A disappointing surprise from the SFLC


I could make a full time job of tearing down the “say anything we possibly can” approach to Open XML opposition. Seems like we’re seeing a new level of arm-flailing and finger pointing, now that we are weeks away from the close of the post BRM period. I wanted to offer some comments about the SFLC’s analysis of the OSP. This is an unfortunate report, these all represent issues that have been raised in a campaign that includes innuendo and supposition, leaving out inconvenient information and language and ignoring the same, similar, or less attractive, language that exists for ODF.


The big news in this is their admission/confirmation that the OSP is in fact compatible with the GPL.  They say “The OSP cannot be relied upon by GPL developers for their implementations not because its provisions conflict with the GPL but because it does not provide the freedom that the GPL requires.” They go on to identify that “freedom” being linked to the OSP being unsafe is because new versions of the specifications could be excluded from the OSP in the future. 


It is unusual for promises like the OSP to automatically include every spec or all future versions (IBM’s pledge is exactly like ours).  The norm is for new versions to be added to them to be covered.  In the case of Sun’s statement new versions are automatically added only when they participate in the development of the new version to the extent that the OASIS IPR rules would then obligate them to provide patent rights under the OASIS IPR Policy.  None of these promises include future versions of the specifications without any qualification.


Let’s deal with the points one by one:


Irrevocable only for now


This section points out that the OSP only applies to listed versions of covered specifications. True, except that we have already committed to extending it to ISO/IEC DIS 29500 when it is approved in our filing with ISO/IEC. For ODF, IBM in their ISP takes the identical approach. Strange how things that seem appropriate for ODF are not appropriate for Open XML.


OSP covers specifications not code


Not true. The OSP is a promise to not assert patents that are necessarily infringed by implementations of covered specifications. Like all similar patent non-asserts (including the Sun and IBM versions for ODF) the promise covers that part of a product that implements that specification (and not other parts that have nothing to do with the specification). While the Sun covenant is silent about conformance to the specification, the OSP allows implementers the freedom to implement any (or all) parts of a covered specification and to the extent they do implement those portions (also known as conform to those parts) they are covered by the promise for those parts. Contrast that to the IBM pledge that requires total conformance and so programming errors or absence of something required by the spec (but not by an implementer’s product) means that the promise is totally void for that product.


No consistency with the GPL


Not true. As far as we are concerned we are happy to extend the OSP to implementers who distribute their code under any copyright license including the GPL. The FAQ cited just states what everyone knows and acknowledges, the GPL is a copyright license that is drafted in a way that leaves many issues (not just those related to patent rights) open to many interpretations. Any particular user or implementer should read the GPL carefully and make their own judgment about what it means and requires in accordance with their own circumstances. The FAQ states that Microsoft is not in a position to give blanket advice about the GPL to others. They missed these two FAQs for some reason…


“Q: Is the Open Specification Promise intended to apply to open source developers and users of open source developed software?


A: Yes. The OSP applies directly to all persons or entities that make, use, sell, offer for sale, imports and/or distributes an implementation of a Covered Specification. It is intended to enable open source implementations, and in fact several parties in the open source community have specifically stated that the OSP meets their needs. Moreover there are already a significant number of implementations of Covered Specifications that have been created and/or distributed under a variety of open source licenses as well as under proprietary software development models. Because open source software licenses can vary you may want to consult with your legal counsel to understand your particular legal environment.


Q: Is this Promise consistent with open source licensing, namely the GPL? And can anyone implement the specification(s) without any concerns about Microsoft patents?


A: The Open Specification Promise is a simple and clear way to assure that the broadest audience of developers and customers working with commercial or open source software can implement the covered specification(s). We leave it to those implementing these technologies to understand the legal environments in which they operate. This includes people operating in a GPL environment. Because the General Public License (GPL) is not universally interpreted the same way by everyone, we can’t give anyone a legal opinion about how our language relates to the GPL or other OSS licenses, but based on feedback from the open source community we believe that a broad audience of developers can implement the specification(s).”

Comments (63)

  1. GrayKnowlton says:

    Well, Bruce, I don’t think we have a "big rich companies" section of the OSP, I think it applies equally to big and small companies.

    Check out the Office System Solutions directory, and search for the Open XML technology area. There are 142 solutions listed there, most of them from smaller technology companies. Check out http://www.openxmlcommunity.org... see the applications there.

    I’m not trying to hide anything here, Google (pick your favorite big company) and Datawatch (Pick your favorite small company) have the same protection for Open XML under the OSP.

