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MA Says MS Agrees to Change XML License To Meet New Open Format Standard
Friday, January 14 2005 @ 06:07 PM EST

Massachusetts is opening the door further. A year ago, as you recall, the state announced agencies were required to give equal consideration to Open Source software. Today, there was a meeting of the Massachusetts Software Council where Eric Kriss, secretary of administration and finance, said that all agencies will be required to store public documents in nonproprietary formats such as HTML or PDF.

Acceptable formats, according to the state's Information Technology Division, are now Rich Text Format v. 1.7 (.rtf); Plain Text Format (.txt); Hypertext Document Format (.htm); Portable Document Format (.pdf) - Reference version 1.5; Extensible Markup Language (XML) v. 1.0 (Third Edition) or v 1.1 "when necessary".

What about Microsoft's notorious patent clause in their Office 2003 XML Reference Schema Patent License? 1

It seems that Massachusetts has been having discussions with Microsoft over changing those terms so MS can qualify, and miracle of miracles, Dan Bricklin's eye-popping notes of the speech indicate that Microsoft told the state of Massachusetts that it is willing to bend to be included.

Bricklin writes: "And, as a surprise, they seem to be coming to an agreement with Microsoft where Microsoft is going to reduce their restrictions on some Microsoft Office file formats to fit under the definitions." Massachusetts now defines "Open Formats" to include formats from a private entity, not a formal standards body, if they meet the state's standard.

Of course, we need to see what Microsoft's new language actually says. For that matter, we have to wait and see if they actually follow through. But the fact that the state has apparently noticed the Microsoft patent license problem is very heartening.

Here's a bit of what Mr. Kriss said, according to Bricklin's notes, which he points out are not, of course, official:

...We're ready to extend the concept of Open Standards to the next step or stage. And I'm making an informal announcement to you. We're looking as always to comments -- feedback -- because it's been terrific. One of the best assets that we have is all of you and the tremendous amount of brainpower that resides in this room and in the greater community, the software industry in Massachusetts. But we are planning to extend the definition of Open Standards to what we are now going to be calling "Open Formats"...

...In our definition, "Open Formats" are specifications for data file formats that are based on an underlying Open Standard developed by an open community and affirmed by a standards body or de facto format standards controlled by other entities that are fully documented and available for public use under perpetual, royalty free, and nondiscriminatory terms.

... An example of an Open Format that we have already characterized is TXT text files and PDF document formats.

...It should be reasonably obvious for a lay person who looks at the concept of Public Documents that we've got to keep them independent and free forever because it is an overriding imperative of the American democratic system. That we cannot have our public documents locked up in some kind of proprietary format or locked up in a format that you need to get a proprietary system to use some time in the future. So, one of the things that we're incredibly focused on is insuring that the public records remain independent of underlying systems and applications insuring their accessibility over very long periods of time. In the IT business a long period of time is about 18 months, in government it's about 300 years, so we have slightly different perspective.

Open Formats insure also that there are minimal restrictions imposed on the use of applications needed to access those records and files. And finally, Open Formats support the integrity of public records when we're going to need to do a file conversion as required probably in the course of normal technological evolution. So that if we have something in the format of 2005 and it's going to need to be converted in 2038 into something that we've never thought of yet we need to be able to do that without losing the integrity in the ... of information...

...The Commonwealth will only certify an Open Format designation when minimal legal restrictions exist on the reading and dissemination of government records...

...What I want to discuss informally today is we've been in a conversation with Microsoft for several months with regard to the patent and the license surrounding their use of XML to specify specifically DOC files in Microsoft Office 2003. They have made representations to us recently they are planning to modify that license, and we believe if they do so in the way that we understand that they have spoken about, we will leave it obviously to them to describe exactly what they are going to do, that it is our expectation that when we do issue the next iteration of the standard that in fact the Microsoft what are proprietary formats will be deemed to be Open Formats because they will no longer have the restrictions on their use that they currently have, that would include potentially, and, again, we need to wait for the final designation of this from Microsoft, it would include Word Processing ML, which is the wrapper around DOC files, Spreadsheet ML, which is the wrapper around XLS files and the form template schemas. Obviously, we are going to be talking to other companies and other entities that may have restrictions around the use of those formats and we hope to either get them removed or have further conversations so that as we all move forward together in this wonderful evolution of technology we are going to insure that at least in the government we will be able to reference something a hundred years from now and it won't get lost forever.

