decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


To read comments to this article, go here
The Gotcha on that MS License on the Office 2007 "Giveaway"
Monday, November 27 2006 @ 11:23 AM EST

You've probably seen the story about Microsoft's "royalty-free licensing program" on its Office 2007 user interface:
Microsoft on Tuesday announced a royalty-free licensing program so that outside developers can apply the Office 2007 interface to their own applications.

The license, which can be applied to applications on any platform, Linux and Mac OS X included, gives developers the right to duplicate Office 2007's new interface elements, including the top-of-the-window Ribbon, the Mini Toolbar, and galleries. The license is perpetual, and no fees will be charged, Microsoft promised.

"There's no fee, you don't owe Microsoft any royalties, and the license is perpetual -- meaning that the terms won't change," wrote Jensen Harris, lead program manager for the Office user experience effort, in a blog entry Tuesday. "This should give you the confidence you need to build a business or product on top of the Office UI platform, secure in the knowledge that you've licensed the technology and research you're using in your product."

Unfortunately, there is a gotcha. Microsoft doesn't actually say "anyone" can use this license, as the story indicates; it says in their blog entry that "virtually anyone" can. Isn't there always a catch with Microsoft? Usually a GPL gotcha? So who can and who can't?

To see this gotcha, you have to actually read the license, which you can find here. Of course, it's only in the doc format, Microsoft's format, because deep down Microsoft doesn't really care about interoperability for FOSS users. There is absolutely no reason it couldn't make it available in an OOo-friendly format or PDF or plain text or HTML, but happily, despite the difficulties Microsoft invariably puts in the way of anyone using FOSS, we can use OpenOffice.org to read it, thanks to some wonderful coders who manfully struggled to find ways to interoperate with Microsoft's secret stuff, without much of a helping hand from Redmond, which could easily make all software on Planet Earth smoothly interoperable if it actually felt like it. That's what standards are for. You don't need interoperabilty agreements with a chosen few instead.

When you read the document, you'll find you can use the offered Microsoft technology, but only if you agree *not to allow sublicensing*. That's the taint, and in effect that means you can not use it in a GNU/Linux system:

d. “Microsoft IP” means the intellectual property rights of Microsoft and its subsidiaries that without this license you would necessarily infringe by copying the Design Guidelines or making, using or distributing your Licensed UI. These rights include pending utility and design patent claims, copyrights, trade dress and trademark rights....

2. LICENSE GRANTS. If you comply with this agreement, Microsoft grants you a non-exclusive, perpetual, royalty free license under the Microsoft IP to:

a. copy and reference the Design Guidelines internally to develop the Licensed UI for your Licensed Products; and

b. make, copy, use and distribute the Licensed UI as part of your Licensed Products....

This license contains no sub-license rights. If you allow others to use, copy, modify or distribute your Licensed UI in their products, your contract with them must state that they receive no Microsoft rights in the Licensed UI from you. They can request a license from Microsoft at http://msdn.microsoft.com/officeui.

To make it worse, they add this:

4. RESERVATION OF RIGHTS. Microsoft reserves all rights not expressly granted in this agreement. No additional rights (including any implied licenses) are granted by implication, estoppel or otherwise.

And then the blog entry explains the exclusions -- even if a programmer was willing to give up rights that we normally associate with FOSS -- and sadly there are a few like that -- Microsoft lays it all out:

There's only one limitation: if you are building a program which directly competes with Word, Excel, PowerPoint, Outlook, or Access (the Microsoft applications with the new UI), you can't obtain the royalty-free license.

Question for Microsoft: can you identify any OSI-approved Open Source licenses that neither grant rights to sublicense nor grant rights to incorporate all or any part of the application's code base in other applications of the type you here exclude? Perhaps it would be more honest to say virtually *no one* in the FOSS community, your principal competition, can use this license, and for sure the GPL need not apply.

Bob Sutor captures the essense of the offer:

Again, this is business, but look at what they are doing and not doing with respect to ODF. OOXML, and now the UI through this lens if you want to really understand what is going on. Their 2006 annual report lays out the perceived risk factors for open source.

I found this paragraph in the report the most interesting:

We may not be able to protect our intellectual property rights against piracy, infringement of our patents by third parties, or declining legal protection for intellectual property. We defend our intellectual property rights and combat unlicensed copying and use of software and intellectual property rights through a variety of techniques. Preventing unauthorized use or infringement of our rights is difficult. Piracy of our products represents a loss of revenue to us. While this adversely affects U.S. revenue, the impact on revenue from outside the United States is more significant, particularly in countries where laws are less protective of intellectual property rights. Similarly, the absence of harmonized patent laws makes it more difficult to ensure consistent respect for patent rights. Future legal changes could make this even more challenging. Throughout the world, we actively educate consumers about the benefits of licensing genuine products and obtaining indemnification benefits for intellectual property risks, and we educate lawmakers about the advantages of a business climate where intellectual property rights are protected. However, continued educational and enforcement efforts may fail to enhance revenue. Reductions in the legal protection for software intellectual property rights or compliance with additional intellectual property obligations impacting the rights of software developers could both adversely affect revenue.

In short, they want strong patent laws around the world so they can make buckets of money. At least they told the SEC the truth about that. It's not about stimulating innovation -- just stone cold cash, to "enhance revenue". And here's an intriguing detail, in the section about perceived risks from security issues:

The cost of these steps could reduce our operating margins. Despite these efforts, actual or perceived security vulnerabilities in our products could lead some customers to seek to return products, to reduce or delay future purchases, or to use competing products. Customers may also increase their expenditures on protecting their existing computer systems from attack, which could delay adoption of new technologies. Any of these actions by customers could adversely affect our revenue. In addition, actual or perceived vulnerabilities may lead to claims against us. While our license agreements typically contain provisions that eliminate or limit our exposure to such liability, there is no assurance these provisions will be held effective under applicable laws and judicial decisions.

Ah, from the horse's mouth: Microsoft just might be held legally responsible for selling software that is insecure. Say, that makes me wonder: what about that offensive EULA whereby Microsoft gets to scan your computer, track its every breath, and kill it if they feel like it (or should I say cut off its air supply)? Do you suppose it might not actually hold up in court? Well, ask your lawyer, but why not do as the Microsoft annual report suggests many may do and refuse to agree to such humiliating terms in the first place? After all, you do have a choice now. To paraphrase the Barkis character in Charles Dickens' David Copperfield, "Linux is willing."


  View Printable Version


Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )