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Posted to dev@poi.apache.org by David Fisher <df...@jmlafferty.com> on 2008/04/13 08:08:29 UTC
Is OOXML Inadvertantly Encumbered, and How to Resolve the Question.
Hi Andy,
Please read all of this and think about it. I hope when you are done
and have reflected on it, your answer will finally be short and to the
point without any negative verbiage or threats, then we can perhaps
proceed to answer the question so that MSFT will, as you suggest, help
us build our houses.
As a preface, until I read the OSP when it was announced, I held a
similar opinion to yours - afraid that Microsoft would squash POI, if
given the opportunity. I'm not a lawyer, but I've read some legal
documents and had some of my own IP protected. To me the OSP seems OK,
but you have asked us to examine the issue.
A week ago I tried to referee this a little bit - and I suggested that
we make it private, only because I thought that things were being
discussed in a personal way with jibs and jabs. But enough said, I
don't want to worry about that and neither do you. (But with all due
respect, your writing style gives doubt.)
I suggest your question (it comes across as an assertion) is really
about whether sourcesense's work on OOXML has INADVERTANTLY encumbered
POI. In this case we are all friends here and you should ask simply
stated questions. Very simply - remember not everyone speaks English
as their native language - in some languages like Russian word order
and negation are less important, just different, or completely without
meaning. You should also proofread carefully, and avoid "thread
profusion".
From one of your threads:
> Unless you have a lawyer GIVING US/POI/Apache a legal opinion (as
> our now voluntary lawyer with a fiduciary responsibility to us that
> s/he accepts as our lawyer) that the MS contributions via source
> sense can be legally distributed and used under OSD-compatible terms
> (not to mention ASL), or if you're getting Microsoft to explain
> their OSP in those terms including that a "best effort" to "conform"
> is covered by the patent pledge (I.E. no sun style TCK with
> backended license terms), or if you're getting Microsoft to sign a
> CLA-C then guess I just don't care what you're saying. Nor should
> anyone, you're a guy with a blog and an opinion. There are millions
> of them!
In your long email, this comment is the most pertinent, and reflects
what I have been thinking since you raised this issue. I have been
busy with a death in my family, and have not been able to follow up
with Nick, Yegor, or anyone else.
I would however prefer a different phrasing than yours that doesn't
end with these last sentences. There certainly aren't a million
opinions in this group.
Here's how I would say it, and you can tell us if you think it gives
us a way to get the appropriate advice in order to resolve this issue.
(We do care what you think, if stated constructively)
(1) Request that the ASF's legal counsel offer a legal opinion that
the MS contributions (Gianugo says these don't exist and are NOT
MSFT's contributions, you assert otherwise) via sourcesense can be
legally distributed and used under OSD/ASL compatible terms, OR
(2) Get Microsoft to explain their OSP in those terms including a
"best effort" to "conform" is covered by patent pledge, OR
(3) Have Microsoft sign a CLA-C that covers sourcesense, or even
better any Microsoft contributions to Apache POI.
To me these are all reasonable assurances to seek, BUT with proper
consideration of Gianugo's statements, (1) is flawed and should be
replaced by:
(1a) Request that the ASF's legal counsel offer a legal opinion that
sourcesense's contributions can be legally distributed and used under
OSD/ASL compatible terms because their CLA-C is valid and there are no
MSFT patent issues, OR
(1b) Request that the ASF's legal counsel offer a legal opinion that
even if MSFT patents are "broached" by sourcesense's contributions
these can be legally distributed and used used under OSD/ASL
compatible terms because their CLA-C is valid and the OSP truly covers
any MSFT patent issues, OR ...
Would you agree to proceed with the OOXML branch if any of 1a, 1b, 2,
or 3 are ultimately answered in the positive?
(I propose you should say something here.)
From your other thread, I'll show by example how you are being
destructive of a reasonable dialog. This is a bit of a diatribe, and
you need not respond. I'm not trying to flame, I'm making a point
about your style, and how you rub people the wrong way even though
your intent is good.
> Unless explicitly addressed (which it looks like you're starting to
> try to do), I expect the contributions to be removed from the
> repository. If they are not addressed, removed, then I'll remove them.
OOXML *IS* a branch and *IS* not released. I've not seen a vote to
release it, have you? Isn't that the time to vote -1?
Put your nuclear bomb back into your pocket, and stop the threats, as
far as I know WE ARE TRYING to address your issues as we understand
them. (I am a former diabetic and my advice is chill out, have
patience, think through and proof read your responses, this advice has
helped me. I know from experience some on this list will not even be
able to read your prose properly.)
> Noting that I'll risk my continued access rights and at some point
> "Apache POI founded kicked out of POI over Source Sense OOXML" gets
> slashdotted. Neither of us really wants it to come to that.
(I keep erasing negative comments here, why do I keep wanting to say
something mean? Maybe because that same headline flashed in my head
when you dropped in the -1 in the first place. My other was Andy
hasn't been participating much lately, where has he been?)
If you remove them without giving us time to address them as you
suggest above then I *WILL* start a vote myself with different spin,
maybe "Remove Apache POI Founder For Abuse of Power". See, I can be
nasty too. Bully for me and bully for you? These kind of comments get
in the way of resolution, they are pig effluent.
> Can you instead EXPLICITLY address the issues rather than threaten
> to ignore my -1?
It would have helped us all if YOU had ACTUALLY raised YOUR issues
without dropping a VETO BOMB. (I don't need to say which government's
executive branch this action is analogous to. I'm a citizen of that
country, and have lived with it for more than 7 years. Sorry another
negative comment - not an opinion - a feeling - a reaction)
> Why am I willing to go this far? Because I feel a deep
> responsibility to the banking, financial, government and other
> institutions that have supported us over the years and I want to
> protect POI. Can't you work with me on that?
We can all work with you, but it would have really, really helped if
you had started out with a question about sourcesense's CLA and
whether it was clearly NOT WFH and whether or not a patent issue
clause was present or necessary. This would have been constructive.
Your -1 is destructive, we are human beings with feelings and not
computers that never sleep.
Peace and good night,
Dave
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Re: Is OOXML Inadvertantly Encumbered, and How to Resolve the Question.
Posted by "Andrew C. Oliver" <ac...@buni.org>.
David Fisher wrote:
***snipping out all the bla bla not related to the actual matter at hand***
>
> Here's how I would say it, and you can tell us if you think it gives us
> a way to get the appropriate advice in order to resolve this issue.
> (We do care what you think, if stated constructively)
>
> (1) Request that the ASF's legal counsel offer a legal opinion that the
> MS contributions (Gianugo says these don't exist and are NOT MSFT's
> contributions, you assert otherwise) via sourcesense can be legally
> distributed and used under OSD/ASL compatible terms, OR
which made me seriously wonder if he'd done his homework (under the laws
of most countries, and various international conventions) if you take
their money for the work they own it unless you contractually say
otherwise. He clarified this with a much better worded definative
statement. This is enough for me on that point (but not the patent point).
> (2) Get Microsoft to explain their OSP in those terms including a "best
> effort" to "conform" is covered by patent pledge, OR
> (3) Have Microsoft sign a CLA-C that covers sourcesense, or even better
> any Microsoft contributions to Apache POI.
>
> To me these are all reasonable assurances to seek, BUT with proper
> consideration of Gianugo's statements, (1) is flawed and should be
> replaced by:
>
> (1a) Request that the ASF's legal counsel offer a legal opinion that
> sourcesense's contributions can be legally distributed and used under
> OSD/ASL compatible terms because their CLA-C is valid and there are no
> MSFT patent issues, OR
> (1b) Request that the ASF's legal counsel offer a legal opinion that
> even if MSFT patents are "broached" by sourcesense's contributions these
> can be legally distributed and used used under OSD/ASL compatible terms
> because their CLA-C is valid and the OSP truly covers any MSFT patent
> issues, OR ...
>
> Would you agree to proceed with the OOXML branch if any of 1a, 1b, 2, or
> 3 are ultimately answered in the positive?
>
> (I propose you should say something here.)
>
I'll say whatever I want wherever I like. If there is a public
authoritative note showing everyone did their homework on this part that
the patent promise is legally binding, "covers" includes "best effort"
and we can even legally have it in the repository, do snapshot releases,
all the stuff we've done all along and our users and developers are
protected -- of course I'll withdraw my -1.
>
> OOXML *IS* a branch and *IS* not released. I've not seen a vote to
> release it, have you? Isn't that the time to vote -1?
>
No. because I'm not convinced that we're not in patent peril by merely
having it in the repository and doing occasional builds. More than one
system went in production by a random daily snapshot.
As I said none of my emails have emotional content other than
frustration because until I started being more explicit you all just
weren't listening.
** snip **
--
Buni Meldware Communication Suite
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Re: Is OOXML Inadvertantly Encumbered, and How to Resolve the Question.
Posted by "Andrew C. Oliver" <ac...@buni.org>.
Please don't address "surrogate" or "proxy" interest stuff there is
enough confusion already.
> I'm certainly -1 on releasing the OOXML branch until the issue is
> resolved to the satisfaction of the ASF's legal counsel.
>
> I'm +1 on work proceeding on the OOXML branch. If the next release
> occurs without such assurance then I'm -1 on it until we are sure
> nothing from OOXML has spilled over into the release.
>
However, as is my right, I've vetoed the commit:
http://www.apache.org/foundation/voting.html
However, I've given you several ways to resolve my concern. Gianugo
threatened to override it, and I escalated by saying essentially "I will
take this to the logical conclusion if you do". If we start now working
together to resolve the concern then we'll potentially avoid all of this
as I'm willing to wait (despite the legal risk of doing so) while just
waving a big red flag DO NOT USE POI'S OOXML STUFF OR YOU MAY BE IN
LEGAL PERIL to users (there are production systems in large companies
running snapshots of my code that hadn't even gone to release yet).
I ask you to be helpful in not participating on either side in surrogate
proxy stuff from outer-interested parties and instead let's work to
resolve the issue (as it is distracting, confusing and irrelevant). deal??
--
Buni Meldware Communication Suite
http://buni.org
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Calendaring (including freebusy),
Rich Webmail, Web-calendaring, ease
of installation/administration.
Re: Is OOXML Inadvertantly Encumbered, and How to Resolve the Question.
Posted by David Fisher <df...@jmlafferty.com>.
Hi Jason,
Thanks, I'll look into this by more than skimming when I have more time.
It still does not really change points (1a), (1b), (2) and (3). An
advantage of participating in the ASF ought to be that these legal
matters should be discussed, and in this case discussed with Microsoft
by the ASF's legal counsel. It is my sincere hope and expectation that
the ASF has enough Intellectual Property savvy to resolve it. Once
resolved, then this resolution ought to be enough for the project to
vote +1 to release OOXML support in POI.
I truly believe that sourcesense is acting in good faith, and I also
believe that Andy is as well. Microsoft we all have good reason to
doubt.
I'm certainly -1 on releasing the OOXML branch until the issue is
resolved to the satisfaction of the ASF's legal counsel.
I'm +1 on work proceeding on the OOXML branch. If the next release
occurs without such assurance then I'm -1 on it until we are sure
nothing from OOXML has spilled over into the release.
This is important to resolve as significant progress has been made on
trunk. Enough so that a release there should happen soon.
But we aren't actually voting on this yet.
Regards,
Dave
On Apr 13, 2008, at 1:43 AM, Jason Harrop wrote:
> Hi
>
> On Sun, Apr 13, 2008 at 4:08 PM, David Fisher
> <df...@jmlafferty.com> wrote:
>> As a preface, until I read the OSP when it was announced, I held a
>> similar
>> opinion to yours - afraid that Microsoft would squash POI, if given
>> the
>> opportunity. I'm not a lawyer, but I've read some legal documents
>> and had
>> some of my own IP protected. To me the OSP seems OK, but you have
>> asked us
>> to examine the issue.
>
> I'm attaching Paul E. Merrell, J.D.'s view of the OSP.
>
> cheers
>
> Jason
>
> ---------- Forwarded message ----------
> Date: Sun, Apr 13, 2008 at 4:04 PM
> Subject: Re: Rejection of any ENCUMBERED Microsoft Donation to POI
> To: Jason Harrop <jh...@gmail.com>
>
> Hi, Jason,
>
> The most authoritative source to cite for the Microsoft Open
> Specification Promise not conferring sufficient rights to implement
> OOXML is here. <http://law.bepress.com/unswwps/flrps/art71/>. If you
> compare it with the earlier Groklaw EOOXML Objections analysis, you'll
> see that the University of New South Wales law professors repeatedly
> cite the EOOXML Objections document and agree with virtually every
> point in it, but flesh it out with more legal research.
