, interchangeability and interpretaion of data across diverse architectures.

Even the BSA says the same, in "Technology Standards & Interoperability - Why We Should Care About Them" [PDF], p. 7:

Open standards can be implemented by both proprietary and open source software.

Would you honestly claim that OOXML meets that definition? Neither would I. The GPL is the license on Linux, which is open source software. Therefore, a standard that excludes it is not an open standard, and if a license deliberately excludes the GPL it is discriminatory in effect and intent. If you want true interoperability, you need to implement ODF. Seriously. Any limitations to interoperability are entirely on Microsoft's side of the aisle, and the whole world knows it. So why not let the GPL in? You aren't going to get any money to shake a stick at from your patent licenses via OOXML anyhow. So why not fix the OSP to let the GPL in too?

The Roadmap paper was edited by Jeff Kaplan, Founder & Director, Open ePolicy Group, Berkman Centre for Internet and Society, Harvard University, and here's what he is quoted as saying about RAND:

Despite its appealing rhetoric, RAND is not an objective benchmark. "Reasonable" is in the eye of the beholder; it is an undefined criteria only a lawyer could love. Worse, RAND can be a wolf in sheep's clothing, bringing new forms of lock-in under the guise of "openness."

Standards have degrees of openness, mainly due to restrictions and encumbrances placed upon them by vendors. The fact that a standards organization labels a standard open is not determinative. Its effect in the marketplace is a better guide.

At a minimum, open standards must allow all possible competitors to operate on a basis of equal access to the ability to implement the standard. They should not drive others to follow any specific proprietary path or effectively foreclose any software development model. A standard that in effect blocks open source developers from its implementation is not an open standard.

Any conditions (RAND or otherwise) that have the effect of limiting competition, leaving control in the hands of a single vendor, or hindering interoperability - for example, proprietary extensions of a standard- are incompatible with open standards. Ultimately, open standards must allow for self-directed innovation.

This, obviously, is where ISO fell down on the job.

The Microsoft OSP does discriminate against the GPL and other FOSS licenses, because it does not "permit all possible competitors to operate on a basis of equal access to the ability to implement the standard." Hopefully the EU Commission will focus on this issue, since ISO failed to do so.

And the problem with the OSP isn't just patent license fees. It's the restrictions on sublicensing. That too keeps the GPL from being able to use OOXML. But, you may say, maybe Microsoft just doesn't realize this is a problem. So I thought it was worth pointing out that the OSP's restriction on sublicensing, which directly conflicts with the GPL and most Open Source licenses, is the identical issue that a number of lawyers, including Lawrence Rosen, informed Microsoft was a problem back in 2004 when Microsoft was pushing SenderID under a similarly restrictive license.

Microsoft knows perfectly well that any license, like the OSP, that prevents or restricts sublicensing rights can't be used by for FOSS developers, therefore, because a number of lawyers and organizations clearly informed them of it publicly in 2004, so the limitations on sublicensing in the OSP are not due to mistake or confusion, I'd have to conclude, but to a policy of deliberate exclusion. So any pretense that RAND terms are sufficient to create a fair and nondiscriminatory playing field is a sham, and I would think we would be forgiven for believing it is a deliberately crafted one.

For that reason, my hope is that the EU Commission in its investigation will look beyond just the irregularities, many though they were, and hone in on the real anticompetitive issue surrounding OOXML -- that Microsoft's only real competitors can't use the license for OOXML. And Microsoft knew it when it published it.

So you can hear this from lawyers and not just little ol' me, here's what Rosen informed Microsoft personally back in 2004:

"The open source development and distribution process works as well as it does because everyone treats open source licenses as sublicenseable, and most of them are expressly so. Open source licenses contemplate that anyone who receives the software under license may himself or herself become a contributor or distributor. Software freedom is inherited by downstream sublicensees. Meanwhile, the Microsoft Sender ID patent license continues the convenient fiction that there are 'End Users' (S1.5) who receive limited rights. That is unacceptable in open source licenses. "I have explained to Microsoft that their license is expressly incompatible with the warranty of provenance in the Academic Free License and the Open Software License: 'Licensor warrants that the copyright in and to the Original Work and the patent rights granted herein by Licensor are owned by the Licensor or are sublicensed to You under the terms of this License with the permission of the contributor(s) of those copyrights and patent rights.' (AFL/OSL S7) "The 'nontransferable, non-sublicenseable' language in their reciprocal patent license (S2.3) also imposes an impossible administrative burden on the open source development community and, in essence, creates additional downstream patent licenses that will be incompatible with the AFL/OSL and similar open source licenses, and with the open source development process. "The requirement that Microsoft Sender ID patent licenses be formally executed (e.g., S6.10) is incompatible with the way the open source development and distribution process actually works. Furthermore, the requirement that 'If you would like a license from Microsoft (e.g., rebrand, redistribute), you need to contact Microsoft directly' (S2.2) gives Microsoft information about its competitors' plans that it has no reason to know. No open source license -- and *all* of them allow rebranding and redistribution -- can be conditioned on informing Microsoft of anything at all.

You may be asking what Microsoft's reaction was on learning of this incompatibility, and here's a report from "Sender ID: A Tale of Open Standards and Corporate Greed?" published in CircleID:

After the new Microsoft license was published, it was reviewed by Eben Moglen, the legal counsel of the Free Software Foundation (FSF) and Larry Rosen, the legal counsel of the Open Source Initiative (OSI). They have both stated that this license is not compatible with the General Public License (GPL) and possibly other open source licenses.... Microsoft lawyers have concurred with that analysis in regards to the GPL in their updated FAQ published a few days ago. Aside from this, the very act of Microsoft knowing about possible competitors in the email business, is in itself rather disturbing. And to stir the pot, the viewpoint of Microsoft lawyers on the subject is rather die hard and strange. They have stated that they would rather see Sender-ID die than change the license, according to Eric Allman of Sendmail. Eric commented on this by stating that "it's pretty clear that it's going to take an act of whatever deity Microsoft worships in order to get them to back down on the sublicensing issue."

The Debian project, the Apache Project, and attorney Eben Moglen all publicly mirrored these concerns. Richard Stallman said this about the SenderID license restrictions:

This license is an example of Microsoft's strategy for killing off free software as an alternative to Windows. Microsoft first patents something, then incorporates it into a format or protocol, then tries to make it de rigueur while excluding those it wishes to exclude.

And Microsoft said in a FAQ -- which used to be at http://www.microsoft.com/mscorp/twc/privacy/spam_senderid.mspx but is now completely gone from the Internet (Update: Wayback has it, and here's the July 1, 2004 version), other than some place like on Groklaw which quoted it at the time, which is why you shouldn't rely on any promise from Microsoft that appears only on its own website, by the way -- that they understood that there was a fundamental conflict between the sublicensing restrictions of its license and the GPL:

"Q15: Is Microsoft’s Royalty Free Sender ID Patent License compatible with the GPL?

"A: Unlike other open source software licenses, the GPL includes a provision that appears to prohibit the distribution of code that is subject to patent licenses that are not sub-licensable and/or are limited for a particular purpose like implementing a specification. While almost all open source licenses require that the code be freely modifiable and redistributable with or without modification, only the GPL appears to expressly prohibit distribution of code if those requirements can not be satisfied. Microsoft's Royalty Free Sender ID Patent License Agreement does not prohibit the use of any open source license including the GPL. However, because the Royalty Free Sender ID Patent License Agreement is offered for implementation, distribution and use of the specification, Microsoft believes that the GPL would prohibit the distribution of this patented technology. As discussed in the answer to Question 7, it might be possible to use and distribute Sender ID implementations with Linux and other software released under the GPL.

"Q16: What happens if I combine my Sender ID implementation with GPL code?

" A: Where conditions of the GPL can not be satisfied, the GPL prohibits you from distributing your code under the GPL. If you combine your Sender ID implementation with code that purports to subject your Sender ID implementation to the terms of the GPL, you could be violating this requirement of the GPL. You should seek your own counsel concerning whether or not your implementation would be subjected to the GPL and, if so, whether the GPL would prohibit the distribution of your code. The Free Software Foundation www.fsf.org may also be an appropriate source for your inquiries about the GPL."

So, what has changed? The OSP doesn't require notifying Microsoft of anything, so that is progress, but the sublicensing issue remains. And until that is changed, the anticompetitive nature of any such licensing restriction remains as well, and no RAND terms can mask that simple reality.

And finally, speaking of modernization, I'd say this to Jason directly: Others have already tried to damage Groklaw's reputation to try to keep the public from believing what it reads here. It didn't work. Here's why. The Internet means everyone has unlimited ink nowadays, so to speak. It used to be possible to destroy reputations in a controlled media. But you can't do it now, because the intended victim gets to respond.


  


What is Wrong with RAND? | 371 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: artp on Thursday, April 17 2008 @ 12:04 PM EDT
Summary of problem in title.
Non-anonymous so we don't get multiples, forcing PJ to look in two places.


---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

Off Topic Thread Here
Authored by: artp on Thursday, April 17 2008 @ 12:12 PM EDT

Links appreciated. See the HTML How To link at the top of the page for more info on what HTML works on Geeklog.

Please don't forget to change the Title. Comments titled "Off Topic Thread Here" are very uninformative.

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley sinks ?

[ Reply to This | # ]

News Picks Comments Here
Authored by: artp on Thursday, April 17 2008 @ 12:18 PM EDT
Refer to title of NewsPick so we know what you're talking about
An HTML link in case the article has scrolled off the sidebar would be nice,
especially for those who won't look it up, or are on RSS feed.

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

Ehem
Authored by: Anonymous on Thursday, April 17 2008 @ 12:31 PM EDT
PJ, I think actually the BSA guy pointed out that the problem was GPL, not
RAND.

It is also quite possible that his statement is in part based on lack of
understanding of the GPL.

