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Round 2 in the EU Patent Fight, a Pure Software Act Proposal, and CoLinux
Saturday, April 10 2004 @ 06:12 PM EDT

Did you imagine that the fight over patents in Europe had been settled when Parliament voted those amendments?

I have just heard from James Heald, of FFII the Foundation for a Free Information Infrastructure, who tells me it's back to square one. FFII is a non-profit association "dedicated to the spread of data processing literacy" and which "supports the development of public information goods based on copyright, free competition, and open standards".

Nokia in particular didn't like the amendments and neither did the Irish Presidency of the European Union, it seems, because its draft text now completely ignores all the amendments:

"After months of closed back room discussions, the Irish Presidency of the European Union has referred the proposed EU Directive on software patents back up to 'political' level. The Irish want members of the Council of Ministers of the member states to agree to drop all objections by May. The Presidency proposed draft text rejects all clarifying amendments made by the European Parliament in September 2003 and instead pushes for direct patentability of computer programs, data structures and process descriptions.

"A last ditch attempt by the Luxembourg delegation to ensure interoperability with patented standards was rejected. The Patent Department at Nokia is collecting signatures from top company executives for a 'Call for Action' in favour of the Presidency text. In the other corner, supporters of the European Parliament's position have arranged conferences to explain the dangers of software patents, and are mobilising for a 'net strike' and a rally in Brussels on April 14th under the slogan 'No Software Patents -- Power to the Parliament. They are hoping for a repeat of the impact of similar actions in the run-up to September 2003, which helped convince the European Parliament to vote clearly against software patents."

So round two begins.

I find it comical that a protest sign says, Power to the Parliament. FFII's press release tells the full story, which is reproduced on LWN. While you are there, you might like to read an article I wrote on Utah's new antispyware law.

Simson Garfinkle is proposing federal legislation on spyware. He would like labeling, a kind of Pure Software Act:

"But there is another way to fight spyware—an approach that would work because the authors are legitimate organizations. Congress could pass legislation requiring that software distributed in the United States come with product labels that would reveal to consumers specific functions built into the programs. Such legislation would likely have the same kind of pro-consumer results as the Pure Food and Drug Act of 1906—the legislation that is responsible for today’s labels on food and drugs. . . .

"Uniform standards for labeling software wouldn’t replace the need for license agreements, but they would make it harder for companies to bury a program’s functions. Such legislation—call it the Pure Software Act of 2006—would call for the Federal Trade Commission to establish standards for the mandatory labeling of all computer programs that are distributed within the United States. A labeling requirement would force makers of spyware to reveal their program’s hidden features."

He suggests icons that tell you that a program runs at boot, calls home, alters your operating system, displays popups, lets other programs take over your computer, keeps track of what you are doing, self-updates, or can't be uninstalled. I believe that would effectively put Microsoft and RealPlayer out of business. I guess we can expect, therefore, that it is unlikely to become law. Judging from the EU story, maybe it's better if legislators stay out of software, anyway.

Speaking of monopolies, a computer science student in Israel is reported to have developed something called CoLinux, together with some Japanese programmers, which they say is "the first working free and open source method for optimally running Linux on Microsoft Windows natively":

"Shahar Shemesh, a member of the Israeli open source forum, explains said [sic] the advantage of the application for large organizations is that it allows them to make large savings by running systems on the same machine, which until now required separate computers.

"Aloni's project, called CoLinux, was released on the Web a month ago, but is only at a trial stage. Pini Cohen a senior informations systems analyst at computer research company Meta Group Israel has called the development 'an important stage in breaking Microsoft's monopoly.'"

CoLinux stands for Cooperative Linux, and here's how it is described on the CoLinux website:

"Cooperative Linux is the first working free and open source method for optimally running Linux on Microsoft Windows natively. More generally, Cooperative Linux (short-named coLinux) is a port of the Linux kernel that allows it to run cooperatively alongside another operating system on a single machine. For instance, it allows one to freely run Linux on Windows 2000/XP, without using a commercial PC virtualization software such as VMware, in a way which is much more optimal than using any general purpose PC virtualization software. In its current condition, it allows us to run the KNOPPIX Japanese Edition on Windows (see Screenshots)."

Here is the CoLinux Wiki, where you can find the FAQ. No comment yet from Microsoft. O'Reilly has more.

Heald also explains something about the Microsoft patent application on Word files in XML. It doesn't relate directly to Open Office and current Word files, he says, because Open Office uses a bundle of XML files, whereas MS's patent is for storing the full information content of the file in a single XML doc. However, if the patent goes through, it may make it impossible for Open Office to interoperate with *future* versions of MSWord. He compares it to something from the European commission FAQ on their MS antitrust ruling, which (if software patents are confirmed in Europe) could effectively prevent Samba and any other free software from inter-operating:

Q.: Does Microsoft have intellectual property over the interface information to be disclosed?

A.: The Commission is not seeking disclosure of Microsoft's source code. The Commission does not exclude that the information that the Decision obliges Microsoft to disclose might be protected by intellectual property rights in the EU. To the extent that it is, the Decision finds that in line with the relevant jurisprudence, the exceptional circumstances of the case (Microsoft's overwhelming dominance, indispensability of the interface information, risk of elimination of competition in the market) would mandate such disclosure.

Q.: How will the Commission ensure that Microsoft does not exclude competitors from the market by setting very high royalties for the information in question?

A.: To the extent that any of the information in question is protected by intellectual property rights in the EEA, Microsoft is entitled to reasonable remuneration. It will be the role of the Monitoring Trustee, under the authority of the Commission, to ensure that Microsoft does not charge too high a price for the information.