>
> If you would like to read an absolutely comic response to the UNSW
> report by a Microsoft lawyer who claims to have co-authored the OSP,
> see <http://www.zdnetasia.com/news/software/
> 0,39044164,62037862,00.htm>.
> Nothing but evasions, but ponder what it means to be a Microsoft
> Regional Directory of Interoperability, especially if one is a lawyer
> rather than an engineer. I was rocking in my chair laughing
> uncontrollably when I read that job title. Yes, there are so many
> regional aspects to interoperability, but methinks they have more to
> do with IPR interop barriers than with the technology. :-) Are we
> setting up regional Microsoft law offices to write and negotiate IPR
> documents?
>
> The portion of the EOOXML Objections document that is relevant is here
> <http://www.groklaw.net/article.php?story=20070123071154671&query=eooxml+objections#Patent_rights_to_implement_the_Ecma_376_specification_have_not_been_granted
> >.
> It was published on January 23, 2007. I wrote the relevant sections
> myself.
>
> The significance of the earlier publication by Groklaw is that in all
> the time since, Microsoft has made no response that addressed the
> specific points raised. Their only apparent response to the EOOXML
> Objections document was a short "legal memorandum" citing no legal
> authorities that Microsoft solicited from the London office of a Swiss
> law firm. <http://www.bakernet.com/NR/rdonlyres/CC54A6B6-79E8-4E0D-B290-C836D5F70867/0/OpenXML.pdf
> >.
> It addresses none of the specific criticisms, ignores the existence of
> the criticism, and makes a series of grand but bald claims about how
> great the OSP is. The memorandum does not meet Bar disciplinary
> standards in the U.S. for memoranda giving legal advice to non-clients
> and is in truth nothing but propaganda.
>
> The OSP is merely a public relations tool. It confers no rights
> whatsoever, but is deceptively worded to convey the impression to the
> uneducated that it does. Microsoft's real licensing for OOXML is
> RAND-Z negotiated, that is, royalty-free but with IPR restrictions
> that have yet to be revealed and must be negotiated..Microsoft
> acknowledgement of the RAND-Z licensing requirement for OOXML can be
> found here. <http://openxmlcommunity.org/openxmlmyths.aspx#myth4>.
> Look here for a short discussion by a Microsoft in-house standards
> lawyer of what RAND-Z means. <http://standardslaw.com/wordpress/>.
>
> Microsoft added to its level of deception by claiming that it had
> submitted its OSP to ISO/IEC and that ISO/IEC had found the OSP
> satsifactory. While it is true that Microsoft submitted a copy of the
> OSP along with its IPR election form to ISO/IEC, it was a gratuitous
> inclusion. ISO/IEC do not evaluate IPR, leaving that to the courts.
> All that ISO/IEC require is that a particular form be filled out to
> accompany disclosure of the patents relevant to a given draft
> standard. In that form, the submittor promises, by checking boxes, to
> make IPR available by one of three methods. The form is here.
> <http://www.itu.int/dms_pub/itu-t/oth/04/04/T04040000020002PDFE.pdf>.
> As stated in the form:
>
> "However, while the Patent Holder in this situation is committing to
> not charging any monetary amount, the Patent Holder is still entitled
> to require that the implementer of the above document sign a license
> agreement that contains other reasonable terms and conditions such as
> those relating to governing law, field of use, reciprocity,
> warranties, etc."
>
> Beware the "etc." :-) Go here for a more detailed description of the
> ISO/IEC Patent Policy.
> <http://isotc.iso.org/livelink/livelink/fetch/2000/2122/3770791/customview.html?func=ll&objId=3770791&objAction=browse
> >.
> In summary, ISO/IEC build a database of patents claimed to read on a
> standard and require only the simple ambiguous promise. They do not
> evaluate IPR. Moreover, Microsoft's selection of the "negotiated"
> option implies that the OSP is not the real IPR document. I.e., if the
> OSP were the real IPR document, there would be no need for
> negotiation.
>
> It bears notice that the RAND-Z form Microsoft submitted applies only
> to Ecma 376 in the form it was submitted to JTC 1. A new one must be
> submitted for the changed version adopted. I do not know whether that
> has happened yet. My guess is not because the edited version is not
> due out until around May 1. Likewise, at this point the Open
> Specification Promise covers the Office 2003 XML Reference Schemas and
> Ecma 376, but does not yet cover ISO/IEC:29500-2008.