[ Reply to This | # ]

What is Wrong with RAND?
Authored by: tknarr on Thursday, April 17 2008 @ 12:33 PM EDT

Most of the references cited above are from the open-source community. It might make a stronger case to have references to the problems associated with RAND terms from outside the OSS community. I know the IEEE and the W3C have both discussed issues surrounding RAND license terms in the past. I found this comment from the W3C discussion particularly apropos:
http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Sep/0385. html
And there's a listing by thread:
http://lists.w3.org/Archives/Public/www-patentpolicy-comment/2001Sep/thr ead.html
The fact that this was being discussed back in 2001 indicates it's not something the open-source community is just bringing up now.

[ Reply to This | # ]

Re: What is Wrong with RAND?
Authored by: OrlandoNative on Thursday, April 17 2008 @ 12:36 PM EDT
Hmmm... perhaps a better question is what is wrong with both RAND and FOSS?

PJ, normally I would tend to agree with you about this; but in this case I'm not
sure I can.

On one hand, you say everyone has the 'right' to pick their license of choice
FOR THEIR OWN CODE - a FOSS one, an 'open source' one, or a proprietary one.
Which I agree with. After all, it's the USER's choice as to whether they want
to obtain and use the software; and if they do, they need to abide by the
licensing terms. If they don't like them, then they 'vote with their wallets';
so to speak.

On the other hand, you seem to be saying that; because the licensing the code
owner picked in this case isn't compatible with a particular FOSS license, they
need to change it. That sort of diametrically opposes the stance above.

I agree that I don't particularly like the whole OOXML business. I think it
isn't a good implementation, and the process used to 'bless' it as a standard,
in my humble opionion, was both less than courteous; and, as far as *my* reading
of the ISO rules and regulations go; probably a violation of the same.

However, that doesn't give me the 'right' to tell Microsoft they HAVE to change
their licensing terms.

The only folks who may really have that right are the various governmental and
antitrust bodies.

You seem to forget actual history. The proprietary model has been around a long
time. Most of FOSS is a relative newcomer. The folks who created the FOSS
model THEMSELVES deliberately did so in a way that isolates any code development
done under it from easily interfacing with any code developed under a
proprietary model. In other words, they sowed the wind, and now they don't want
to reap the whirlwind. I thus have a hard time really feeling sorry for them.

One other note. It's pretty obvious Microsoft doesn't really care about
'interoperating' with us. WE'RE the ones who want to interoperate with them.
Thus, the onus is on US to find a way of doing so. It's not on them to make it
any easier for one particular group of folks over any other. And every other
group OTHER THAN FOSS have a way of doing so. We just decided we didn't want to
play by those rules; and, now, like a spoiled child, we think everyone else
should change to 'accommodate' us. That usually doesn't even work in the
elementary school playground; much less in the 'real' business world.

No matter how we feel about proprietary vs non-proprietary software, it's likely
there will be both for decades to come, if not forever. After all, even if one
regards the proprietary model as a 'dinosaur' versus a FOSS 'mammal'; I would
remind you there are still reptiles in the world coexisting quite well today.

[ Reply to This | # ]

Why suprised, PJ...
Authored by: The_Pirate on Thursday, April 17 2008 @ 01:04 PM EDT
...It is not really a mystery why MicroSerfs are rude to you.

In their own minds, they are the cream of the software world: the knights in
white armour.

You hold up a mirror, and show them what they really are.

Of course they get rude. They have no weapon against you. So what else is left
for them?

Please carry on. When they finally have to see themselves the way a larger and
larger part of the world does, then they see they will need to change - for
real. Or to abandon the sinking ship.

[ Reply to This | # ]

What is Wrong with RAND?
Authored by: esni on Thursday, April 17 2008 @ 01:12 PM EDT
What is really needed is a rule that software patents cannot be enforced against
software, which is distributed under licenses allowing for free redistribution

---
Eskild
Denmark


[ Reply to This | # ]

What is Wrong with RAND? and ISO?
Authored by: grouch on Thursday, April 17 2008 @ 02:05 PM EDT
RAND (Reasonable And Non-Discriminatory) terms can exist for standards applying to markets. They are incompatible with standards applying to open communication. A market involves communication among buyers, sellers and suppliers, but that communication does not have to be open. Market communication is a small subset of communication, in general. ISO, apparently, is not set up to distinguish between market communication and open communication.

It is possible to create a standard regarding the manufacture of widgets while including RAND terms in the standard, simply because manufacturing widgets is very unlikely to be a cost-free operation. A manufacturer must consider the costs before engaging in making widgets and RAND terms on some portion of a widget-related standard can be devised which do not significantly alter those costs. The benefits of standardized widgets far outweigh the consequences of RAND terms within the standard.

It is not possible to create a standard regarding open communication while including RAND terms in the standard, simply because any terms imposed render the standard a closed method under control of the vendor imposing the terms. Open communication requires the consensus of all communicators involved. Communication in general does not involve costs and licensing. Any terms injecting those into any given conversation make that communication a subset of a market.

Document exchange is communication. Any document exchange that is restricted by a vendor's RAND terms cannot be considered open communication. The specifications of that vendor's document exchange, including the RAND terms imposed, cannot be considered a standard for open communication; the specifications are "standard" only for communication with that particular vendor. It is that vendor's choice for communicating with that vendor, only.