  2. GrayKnowlton says:

    Sorry Bruce, but I think you may have missed it. the IBM promise covers the 1.0 and 1.1 version of the ODF specification, and makes no mention of future versions. The Sun promise qualifies future versions based on their participation in OASIS and subsequent adherence to the OASIS IP rules.

    I’d like to remind folks that we have already committed to extending the OSP to DIS29500 in its post BRM modified form.

  3. GrayKnowlton says:

    Watch out for the black helicopters Ray…

    XML support in Office arrived 8 years ago (which means code was written 10 years ago). And while you’re out looking for for the Open XML actions we’re taking, you should dig up the history of binary format specification licensing we weren’t doing since 2003, and dig up that long list of actions we’ve taken in addressing the thousands of applications that read and write the binary formats.

  4. GrayKnowlton says:

    My last comment on this topic is this: Ian, you said it best of all… more than 75% of the hits on this post originated from Groklaw, which should give you a hint about who has the motivation to sustain this discussion.

    In REALITY, this issue was over a long time ago.

    For those of you desperate to uncover a grand conspiracy, sit and watch for a while and see what happens… when we take no action against people impelementing Open XML, and when we post more open source projects for file format conversion, and more SDK’s and have more products supporting the formats, etc., will you be disappointed? or will you be satisifed?

  5. GrayKnowlton says:

    Hi Ray,

    Hi Ray,

    It’s not "Trust me." Regarding the ISO process, ISO is the organization declaring that Open XML passed their bar for IP requirements.

    For Microsoft, it is "Show me" and "Watch me." Show me where we’ve taken action on an Open XML implementation, and "watch me" demonstrate the commitment to interop outlined in the principles announced a few weeks back. (Note that my blog post landed a long time before the announcment of Interop Principles.)

    http://blogs.technet.com/gray_knowlton/archive/2008/02/01/on-motivation-and-commitment-to-open-file-formats.aspx

  6. Anonymous says:

    The FUD machine from the anti-Open XML camp has been running on the high-octane fuel of the Software

  7. GrayKnowlton says:

    I think Mark, Keenan, Peter, (others) have really hit it on the spot: this has nothing to do with ISO or DIS29500. As Mark points out, objection on these grounds implicates a lot of standards, including IBM’s approach on ODF.

    And Peter, are you really suggesting that ISO hold Microsoft (and the participants of Ecma TC-45 like Apple and Novell) to a different standard than companies who need to cover ODF with these promises? Really?

    Bruce, I think you’re going in circles now. Either you think the OSP applies equally or you don’t (it does). So we can continue to go in circles or just stop debating the point. Again, if you’re implying that Google or any other company (big or small) has to enter into some special agreement to implement Open XML, that is inaccurate. Google had an implmentation of VML in its Maps product long before the Open XML discussion started anyway.

    Read: http://code.google.com/apis/maps/documentation/overlays.html

    Anonymous (honest)… in a world where accountability and compliance are mandates, there is little room for games and slight-of-hand. I’d give the government ageinces a little more credit.

  8. GrayKnowlton says:

    Hi Bruce, as far as I know, we have no interop agreement with Google. I could be wrong, but I’ve never seen one.

    Rob, sorry, I’m not accusing you of anything. And I think that for the most part, Don is a really nice guy, and some of the other NZ OSS people I had a chance to meet gave some excellent feedback on the spec. (Odd, again, however that Don Christie also preface a majority of comments with "I am offended by your remarks" as well).

    I’ll reiterate my offer to you, in all seriousness. Because I think after reading your second comment, we definitely agree that sorting out the issues is very important. We might differ on the role of blog posts in doing so, this is why I’ve offered the mail alias to you for addressing specific concerns. If you have concerns, please use it.

    Stepping back for a minute, do you see how hard Microsoft is defending the IPR policy for Open XML? Could you understand why? — it’s not because we want to meet the goals of the process (the ISO process would not have begun withouth passing ISO IPR guidelnies, that was addressed a long time ago), it’s because we are keenly interested in the adoption of Open XML. Does it make sense for us to propose a standard then prevent people from implementing it? — I don’t think so.

  9. quux says:

    Scott B:

    Are there any specs released directly under GPL?

    If not, why not?

  10. GrayKnowlton says:

    Shawn… if by "narrowly enough" you mean "exactly what was said by SFLC," then I’d agree.

  11. quux says:

    Matt:

    ODF did not go through "the full process." It went through the "Publicly Available Specification" (PAS) process, which has even less steps than the "Fast-track procedure" OOXML is currently in.