> <http://www.microsoft.com/interop/osp/default.mspx>. So as of tonight,
> the OSP is irrelevant in any event.
>
> I have been chasing iterations of the MS Office XML IPR documents
> around the mulberry bush since 2005. See in addition to the EOOXML
> Objections document linked above,
> <http://www.groklaw.net/article.php?story=20050330133833843#A4>
> (critiquing the Microsoft Office 2003 XML Reference Schemas patent
> license) and <http://www.groklaw.net/article.php?story=20051129101457378#A2
> >
> (Covenant not to sue for the same schemas, later ineffectively
> extended to cover OOXML as well).
>
> In my entire legal career, I never encountered any legal documents as
> weasel-worded as any of the three. They are simply reprehensible traps
> for the unwary and absolutely unethical.
>
> At the same time, I think Microsoft has irrevocably waived its rights
> to assert its patents against OOXML implementations, but not because
> of any of its IPR documents. Rather, I believe a court would find an
> implied waiver in Microsoft's public statements about the OSP and the
> degree of freedom it confers. The IPR documents themselves forbid
> looking outside their four corners themselves as a source of rights,
> so the public statements cannot be used to imply rights into the IPR
> documents themselves.
>
> However, this is an unavoidably risky opinion. Implied waivers do not
> exist until a court implies them, so to speak.
>
> In summary, I'll opine that any developer who plows hundreds or
> thousands of hours into developing an implementation of OOXML without
> a signed private agreement with Microsoft is building on legal
> quicksand of unknown depth. I can't imagine that any of the big
> software houses developing support for OOXML do not have separate
> agreements with Microsoft allowing them to do so.
>
> I stress that all of the above is personal opinion rather than legal
> advice. I resigned from the Bar when I retired and am no longer
> licensed to practice law.
>
> Please feel free to share this post as widely as you wish.
>
> Best regards,
>
> Paul E. Merrell, J.D. ("Marbux")
>
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Re: Is OOXML Inadvertantly Encumbered, and How to Resolve the Question.
Posted by "Andrew C. Oliver" <ac...@buni.org>.
I appreciate that you're trying to help but when I made the "attack of
the surrogates" comment it meant to express a lack of appreciation even
when "attack of the surrogates" might help either side of the argument.
"most authoritative" is really questionable. I want to RESOLVE this
in a way that gets the OOXML in here, not nix it. The below doesn't
seem constructive to those ends.
The main issue to me is that source sense, nick (and possibly others)
have either not done their homework or have not aired it enough in the
open. Once that is resolved we move forward.
Jason Harrop wrote:
> Hi
>
> On Sun, Apr 13, 2008 at 4:08 PM, David Fisher <df...@jmlafferty.com> wrote:
>> As a preface, until I read the OSP when it was announced, I held a similar
>> opinion to yours - afraid that Microsoft would squash POI, if given the
>> opportunity. I'm not a lawyer, but I've read some legal documents and had
>> some of my own IP protected. To me the OSP seems OK, but you have asked us
>> to examine the issue.
>
> I'm attaching Paul E. Merrell, J.D.'s view of the OSP.
>
> cheers
>
> Jason
>
> ---------- Forwarded message ----------
> Date: Sun, Apr 13, 2008 at 4:04 PM
> Subject: Re: Rejection of any ENCUMBERED Microsoft Donation to POI
> To: Jason Harrop <jh...@gmail.com>
>
> Hi, Jason,
>
> The most authoritative source to cite for the Microsoft Open
> Specification Promise not conferring sufficient rights to implement
> OOXML is here. <http://law.bepress.com/unswwps/flrps/art71/>. If you
> compare it with the earlier Groklaw EOOXML Objections analysis, you'll
> see that the University of New South Wales law professors repeatedly
> cite the EOOXML Objections document and agree with virtually every
> point in it, but flesh it out with more legal research.
>
> If you would like to read an absolutely comic response to the UNSW
> report by a Microsoft lawyer who claims to have co-authored the OSP,
> see <http://www.zdnetasia.com/news/software/0,39044164,62037862,00.htm>.
> Nothing but evasions, but ponder what it means to be a Microsoft
> Regional Directory of Interoperability, especially if one is a lawyer
> rather than an engineer. I was rocking in my chair laughing
> uncontrollably when I read that job title. Yes, there are so many
> regional aspects to interoperability, but methinks they have more to
> do with IPR interop barriers than with the technology. :-) Are we
> setting up regional Microsoft law offices to write and negotiate IPR
> documents?