It is clear that ODF is an open communication standard for document exchange. It is not clear whether MSOOXML is now, or can become, anything other than the specifications for communicating with a single vendor, chosen by that vendor.

ISO may be incapable of distinguishing between open communication and the subset of market communication. Branding as a "standard" a vendor's chosen specifications for communication with that vendor, under that vendor's unclear terms, certainly does not give indication of ISO's ability to recognize the difference between general, open communication and limited market communication methods.

The W3C went through a phase where it seemed to get the idea that the World Wide Web is limited to market communications and should be controlled by marketers' specifications. It required considerable public outcry to remind that body that the Web may contain market communication, but it is not restricted to markets alone. If the ISO cannot recognize the difference between the large body of open, general communication and its subset of market communication, perhaps it is time for a new international standards body which can.

---
-- grouch

"People aren't as dumb as Microsoft needs them to be."
--PJ, May 2007

[ Reply to This | # ]

Let's switch this around a bit...
Authored by: andrewkm on Thursday, April 17 2008 @ 02:24 PM EDT
Let's say another company introduced an ISO approved standard that and had an
similar OSP that was written in such a way that, while not exclusively
prohibiting Microsoft from using it, was crafted such that it was incompatible
with their standard operating licenses.

Would it be acceptable then for that company to say that it's Microsoft's fault
that their chosen licenses weren't compatible with the agreement?

[ Reply to This | # ]

Linux doesn't care about OOXML
Authored by: red floyd on Thursday, April 17 2008 @ 02:29 PM EDT
Would you honestly claim that OOXML meets that definition? Neither would I. The GPL is the license on Linux, which is open source software.

Linux in and of itself doesn't give a darn about OOXML. It's the (L)GPL'ed applications that run on top of Linux (and Windows, for that matter) which care. Apps such as OpenOffice.org and others.

---
I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United States of America.

[ Reply to This | # ]

I can see this subject has pushed a few people's buttons.
Authored by: billyskank on Thursday, April 17 2008 @ 02:32 PM EDT
Here they all come out of the woodwork.

Folks, the reason why so-called RAND terms are in fact discriminatory and
unreasonable, is because that is Microsoft's express intent. It's not just that
that's the way things are done; we're talking specifically about Microsoft here,
and Microsoft's principal opposition does not come from any other commercial
operator. Microsoft saw all them off years ago. The competition now is from free
software. Microsoft's RAND terms are specifically intended to exclude its main
competitor. There is no way that can be called reasonable, and it most certainly
is discriminatory. It's meant to be.

---
It's not the software that's free; it's you.

[ Reply to This | # ]

"GPL is the license on Linux"
Authored by: Anonymous on Thursday, April 17 2008 @ 02:46 PM EDT
I think this is a little off the point. While it is true that the GPL is the license of (most of) Linux, surely the kernel is not involved in the parsing of user documents. Instead, you probably mean that GPL is the commonly used license for applications that are intended to run under Linux. But I don't think it matters. OpenOffice also runs under Windows, Solaris, and a host of other operating systems. Incompatibility with the GPL is an issue not because Linux itself is mostly GPL software, but because many applications which compete with Microsoft's Office suite (KOffice, OpenOffice, StarOffice, ...) are all GPL software.

[ Reply to This | # ]

Still (kinda) barking up the wrong tree...
Authored by: kutulu on Thursday, April 17 2008 @ 02:48 PM EDT

I think it's generally acknowledged, by anyone who isn't outright lying, that RAND terms, as typically found in the standards arena, aren't compatible with OSS licenses such as the GPL. But I have to disagree a bit with the extremity to which Mr. Ravicher has taken the issue; in particular:

because any requirement of the charging of a license fee is - by definition - neither reasonable nor non-discriminatory.

Many people many not like or agree with the idea of charging a license fee for patented technology, but calling it discriminatory and unreasonable as a blanket rule is just absurd. Again, please stop trying to apply the relatively small and isolated case of the GPL's conflict with a certain select group of ISO/IEC JTC1 standards, to the huge body of tens of thousands of standards across dozens of industries that have successfully used RAND as a licensing model for decades.

It is a true, accurate, and reasonable statement to say that Microsoft could have chosen less restrictive terms for it's OOXML license. It's also undoubtedly true that a major motivating factor that prevented them, was the threat that the GPL poses to Microsoft Office, Windows, etc. But it is wholly inaccurate to state that those terms are "discriminatory" when they make no distinction between any class of licensee; nor unreasonable when they don't even require a royalty payment, something that would have been well within their right to require. It's also incorrect to state that *no* open source project could possibly adhere to any RAND-style terms. In fact, Mr. Ravicher's very next sentence says:

As such, standards covered by patents licensed on a RAND basis generally cannot be implemented into free and open source software, unless the RAND license is actually royalty free.