    For details, see the ISO procedures link below. Page 61 of that PDF is especially handy, as it shows the different ISO processes in a fairly simple chart.

    http://isotc.iso.org/livelink/livelink/4230504/ISO_IEC_Directives__Part_1__Procedures_for_the_technical_work___2008__6th_ed.___PDF_format_?func=doc.Fetch&nodeid=4230504

    I think OOXML should go through one of the processes that includes a committee (2.5) stage, though. And no, ODF did not. It went through the PAS process, according to Rob Wier.

  12. GrayKnowlton says:

    Ernest,

    What’s wrong with providing protection for the specifications that actually exist? even the +1 spec, the post BRM DIS29500 we’ve already committed to protecting, both with an "irrevocable promise."

  13. GrayKnowlton says:

    Rhetorical Device? really Bruce? I was on the newspaper staff in school, not the debate team. I’m more concerned with discussing the issue than conducting a moderated forum.

    The arcile says that "Microsoft does not provide protection for Open XML with the OSP." Not only do we disagree with the words, Open XML already has many, many implmenetations (which include IBM, Google, Novell, Apple and others) to show for it.

    The SFLC piece is the thing I would take to be the "rhetorical device." — nothing about it reflects the world we live in.

    The "Nobody can implement Open XML" argument ends here: http://blogs.technet.com/gray_knowlton/archive/2008/03/07/silverlight-viewer-for-open-xml.aspx

    and here:

    http://www.openxmlcommunity.org

    The "Sincerity" discussion ends here: http://blogs.technet.com/gray_knowlton/archive/2008/02/01/on-motivation-and-commitment-to-open-file-formats.aspx

  14. GrayKnowlton says:

    Hi Rob,

    Odd that your comments sound A LOT (exactly) like Don Christie, to whom I spoke while in New Zealand recently and heard these very same words. I did read Rob’s post, but I thought I’d let that rest because I’m bored with beating up on him. Besides, if you are so inclined, you should ask Rob to explain the ODF maintenance plan to you. That should tell you all you need to know about the strategy being employed.

    I am grateful, however, for the acknowledgement that your Anti-Open XML stance is because of your general Anti-Microsoft sentiment. I think that this is short-sighted, seems to me like Anti-Microsoft individuals would be lining up at our front door (like they have for quite some time) to take control of the Word, Excel and PowerPoint file format specifications.

    As far as recounting the entire history of Microsoft legal activity, again, it’s not really something that is helpful. The article in question states that Open XML Developers are not offered suitable protection. We disagree with the position strongly, and have a healthy set of facts and existing implementations to back it up.

    The great thing about being a large multi-national corproation is that you don’t get to say “irrevocable promise” and then retract that later. It would be really, really dumb for Microsoft to support standardized file formats in its products, then start suing people for doing the same thing, no?

    This isn’t a game of semantics, it is real. Hundreds of companies seem to have overcome this barrier with little difficulty. If you are actually developing software, and you have actual, specific concerns about your ability to implement the specifications, you are welcome to email Officeff@microsoft.com to discuss your SPECIFIC issues. Let’s knock off with the fear-mongering.

  15. GrayKnowlton says:

    Unfortunately Orlando, nobody is talking about sourceforge projects here. (Unless Google is placing its XLSX >> HTML viewing code on Sourceforge, or Apple is putting the iWork sourc up there, or maybe Datawatch, Intergen, IBM, Nuance, Novell, NeoOffice, and so on and so on…)

    Sure, there are plenty of sourceforge projects and reference implementations, but there are 150 or so solutions profiled in the Office System Solutions Directory, and several more listed on http://www.opexmlcommunity.org.

    You’ll never win an argument about Open XML not being implemented, we’re well beyond that by now.

  16. GrayKnowlton says:

    Bruce, if you could please post a link on my blog to action that Microsoft has taken against people who have developed solutions using Open XML, my readers would appreciate it. Good luck finding one. Instead of broadly implicating entire companies for their policies, let’s stick to a problem that we can examine closely, which is patent protection for the file formats in question. (Others at Microsoft can speak to the broader issue). We’re happy to let the existing implementations of Open XML speak to the willingness of developers to implement the spec. Nothing like a dose of reality to settle the paranoia, eh?: http://www.openxmlcommunity.org

    If SFLC would be opposed to IBM’s approach to ODF protection, then their report on ODF would have indicated so. There is no mention of the IBM promise.

    Dan, if you’re one to esclate issues to the point of absurdity, please feel free to do so somewhere else. But the rejection of SFLC’s inaccurate material is useful regardless of our willingness to interpret GPL for you, as are comments regarding the inconsistency of SFLC’s approach to ODF and Open XML.