>
> The portion of the EOOXML Objections document that is relevant is here
> <http://www.groklaw.net/article.php?story=20070123071154671&query=eooxml+objections#Patent_rights_to_implement_the_Ecma_376_specification_have_not_been_granted>.
> It was published on January 23, 2007. I wrote the relevant sections
> myself.
>
> The significance of the earlier publication by Groklaw is that in all
> the time since, Microsoft has made no response that addressed the
> specific points raised. Their only apparent response to the EOOXML
> Objections document was a short "legal memorandum" citing no legal
> authorities that Microsoft solicited from the London office of a Swiss
> law firm. <http://www.bakernet.com/NR/rdonlyres/CC54A6B6-79E8-4E0D-B290-C836D5F70867/0/OpenXML.pdf>.
> It addresses none of the specific criticisms, ignores the existence of
> the criticism, and makes a series of grand but bald claims about how
> great the OSP is. The memorandum does not meet Bar disciplinary
> standards in the U.S. for memoranda giving legal advice to non-clients
> and is in truth nothing but propaganda.
>
> The OSP is merely a public relations tool. It confers no rights
> whatsoever, but is deceptively worded to convey the impression to the
> uneducated that it does. Microsoft's real licensing for OOXML is
> RAND-Z negotiated, that is, royalty-free but with IPR restrictions
> that have yet to be revealed and must be negotiated..Microsoft
> acknowledgement of the RAND-Z licensing requirement for OOXML can be
> found here. <http://openxmlcommunity.org/openxmlmyths.aspx#myth4>.
> Look here for a short discussion by a Microsoft in-house standards
> lawyer of what RAND-Z means. <http://standardslaw.com/wordpress/>.
>
> Microsoft added to its level of deception by claiming that it had
> submitted its OSP to ISO/IEC and that ISO/IEC had found the OSP
> satsifactory. While it is true that Microsoft submitted a copy of the
> OSP along with its IPR election form to ISO/IEC, it was a gratuitous
> inclusion. ISO/IEC do not evaluate IPR, leaving that to the courts.
> All that ISO/IEC require is that a particular form be filled out to
> accompany disclosure of the patents relevant to a given draft
> standard. In that form, the submittor promises, by checking boxes, to
> make IPR available by one of three methods. The form is here.
> <http://www.itu.int/dms_pub/itu-t/oth/04/04/T04040000020002PDFE.pdf>.
> As stated in the form:
>
> "However, while the Patent Holder in this situation is committing to
> not charging any monetary amount, the Patent Holder is still entitled
> to require that the implementer of the above document sign a license
> agreement that contains other reasonable terms and conditions such as
> those relating to governing law, field of use, reciprocity,
> warranties, etc."
>
> Beware the "etc." :-) Go here for a more detailed description of the
> ISO/IEC Patent Policy.
> <http://isotc.iso.org/livelink/livelink/fetch/2000/2122/3770791/customview.html?func=ll&objId=3770791&objAction=browse>.
> In summary, ISO/IEC build a database of patents claimed to read on a
> standard and require only the simple ambiguous promise. They do not
> evaluate IPR. Moreover, Microsoft's selection of the "negotiated"
> option implies that the OSP is not the real IPR document. I.e., if the
> OSP were the real IPR document, there would be no need for
> negotiation.
>
> It bears notice that the RAND-Z form Microsoft submitted applies only
> to Ecma 376 in the form it was submitted to JTC 1. A new one must be
> submitted for the changed version adopted. I do not know whether that
> has happened yet. My guess is not because the edited version is not
> due out until around May 1. Likewise, at this point the Open
> Specification Promise covers the Office 2003 XML Reference Schemas and
> Ecma 376, but does not yet cover ISO/IEC:29500-2008.
> <http://www.microsoft.com/interop/osp/default.mspx>. So as of tonight,
> the OSP is irrelevant in any event.
>
> I have been chasing iterations of the MS Office XML IPR documents
> around the mulberry bush since 2005. See in addition to the EOOXML
> Objections document linked above,
> <http://www.groklaw.net/article.php?story=20050330133833843#A4>
> (critiquing the Microsoft Office 2003 XML Reference Schemas patent
> license) and <http://www.groklaw.net/article.php?story=20051129101457378#A2>
> (Covenant not to sue for the same schemas, later ineffectively
> extended to cover OOXML as well).