Microsoft's OSP is actually royalty free. It is not sub-licensable, which makes it fundamentally incompatible with the GPL, but that is because the GPL imposes that restriction on itself; Mr. Stallman and the FSF put themselves into this position, on purpose, with full knowledge of what they were doing, from the very beginning. Other, less strict OSS licenses would not run into this problem. The project's eventual customers might or might not, depending on the ultimate legal interpretation of the OSP terms, but by then it would be a completely different issue. The type of conflict that's arising now with OpenOffice vs. the Microsoft OSP is part of the point behind copyleft -- to force people to acknowledge and deal with the practical problems of "IP" law by making software that's simply not compatible with the established industry practice regarding those laws. The problem is just happening too early in the process.

When the GPL becomes such a dominant market force that no standard could possibly hope to be implemented in usable software under GPL-incompatible patent terms, RAND will cease to be applied to such standards. The simple reality is that GPL'd software does not have that power yet, though it appears to be making decent headway in that direction. OpenOffice does not have even a tiny fraction of the market share needed to pull that off. The few OSS projects that do (basically: Linux, Apache, BIND), either aren't under the GPL, or couldn't care less about OOXML (or both.) The people in charge of the standards that do matter to those projects generally don't accept RAND terms, anyway, so it won't be an issue until GPL'd software grabs a major market share in a lot more areas of software development. The software market has simply not matured enough yet to forcibly push such license terms out of use.

The real problems here, and the real places that change needs to be made right now, exist well above Microsoft's head. They are merely following the rules imposed on them by the people in charge, and are following them to the letter, though not spirit, which is exactly as much their right as any other player in the market (so long as they actually do follow those rules). What really needs to change is:

  • ISO - ISO -- or at least the JTC1 -- needs to follow the lead of groups like the W3 and reject the RAND standard as being incompatible with their mandate in the software/technology market.
  • Patents - None of this would be an issue if governments would stop overstepping the rule of law and giving out software patents to begin with. The RAND model works quite well in the realm of mechanical standards; clearly it's software patents, and not the license terms applied to them, that are broken.
--K

[ Reply to This | # ]

Microsoft's Jason Matusow...
Authored by: Anonymous on Thursday, April 17 2008 @ 03:37 PM EDT
PJ; your taking to task Microsoft's Jason Matusow shows how devastating you are
(albeit politely) armed with facts and reason. Remind me not to cross you.

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RFC: Developing a distinction between open and international standards
Authored by: 1N8 M4L1C3 on Thursday, April 17 2008 @ 03:52 PM EDT

Q: With respect to Massachusetts' legislated move to implement "open standards" back in 2003, can we in the Groklaw community formulate a legal distinction between an "open standard" (e.g. ODF) and an "international standards" (e.g. OOXML)?

Just my two cents worth here, but taking a proactive approach to this question just might take the wind out of OOXML's sails... ...notably if other jurisdictions follow the Massachusetts lead.

Comments?

---
On the 7th day, Linus saw that which he created and it was good... ...on the 8th day SCO litigated.

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Submarine patentes and Rambus
Authored by: Anonymous on Thursday, April 17 2008 @ 04:01 PM EDT
Some time ago, Rambus came up with some kind of memory technology and were on an
IEEE committee to get a standard going. They dropped out, but part of the
committee process required disclosure of any patents (pending or otherwise).

Instead they waited until the standard was released and started the threats.
The courts knocked them down.

And they would even if they were "RAND" licenses, which I think some
were. Even if everyone only owed a fraction of a penny, the process is the
problem.

Part of the goal is to know there are no encumbrances.

Not to hope that the people who threaten you will be nice.

Let MS release a version of OOXML which is complete and under the GPL (thus
giving up any patent rights) and I'll believe them.

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  • Can't be done - Authored by: Anonymous on Thursday, April 17 2008 @ 08:49 PM EDT
What is Wrong with RAND?
Authored by: lukep on Thursday, April 17 2008 @ 04:25 PM EDT
the point most seem to miss is that RAND is perfectly fine as long as you deal
with physical goods that will be sold. And ISO bread and butter is defining
standards on component parts that will be assembled by
machine/car/plane/whatever makers. I think perhaps half or even 2/3 of the
existing standards are about components, from bolts and nuts to sensors
or electric motors.

In the component market, there is 2 very different classes, the standardized
stuff and specialities. Typically standardized ones are sold in numbers at
least 10x or more than specialities, because of the lock-in of the latter.

So a component maker who get an interesting patent, will try to get a
standard from it, just to maximize the use and so its sales. RAND licenses
insure that if he takes this road, competitors will be able to get in too, at
the price of paying a small royalty. Everybody wins this way. If he takes
the specialities way, the sales will be much lower, but it can make sense
in some cases.

But here, once again, M$ muddied the water. First they dont describe exactly
what are the patents (which is required by ISO, afaik).
Secondly, RAND licenses for describing a format document just not make
sense.

Note, btw, that if software patents were not honored in the USA, this
situation could not have arisen.

ISO was not prepared to deal with such a cheater, and certainly take a part of
responsability, but the crooks in Redmond show how low they can go.





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What is Wrong with RAND?
Authored by: PolR on Thursday, April 17 2008 @ 05:21 PM EDT
I see a lot of discussion on whether excluding the GPL with RAND is excluding
FOSS. Some argues that as long as other licenses are OK, FOSS is not excluded.

IMHO this debate eschew the most important point. If you add terms and
conditions to a perfectly valid FOSS license that exclude sublicensing, then it
is no longer FOSS. This is perfectly clear from the OSI open source definition
*and* from the GNU four freedoms philosophy.

The reason is that FOSS is a development model, not a legal framework. This
model requires unrestricted sublicensing of copying, modifying and distribution
rights to the source code. Any term and condition restricting these rights
destroy the developers' ability to work in this model.

The GPL is in the particular situation that it includes language to prevent the
addition of damaging restrictions, including ones related to patents. The GPL is
designed to ensure the FOSS development model is always possible. Therefore the
incompatibility with RAND reaches to the legal realm.

It does not imply it is OK to add restrictions to other licenses. Legally you
can, but the result is you have to use a development model other than FOSS.

Therefore, GPL or not, RAND in general and the OSP in particular is excluding
FOSS.

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Just the GPL?
Authored by: Anonymous on Thursday, April 17 2008 @ 05:59 PM EDT
What about BSD. After all, the BSD says that you can do ANYTHING AT ALL with the
code. Which ought* to include reusing the patented algorithm wherever you want.

So it isn't BSD compatible, is it.

*of course, the BSD tries to forget about patents and doesn't mention it, so
even if MS put their patented tech in a BSD licensed code, it couldn't be used
by anyone without a separate patent license. Which was why the GPL (even in v2,
though v3 adds in some words to close loopholes about who is considered to have
donated code under the GPL license) isn't liked: if you write your code in GPL
then your patent can be reused in ANY GPL code. Of cource it can't be BSD'd
without paying for a patent license to do this in order to make the BSD code
distributable).

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Jason Matusow's blog and his accusations.
Authored by: Anonymous on Thursday, April 17 2008 @ 06:57 PM EDT

Has anyone got any specifics about what Jason Matusow is talking about in his rant about Linux shipping with conflicting licenses? I wasn't aware of any of problems of this nature.

From his blog (linked in the article):

Before you get your hair in a knot over this, consider for a moment that all Linux distributions come with code licensed under reciprocal licenses that conflict and (in theory) should block the distribution of the software. Oops, no one seems to care about that snag. Okay, Linux also ships with code that implements standards specifications covered by RAND terms from many parts of the industry that should block the distribution of the software. Oops, no one seems to care about that snag either. Hmmm - I'm wondering if those complaining about the OSP understand the nature of IP terms in standards to begin with, since they don't seem to mind these other, potentially more-serious issues.

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Software before RAND, software after RAND
Authored by: akStan on Thursday, April 17 2008 @ 07:26 PM EDT
- - The opinion of one Engineer (PE)

Initially, software was ad-hoc (for just for one machine).

When software started to be put in the PUBLIC DOMAIN, it was often intended as
seeding an effort, openly challenging others to take their artwork up a level.
Software blossomed.

Proprietary software came. People were encouraged to believe that merchants
wrote their own code, but there was always the temptation to rip off public
domain, hide the work of others, and chain everything down.
Feudalism re-asserted itself.

Some who understood the legalities wrote licenses to protect the intent of their
open workmanship: FOSS.

"RAND" was a sword sharpened to defend proprietary efforts.
Today it is used to cut down FOSS.

"RAND" has no place in universal communications standards.
If ISO doesn't understand and implement that, then ISO has abandoned the pretext
of universality.
ISO becomes the handmaid to a monopolist business class.

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What is Wrong with Standards
Authored by: Sparhawk on Thursday, April 17 2008 @ 07:54 PM EDT
We are currently having problems with Australian Standards in our work place. We
had a government safety audit, which pointed out that the standard said that we
need load rating information on all warehouse racking. The inspector said this
is an easy thing to get completed.

After investigation, and talking with suppliers/contractors, it comes out that
the standard says that only the manufacturer of the racking can supply the load
plate (it must have their name on it). In order to do that they must do an audit
of our racking. I guess everyone can see the $ signs ticking over already.

The supplier, has taken months to fix, when we were given weeks to do, and as
such we failed our follow up audit (through no fault of our own).

Just thought I'd share another example of proprietary lock in with standards.

---
If Bill Gates had a cent for every time Windows crashed... Oh wait, he does.

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Is the problem bigger than RAND?
Authored by: dio gratia on Thursday, April 17 2008 @ 08:03 PM EDT
If one were to read their statement There Are No IPR Issues With Open XML FACT SHEET (GOVT 2-08).pdf (also available through MS's open standards web pages), you'd find that they haven't enumerated the 'essential patents' required to implement (the now) OXML.
  • Any Required Microsoft Patent Rights Are Available on a Royalty-Free, Perpetual Basis to All Implementers, and Both ISO/IEC and Ecma Have Publicly Declared that No IPR Issues Exist.
    o Microsoft made a patent declaration to Ecma and agreed to make any of its patents covering Open XML available consistent with Ecma‟s “Code of Conduct for Patent Matters.” (See http://www.ecma-international.org/news/TC45_current_work/Ecma%20responses.pdf (Sec. 2.2) and http://www.ecma-international.org/memento/codeofconduct.htm.)