    For both of you, again [repetition seems to be a favorite marketing strategy for anti-open xml people so I’ll employ the tactic here], I am saying that our unwillingness to interpret GPL does not equate to anything other than our unwillingness to interpret GPL.

  17. GrayKnowlton says:

    I don’t read it that way. From my POV, the comment says that it is inappropriate for us to offer an interpretation of the GPL for other potential users.

  18. GrayKnowlton says:

    Theo, I understand the point here, big companies can rely on the OSP just like the little ones do (and they are doing so today.)

    look here: http://blogs.technet.com/gray_knowlton/archive/2008/03/07/silverlight-viewer-for-open-xml.aspx

    These companies did not have to enter into a special agreement to develop their Open XML tools. Pay close attention to Gareth’s comments from Datawatch… they were also able to implement support for the binary formats (as did countless other software providers).

  19. Xanadu says:

    I am afraid you failed to read the last quote you put, it clearly is anti-GPL FUD to me.

  20. Bruce Perens says:

    The fallacy in your analysis is that SFLC would not like IBM or Sun’s patent covenants either. They oppose software patenting in general, Moglen has been very clear about that.

    The reason that GPL developers find it legally possible to work with Sun and IBM is that both companies have contributed directly to the development of GPL and LGPL code implementing the same standards that their covenants cover. Thus, they are not only bound by their covenants, but by the GPL language regarding patents, which unlike the covenants do adequately protect GPL developers.

    While there are differing opinions about the GPL, it is the same for any license. If lawyers never disagreed, there would be no reason for courts. GPL3, and the two other licenses using its text, LGPL3 and the Affero GPL3, became perhaps the most legally scrutinized licenses in the world during their development. Most of the major corporations in software had their lawyers on the GPL3 committees, as did many organizations like W3C, and many other interested parties. Because of the very large and diverse legal team that participated in its development, we can put forward the GPL3 family of licenses as more legally "solid" than, for example, Microsoft’s own licenses. But GPL2 has done quite well in this regard too – although we hear of many cases being settled in favor of the GPL developer by SFLC and others, no defendant has dared to go to court.

    We also have Microsoft’s past actions to consider when we look at its present promises. Nobody can argue that the company has behaved in a hostile manner toward Free Software developers, for example spreading patent FUD about our software and yet over a period of years refusing to disclose the particular patents and the code that Microsoft feels they cover. The ballot-box stuffing that occurred in ISO is another example of current reprehensible behavior. So, of course SFLC should interpret Microsoft’s promises in the worse possible light.

       Bruce Perens

  21. Dan_IT says:

    Gray, based on your last comment, I guess it’s now inappropriate for me to interpret what you’ve written as being useful in any context whatsoever… ?

  22. Rob Brown says:

    Hi Gray,

    You said "Instead of broadly implicating entire companies for their policies, let’s stick to a problem that we can examine closely…". Unfortunately, you can’t duck the issues like that.

    Microsoft’s anti-competitive behaviour and recent patent sabre-rattling are huge, all-pervading issues for consumers like me. Microsoft’s actions for its own profit have cost me money, and affected my ability to make IT decisions based on merit rather than lock-in. If you want me to list Microsoft’s actions that I’ve found particularly objectionable then I can, but I’m sure you’re perfectly aware what I mean.

    I believe that you have to accept that a broad section of your customer base does not trust Microsoft, and as Bruce says, will "interpret Microsoft’s promises in the worse possible light". Protesting that Microsoft is a changed, and trustworthy, company won’t carry any weight until your changed behaviour, and time, have allowed your customers to believe in you again.

    I’m anti-OOXML because I don’t trust Microsoft. Then again, I’m not particularly pro-ODF: the file format is not critical to me, I just need to get my work done. I could become more pro-OOXML, if the standard was governed independently of Microsoft.

    Perhaps you could block your nose and read Rob Weir’s "Contra Durusau" posting, and give some serious thought to his suggestions for making OOXML really independent:

    -Quote-

    1. Ecma changes their TC45 charter to explicitly call for all maintenance activities (corrigenda as well as technical revisions) to be performed in an SC34 WG.

    2. Ecma explicitly withdraws their submission on DIS 29500 maintenance from the agenda of the Oslo SC34 Plenary and instead submits a proposal asking for future OOXML work to be done in a new WG in SC34, with a non-Microsoft chair.

    3. Microsoft publicly states that they will hand operational control of OOXML to SC34, not only for maintenance of OOXML 1.0, but also for technical revisions, and that they will support this being done under JTC1 IPR rules, and using the JTC1 process, and that they will implement whatever revisions SC34 develops within 1 year of approval.