>
> In my entire legal career, I never encountered any legal documents as
> weasel-worded as any of the three. They are simply reprehensible traps
> for the unwary and absolutely unethical.
>
> At the same time, I think Microsoft has irrevocably waived its rights
> to assert its patents against OOXML implementations, but not because
> of any of its IPR documents. Rather, I believe a court would find an
> implied waiver in Microsoft's public statements about the OSP and the
> degree of freedom it confers. The IPR documents themselves forbid
> looking outside their four corners themselves as a source of rights,
> so the public statements cannot be used to imply rights into the IPR
> documents themselves.
>
> However, this is an unavoidably risky opinion. Implied waivers do not
> exist until a court implies them, so to speak.
>
> In summary, I'll opine that any developer who plows hundreds or
> thousands of hours into developing an implementation of OOXML without
> a signed private agreement with Microsoft is building on legal
> quicksand of unknown depth. I can't imagine that any of the big
> software houses developing support for OOXML do not have separate
> agreements with Microsoft allowing them to do so.
>
> I stress that all of the above is personal opinion rather than legal
> advice. I resigned from the Bar when I retired and am no longer
> licensed to practice law.
>
> Please feel free to share this post as widely as you wish.
>
> Best regards,
>
> Paul E. Merrell, J.D. ("Marbux")
>
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Re: Is OOXML Inadvertantly Encumbered, and How to Resolve the Question.
Posted by Jason Harrop <jh...@gmail.com>.
Hi
On Sun, Apr 13, 2008 at 4:08 PM, David Fisher <df...@jmlafferty.com> wrote:
> As a preface, until I read the OSP when it was announced, I held a similar
> opinion to yours - afraid that Microsoft would squash POI, if given the
> opportunity. I'm not a lawyer, but I've read some legal documents and had
> some of my own IP protected. To me the OSP seems OK, but you have asked us
> to examine the issue.
I'm attaching Paul E. Merrell, J.D.'s view of the OSP.
cheers
Jason
---------- Forwarded message ----------
Date: Sun, Apr 13, 2008 at 4:04 PM
Subject: Re: Rejection of any ENCUMBERED Microsoft Donation to POI
To: Jason Harrop <jh...@gmail.com>
Hi, Jason,
The most authoritative source to cite for the Microsoft Open
Specification Promise not conferring sufficient rights to implement
OOXML is here. <http://law.bepress.com/unswwps/flrps/art71/>. If you
compare it with the earlier Groklaw EOOXML Objections analysis, you'll
see that the University of New South Wales law professors repeatedly
cite the EOOXML Objections document and agree with virtually every
point in it, but flesh it out with more legal research.
If you would like to read an absolutely comic response to the UNSW
report by a Microsoft lawyer who claims to have co-authored the OSP,
see <http://www.zdnetasia.com/news/software/0,39044164,62037862,00.htm>.
Nothing but evasions, but ponder what it means to be a Microsoft
Regional Directory of Interoperability, especially if one is a lawyer
rather than an engineer. I was rocking in my chair laughing
uncontrollably when I read that job title. Yes, there are so many
regional aspects to interoperability, but methinks they have more to
do with IPR interop barriers than with the technology. :-) Are we
setting up regional Microsoft law offices to write and negotiate IPR
documents?
The portion of the EOOXML Objections document that is relevant is here
<http://www.groklaw.net/article.php?story=20070123071154671&query=eooxml+objections#Patent_rights_to_implement_the_Ecma_376_specification_have_not_been_granted>.
It was published on January 23, 2007. I wrote the relevant sections
myself.
The significance of the earlier publication by Groklaw is that in all
the time since, Microsoft has made no response that addressed the
specific points raised. Their only apparent response to the EOOXML
Objections document was a short "legal memorandum" citing no legal
authorities that Microsoft solicited from the London office of a Swiss
law firm. <http://www.bakernet.com/NR/rdonlyres/CC54A6B6-79E8-4E0D-B290-C836D5F70867/0/OpenXML.pdf>.
It addresses none of the specific criticisms, ignores the existence of
the criticism, and makes a series of grand but bald claims about how
great the OSP is. The memorandum does not meet Bar disciplinary
standards in the U.S. for memoranda giving legal advice to non-clients
and is in truth nothing but propaganda.
The OSP is merely a public relations tool. It confers no rights
whatsoever, but is deceptively worded to convey the impression to the
uneducated that it does. Microsoft's real licensing for OOXML is
RAND-Z negotiated, that is, royalty-free but with IPR restrictions
that have yet to be revealed and must be negotiated..Microsoft
acknowledgement of the RAND-Z licensing requirement for OOXML can be
found here. <http://openxmlcommunity.org/openxmlmyths.aspx#myth4>.
Look here for a short discussion by a Microsoft in-house standards
lawyer of what RAND-Z means. <http://standardslaw.com/wordpress/>.
Microsoft added to its level of deception by claiming that it had
submitted its OSP to ISO/IEC and that ISO/IEC had found the OSP
satsifactory. While it is true that Microsoft submitted a copy of the
OSP along with its IPR election form to ISO/IEC, it was a gratuitous
inclusion. ISO/IEC do not evaluate IPR, leaving that to the courts.
All that ISO/IEC require is that a particular form be filled out to
accompany disclosure of the patents relevant to a given draft
standard. In that form, the submittor promises, by checking boxes, to
make IPR available by one of three methods. The form is here.
<http://www.itu.int/dms_pub/itu-t/oth/04/04/T04040000020002PDFE.pdf>.
As stated in the form:
"However, while the Patent Holder in this situation is committing to
not charging any monetary amount, the Patent Holder is still entitled
to require that the implementer of the above document sign a license
agreement that contains other reasonable terms and conditions such as
those relating to governing law, field of use, reciprocity,
warranties, etc."
Beware the "etc." :-) Go here for a more detailed description of the
ISO/IEC Patent Policy.
<http://isotc.iso.org/livelink/livelink/fetch/2000/2122/3770791/customview.html?func=ll&objId=3770791&objAction=browse>.
In summary, ISO/IEC build a database of patents claimed to read on a
standard and require only the simple ambiguous promise. They do not
evaluate IPR. Moreover, Microsoft's selection of the "negotiated"
option implies that the OSP is not the real IPR document. I.e., if the
OSP were the real IPR document, there would be no need for
negotiation.
It bears notice that the RAND-Z form Microsoft submitted applies only
to Ecma 376 in the form it was submitted to JTC 1. A new one must be
submitted for the changed version adopted. I do not know whether that
has happened yet. My guess is not because the edited version is not
due out until around May 1. Likewise, at this point the Open
Specification Promise covers the Office 2003 XML Reference Schemas and
Ecma 376, but does not yet cover ISO/IEC:29500-2008.
<http://www.microsoft.com/interop/osp/default.mspx>. So as of tonight,
the OSP is irrelevant in any event.
I have been chasing iterations of the MS Office XML IPR documents
around the mulberry bush since 2005. See in addition to the EOOXML
Objections document linked above,
<http://www.groklaw.net/article.php?story=20050330133833843#A4>
(critiquing the Microsoft Office 2003 XML Reference Schemas patent
license) and <http://www.groklaw.net/article.php?story=20051129101457378#A2>
(Covenant not to sue for the same schemas, later ineffectively
extended to cover OOXML as well).
In my entire legal career, I never encountered any legal documents as
weasel-worded as any of the three. They are simply reprehensible traps
for the unwary and absolutely unethical.
At the same time, I think Microsoft has irrevocably waived its rights
to assert its patents against OOXML implementations, but not because
of any of its IPR documents. Rather, I believe a court would find an
implied waiver in Microsoft's public statements about the OSP and the
degree of freedom it confers. The IPR documents themselves forbid
looking outside their four corners themselves as a source of rights,
so the public statements cannot be used to imply rights into the IPR
documents themselves.
However, this is an unavoidably risky opinion. Implied waivers do not
exist until a court implies them, so to speak.
In summary, I'll opine that any developer who plows hundreds or
thousands of hours into developing an implementation of OOXML without
a signed private agreement with Microsoft is building on legal
quicksand of unknown depth. I can't imagine that any of the big
software houses developing support for OOXML do not have separate
agreements with Microsoft allowing them to do so.
I stress that all of the above is personal opinion rather than legal
advice. I resigned from the Bar when I retired and am no longer
licensed to practice law.
Please feel free to share this post as widely as you wish.
Best regards,
Paul E. Merrell, J.D. ("Marbux")
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