    o Microsoft also submitted to ISO/IEC a “Patent Statement and Licensing Declaration Form.” The form provides three checkboxes: (a) willing to license necessary patent claims on RAND-Z (royalty-free) terms, (b) willing to license necessary claims on RAND (royalty-bearing) terms, and (c) unwilling to license necessary claims under (a) or (b). (See http://isotc.iso.org/livelink/livelink/fetch/2000/2122/3770791/ITU_ISO_IEC_Paten t_Statement_and_Licensing_Declaration_Form.pdf) Microsoft checked box (a) committing to RAND-Z terms. That means that if someone asks for a RAND-Z license to implement Open XML, we must provide such a license.

    o Microsoft also attached to its ISO/IEC patent declaration a commitment that implementers of Open XML would have the benefit of our “Open Specification Promise” (“OSP” -- available in Appendix A and at http://www.microsoft.com/interop/osp/default.mspx) and our “Covenant Not to Sue” (“CNS” -- available in Appendix B and at http://office.microsoft.com/en-us/products/HA102134631033.aspx) as an alternative, if they prefer.

  • So far, all they've done to date is check a box on a form. Considering that when the Samba development team eventually gained access to the list of 'essential patents' for NTFS, they were able to work around all of them, one could reasonably expect the same being the case of OXML. After all, innovation is the engine that drives competition. A fast track standard is published in it's original form as submitted. When ISO reissues IS 29500 in the ISO format for maintenance purposes the introduction will list clauses with patent claims, a requirement of the ISO Standard format. ITU/IEC/ISO policies as evinced on their Patent Statment and Licensing Declaration form (PDF, 96KB) require enumeration for non-RAND licensed patents, but enumeration is not required to be listed in the standard for RAND-Z.

    We may see a delay of the intial release of the IS 29500 standard for some number of months, and the first maintenance release might be a year or two later (if at all). This would finally allow an open source (as in GPL) developer to see the first clue as to patent claims on OXML, enabling a significant effort to identify actual patents for claim application against the standard followed by an effort to engineer work a rounds, because the Open Source Promise doesn't provide sub-licensing on RAND-Z for patents. There is a reasonable claim that in addition to being discriminatory against the GPL, the ITU/IEC/ISO method of making patent declarations allows anticompetitive behavior, promulgating Fear, Uncertaintly and Doubt (FUD) as to whether or not the patents are actually required. After all, the SAMBA development shows us that patents can cover 'a method' and not 'the only method'.

    The way a standards body might level the playing field for competition might be to require patent enumeration in all cases, and to publicly release the results. Likewise, in this case Microsoft could publicly release the list of purportedly 13 'essential patents'. It is not uncommon for standards processes to enable anticompetitive behavior, non-disclosure disclosure seems right up their with Reasonable and Non Discriminatory, perhaps a further subject for EU review.

    Makes you wonder what else is lurking in the woodwork.

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    What is Wrong with RAND?
    Authored by: tanner andrews on Thursday, April 17 2008 @ 09:00 PM EDT

    Nothing wrong with non-discriminatory, for what it is. I like it when considering the realm of employment opportunity. There is likewise nothing wrong with cream cheese, for what it is, though I would not find it useful applied to a car tire.

    That's really the problem with non-discriminatory. If my license offer to all comers is that you may have it if you sit on your head and sing Rossini's Queen of England Overture, it's not discriminatory. Everyone is treated the same. No discrimination, which is to say, no disparate treatment.

    It is, however, as useless as any three school board members. Even if I have solved the halting problem, you are not going to license my material.

    Thus it is with the MS patent pledges. They offer all comers the same, useless terms. No reasonable person will accept that offer, because what he receives is a useless license. He cannot use the license to do anything useful because he cannot share his work.

    Thus, my solution to the halting problem, and the MS patent pledges, are useless. In other words, my halting license and the MS patent licenses (being useless to reasonable people) are inherently unreasonable.

    It follows that both of these license offers are not RAND because they are not reasonable.

    ---
    I am not your lawyer; please ignore above message.

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    It's very simple
    Authored by: Anonymous on Thursday, April 17 2008 @ 09:21 PM EDT
    The OSP was purposely written to exclude, therefore it's
    "discriminatory". Is that so difficult to understand.

    They could perfectly well have written it to allow and instead choose not do
    it.

    They could easily have corrected it but instead choose not to.

    I also ask Mr. Troll above to cite which open source licenses are compatible
    with the OSP and he also choose not to.

    Isn't sublicensing common to all open source licenses?

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    Stop being so intentionally naive.
    Authored by: Anonymous on Thursday, April 17 2008 @ 11:09 PM EDT
    I mean really. RAND never was meant to cater to (L)GPL software. i.e. free
    software. I wish you would also stop using the term 'open source' because it is
    meaningless. Also as others have pointed out, Linux is just the kernel and has
    nothing to do with OOXML.

    Trying to somehow bend RAND to mean what you want it to mean is pointless.

    I'm not saying there isn't anything wrong with RAND. There is. It is
    inappropriate in this day and age to use RAND as licensing terms for IP when the
    only competitor to the encumbant monopoly is incompatible with RAND.