You can read about the Open Standards/Open Source policy here. And their Enterprise Technical Reference Model is here and it reads in part:

Implementation of the ETRM will result in a Service Oriented Architecture for the Commonwealth that uses open standards solutions where appropriate to construct and deliver online government services. Agencies are expected to migrate towards compliance with the ETRM as they consider new information technology investments or make major enhancements/replacement to existing systems.


The Commonwealth is transitioning from siloed, application centric and agency centric information technology investments to an enterprise approach where applications are designed to be flexible, to take advantage of shared and reusable components, to facilitate the sharing and reuse of data where appropriate and to make the best use of the technology infrastructure that is available. The technology specifications and standards detailed in this document are required to achieve the desired target state of a Service Oriented Architecture. These specifications and standards are required for all new IT investments.Given the current state, there will be a period of transition required to fully implement the target architecture.

You can also read an article by the state's General Counsel, Linda M. Hamel, on successfully managing the legal risks of using open source software here. The paper points out that proprietary software has legal risks too and that the benefits of using open source software outweigh the risks. Nevertheless, there are certain steps she suggests to handle those risks. This is an area that is fast-moving, and I think an update may be needed. This is a topic that came up at the GPL seminar I attended, and some of their recommendations were quite similar to this paper, such as having a GPL-aware managment group to make sure the license is complied with. Here are the nine steps governments are encouraged to take to minimize risk:

  1. Adopting and enforcing an open source risk management policy
  2. Identifying and tracking all open source code that is used by the State
  3. Having legal counsel review all licenses for new and existing open source software and explain them to their agency clients
  4. When developing a large system, have legal counsel review all licenses for open source software that agencies propose to use and counsel the agency as to the impact of the lack of warranty and indemnification provisions
  5. Requiring legal review prior to distributing code outside of the state enterprise
  6. Keeping track of modifications
  7. Balancing the Need for Access to the Code with the Need to Limit Source Code Access to Those Who Need It to Perform Their Jobs
  8. Considering market based models for shifting risk and
  9. Documenting all software projects

I suggest updating number 4, since there is surely no lack of indemnification for Open Source software now. I gather number 7 is to implement number 6.

Mr. Kriss specifically asked for feedback. I am told he was asked at the meeting if he'd consider reading feedback from Groklaw, and he said sure. So, welcome to Groklaw, Massachusetts, and Mr. Kriss. We are very happy to have you here. We are grateful for your interest in creating a level playing field for all. I'll let the Groklaw community provide feedback in their comments now, since many, if not most of them, like yourself, I hear, are programmers who are very knowledgeable about the GPL. Some of them, in fact, reside in your state.

1 Microsoft's Office 2003 XML Reference Schema Patent License currently includes this Patent clause:

Patent License

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.

Except as provided below, Microsoft hereby grants you a royalty-free license under Microsoft's Necessary Claims to make, use, sell, offer to sell, import, and otherwise distribute Licensed Implementations solely for the purpose of reading and writing files that comply with the Microsoft specifications for the Office Schemas. A "Licensed Implementation" means only those specific portions of a software product that read and writes files that are fully compliant with the specifications for the Office Schemas. The term "Necessary Claims" means claims of a patent or patent application that are owned or controlled by Microsoft and that are necessarily infringed by reading or writing files pursuant to the requirements of the Office Schemas. A claim is necessarily infringed only when it is not possible to avoid infringing when conforming to the specification because there is no technically reasonable non-infringing alternative for reading or writing such files. Notwithstanding the foregoing, "Necessary Claims" do not include any claims: (i) that would require a payment of royalties by Microsoft to unaffiliated third parties; (ii) covering any enabling technologies that may be necessary to make or use any product incorporating a Licensed Implementation (e.g., word processing, spreadsheet or presentation features or functionality, programming interfaces, protocols), or (iii) covering the reading or writing of files generally or covering the reading or writing of files other than those complying with the requirements of the specifications for the Office Schemas.

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"

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.

Microsoft reserves the right to terminate this license grant if you sue Microsoft or any of Microsoft's affiliates for patent infringement over claims relating to reading or writing of files that comply with the Office Schemas.

You should consult applicable export control laws and regulations to determine whether they apply to your Licensed Implementation.

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