Groklaw published an article back in November, "Microsoft's Customer Lock-in and Competition Lock-out" by Paul Rouleau, and it seems worth it to republish one pertinent section in the current context.

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

Microsoft's Customer Lock-in and Competition Lock-out
~ by Paul Rouleau

. . . . A recurring theme in customer lock-in attempts is to place obstacles to developers of interoperability products, or at least to put some form of burden that increase the costs and risks of implementing interoperability solutions. If there is no reasonable mean to implement interoperability, then Microsoft customers have no practical migration path to alternative solutions, even if such alternatives exist in the marketplace.

Proprietary and confidential file formats and APIs are examples of obstacles impairing interoperability. Developers need to perform reverse engineering to overcome these obstacles. Anything that delays or impose a burden on developers performing reverse engineering contributes to increased Microsoft customer lock-in. One must pay particular attention to various forms of burdens specifically applicable to FOSS development. This type of burden escapes the attention of regulators and business analysts because practices that are intolerable to FOSS are often acceptable in the commercial world. However the current weakness of Microsoft customer lock-in is primarily attributable to the vitality of the FOSS alternatives. This kind of selective burden impacts Microsoft's primary competition while retaining a varnish of legitimacy.

Without discussing the legalities, the question here is simply whether Microsoft customers have or do not have a usable migration path and if developers can or cannot develop interoperable software.

File format lock-in : Office 2003

After a period of relative stability in the Office file formats, Microsoft again began playing the incompatible file format game. Although the file formats were based on the XML standard, they used an undisclosed and proprietary schema (as opposed to, for example, the OpenOffice.org format which is a published schema.) Files using this format could only be manipulated using the Microsoft Office API. The EULA for this API contains interesting clauses:

you must not permit further redistribution of the Redistributable Components by your end-user customers; ...

4. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY. You may not reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

The restriction on redistribution effectively prevents distributing any software that uses this API under any form of FOSS license. The limitations on reverse engineering need not be discussed again. Together, the two clauses help enforce a file format lock-in.

Its appears that Microsoft have now changed their mind. They seem to no longer want to keep the schema secret. On Monday November 17th 2003, Microsoft has allowed the publication of their schema, thereby effectively opening the Office file formats. However, this publication has strings attached. For instance, the schema may be patented:

'Microsoft may have patents and/or patent applications that are necessary for you to license in order to make, sell, or distribute software programs that read or write files that comply with the Microsoft specifications for the Office Schemas.'

Does Microsoft own patents on the schematas or not? Are schematas patentable? A schema is a data format, not an algorithm or process, so the question deserves to be raised. There is more. If a developer makes use of the schema, Microsoft requires the resulting software to be licensed from them:

'If you distribute, license or sell a Licensed Implementation, this license is conditioned upon you requiring that the following notice be prominently displayed in all copies and derivative works of your source code and in copies of the documentation and licenses associated with your Licensed Implementation:

'This product may incorporate intellectual property owned by Microsoft Corporation. The terms and conditions upon which Microsoft is licensing such intellectual property may be found at http://msdn.microsoft.com/library/en-us/odcXMLRef/html/odcXMLRefLegalNotice.asp?frame=true.

'By including the above notice in a Licensed Implementation, you will be deemed to have accepted the terms and conditions of this license. You are not licensed to distribute a Licensed Implementation under license terms and conditions that prohibit the terms and conditions of this license. You are not licensed to sublicense or transfer your rights.'

"The BSD-style advertising clause is well-known to be incompatible with the GPL but that is the least of the problems.

  • The developer is required to acknowledge some undisclosed 'intellectual property' that may or may not be present in his own code.

  • The developer is not licensed to transfer or sublicense his rights. The recipient of the software must obtain a license directly from Microsoft under terms and conditions that may be found though an hyperlink. Microsoft has complete control on the page referred to by the link. Might they change it? Can they stop offering the license, thereby halting the licensees from further distributing their products? What guarantees are there?
  • Note also that the developer is not licensed to distribute software that prohibits Microsoft's own terms and conditions. Would Microsoft choose license terms and conditions to invalidate any distribution license they dislike? Combined with the hyperlink, does that mean Microsoft has some kind of after-the-fact veto power on the developer's preferred license?
  • Now that the specifications are public, how could developers code applications without requiring Microsoft's license? Does this publication impose on developers some burden to prove clean-room reverse engineering? Is Microsoft positioning itself for future litigation?

A patent available under a royalty-free license is better than a patent that requires a royalty. But there is more than a patent involved in this license. Under the guise of promoting openness, they seem to have created a legal quagmire that may put in jeopardy any software using the schema. The file format may no longer be secret, but using it will scare your lawyer. These terms are most damaging to FOSS developers. I don't see a way to write open source code under these conditions.The Open Source Definition clause 3 states:

'The license must allow modifications and derived works, and must allow them to be distributed under the same terms as the license of the original software.'

How could that be, if Microsoft can change the terms and conditions at will? Read also Clause 7:

'The rights attached to the program must apply to all to whom the program is redistributed without the need for execution of an additional license by those parties.'

This is clear. Microsoft is attempting to force the execution of an additional license on top of the base, open source license. A true open source license can't allow that. For those of you that prefer the concept of Free Software, the FSF puts it this way:

'In order for these freedoms to be real, they must be irrevocable as long as you do nothing wrong; if the developer of the software has the power to revoke the license, without your doing anything to give cause, the software is not free.'


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