    But it is what it is - and it is what ISO requires.

    It just means ISO standards have less meaning for the world as it stands now.
    And it is up to ISO to fix it, or become irrelevant.

    Michael Zucchi

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    ISO standard for RAND
    Authored by: nola on Thursday, April 17 2008 @ 11:21 PM EDT
    If RAND is subject to a lot of subjective interpretation by various lawyers,
    then
    it's time for a standard to set the minimum acceptable requirements. ISO is not

    just Microsoft's plaything.

    "Use the Force, Luke"

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    Why Microsoft folks can't be polite...
    Authored by: Anonymous on Thursday, April 17 2008 @ 11:54 PM EDT
    Pride goes before the fall

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    Two trolls
    Authored by: Anonymous on Friday, April 18 2008 @ 12:57 AM EDT
    Has anyone noticed that for the last couple of weeks there are two trolls here
    that, unusually, have registered.
    You'll find them where there is a loooong and confusing comment, partly sounding
    serious but in the end just FUD. They've been remarkably active, almost like
    they've been assigned by someone to spend time here.
    Now, there are plenty of good people to counter their FUD but it's still kind of
    annoying.
    So, instead of talking to the MS minions I'll just address Steve directly.
    Steve, pull back these little trolls and go back to chair throwing, it's better
    entertainment.

    /Happy Ubuntu User

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    How much is the patent license fee, anyway?
    Authored by: Anonymous on Friday, April 18 2008 @ 02:11 AM EDT

    Just out of curiosity, does anyone have a cite or link or reference to what the royalty fee is? How much money do I have to cough up if I wanted for some inexplicable reason to implement OOXML?

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    Prime example of patents slowing inovation
    Authored by: Anonymous on Friday, April 18 2008 @ 03:35 AM EDT
    Thanks for the wonderful response PJ. I read the original blog and your
    response.

    The conclusion is obvious: Patents SLOW down inovation.

    It is right there said by MS itself (or rather the blogger). The main theme is
    following:

    "It was like that decades before OSS/FOSS, so why should it change just
    because OSS/FOSS exists now?"

    That is the main argument and the main proof of the above. OSS/FOSS is progress,
    it is inovation (good or bad, that is not for me to judge) and you have to
    include it in your world view now, make allowances for it (you don't have to
    embrace it).

    But the OSP, SenderID license and other MS "open" licenses do exclude
    OSS/FOSS in their terms. So they do not want this kind of progress and
    inovation.

    I hope I did put the main idea properly into words (I am not very good at
    that:-))

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    What is Wrong with RAND?
    Authored by: Anonymous on Sunday, April 20 2008 @ 02:08 PM EDT
    Here is my own personal opinion about the discussion. Jason's blog seems busy so
    I'm cross posting it here.

    For me the primary intend of the GPL and copyleft is to give the end user
    freedom and a defined legal field to exercise this freedom. As crappy and
    limiting as his/her choice in software might by by taking out all normal
    business practices, but this fundamental right of sharing amongst users is
    defined in the GPL. It might not have been meant as a business model in the
    first place but as you said yourself, it was only just recently that this model
    also took hold in the cooperate world. On something so general as an editable
    document however, and you got to be fair - Microsoft Office and the file formats
    it came with was on a majority of windows computers which where sold and
    advertised to EVERYONE. If the discussion comes to the format of the next
    generation of Office products, a standard which conflicts with the GPL and if it
    is only idiologically, can only be suboptimal to the end user. In my opinion,
    the ongoing discussion about OOXML and the next generation of a defined office
    format is not only to be discussed in the closed sphere of businesses since the
    subject is not a standard of a separate and closed market place, but should also
    include the subset of their users since it is about open communication via
    electronic documents in general. As such I see the GPL as an equal partner
    amongst businesses and the idea should be subject to protection. Please
    remember, this is not about competition amongst businesses, this is about
    freedom of users. These users are also your customers.

    In my own personal opinion I reject the idea of branding a standard I'm very
    likely to be forced to use by governments and businesses by pushing it through
    the various official organs necessary and intentionally excluding the user from
    having their say. A standard with 6000+ pages including legal controversies,
    being pushed through on the fast track remind me a little to much of how little
    I am and how I am only the end product to a company. I would have expected from
    Microsoft as the leading contributor of Software products to the world, to seek
    open communication with the existing efforts of defining such a standard and
    finding consensus by including or joining them.

    The recent happenings in the cooperate world from which I might not understand
    all of it but which sound alarming enough do not comfort me as a user that with
    the next round, this time I will have a real choice. We have a saying in the
    country I'm from, burned child fears the fire. I would find it only fair from
    Microsoft to not only redefine their proposal of an open standard but to put
    aside business practices for a moment and rethink the image they want to present
    as a company to their end users.

    In an additional note, in an ongoing process of globalization, an international
    standard defined by a single company who seeks the path of least resistance to
    get this standard globally recognized, a standard body who allows and apparently
    encourages such behavior should be subject to investigation by whatever
    authority is in charge.

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