    -End Quote-

  23. Bruce Perens says:

    Gray Knowlton wrote: “Bruce, if you could please post a link on my blog to action that Microsoft has taken against people who have developed solutions using Open XML, my readers would appreciate it.”

    This is a common rhetorical device. You propose your own straw-man, and ask me to knock it down.

    Gray Knowlton further wrote: “If SFLC would be opposed to IBM’s approach to ODF protection, then their report on ODF would have indicated so. There is no mention of the IBM promise.”

    I have read the SFLC opinion letter. It is very clear that their opinion relies on the  Royalty-Free rules of the OASIS ODF standard committee and Sun and IBM’s commitments to comply with those rules as contributing members of that committee, not just upon the covenants. Microsoft did not choose to submit OOXML to a standards organization that asserts that sort of rule.

    But we should not pretend that this is just a legal question. OOXML is so large that a programmer can not be expected to learn it in his useful lifetime. Fully 10 times the size of ODF, to represent the same documents. That’s just one more reason (and there are others as well) that Microsoft’s sincerity is in question – the proposed standards document doesn’t appear to be meant to enable competing implementations.

  24. Leo Jacob says:

    “Instead of broadly implicating entire companies for their policies, let’s stick to a problem that we can examine closely”

    It would be rather strange to single out OOXML/OSP living in a vacuum separated from other Microsoft actions. The directors making the all the big decisions are ultimately the very same people in the company. They are the ones who made decisions that caused EU to fine the company in an unprecedented manner, they are the ones who made decisions that caused the company being investigated by both US and EU authorities, and so on. It’s the very same people still calling the shots.

    So, ask yourself, should we trust those who already have been charged, found guilty, and found continuing they illegal behavior? I don’t think so, really. The other hand is already way too deep in our pockets, should we just let them put in the other hand, too, because they’re assuring us that it’s ok?

    Because by the end of the day, it is in they hands how they want to proceed with OOXML. One soft voice in blogosphere does not count even the slightest when it comes to making more money.

    “interpret GPL for you”

    I think you should interpret GPL to yourselves first of all to understand what you are dealing with. GPL is the most widely used FLOSS license on the planet and if you are honest in your promises to interoperate then surely you can’t expect the majority to give up they principles just as a starters?

    Almost everybody else is already out they doing the interoperability thing, you know, and they all have learned to deal with and even prosper from GPL. You can do the same if you want but it takes a bit more than we’ve seen so far. The rules have evolved during the years and no single participant with single promise can make everything change. It’s actually really simple, you got to play by the rules set by others (the difficult part) or they simply won’t play with out (easy but unfortunate – but it’s up to you).

    Thanks for reading, to be taken with extreme seriousness 😉

  25. shawn says:

    Nice attempt to deflect there, Gray.  "Please link to action Microsoft has taken against developers of OOXML implementations"… if you define the criteria narrowly enough, then of course you can ensure that nothing matches.

    If you’d like to make this issue go away, just publish a complete implementation of the OOXML specification, licensed under the GNU General Public License, version 3.  Since Microsoft will then be bound by the GPL’s patent language, there will be no further issue.  This is exactly what IBM and Sun have done.  If you want to be treated like them, then act like them.

  26. Bruce Perens says:

    Gray Knowlton wrote: "IBM in their ISP takes the identical approach."

    Actually, that isn’t the case. IBM’s covenant does not have any language excluding later versions. Only the Microsoft covenant has that. Sun’s covenant explicitly grants rights to later versions.

  27. orlando says:

    gray, are you a lawyer?

  28. orlando says:

    The “Nobody can implement Open XML” argument ends here: http://blogs.technet.com/gray_knowlton/archive/2008/03/07/silverlight-viewer-for-open-xml.aspx

    Please define “implement” OOXML  ( ECMA and Microsoft have exhausted the argument of “there are sourceforge projects” that do this, do that … but they are all 10% beta software )

    By the way, is not the same to call some .NET libraries

    http://www.intergen.co.nz/How-do-we-do-it/Technologies/

    to do the hard *independent* and not Microsoft-free work to implement this beast:

    http://ooxmlisdefectivebydesign.blogspot.com/2008/03/bad-surprise-in-microsoft-office-binary.html

            Orlando

  29. Bruce Perens says:

    Gray Knowlton writes: "I was on the newspaper staff in school, not the debate team."

    Tee hee. Let’s be clear that you are acting as a spokesperson for Microsoft, which has more than ample resources to coach you in how to divert and confuse an argument to its own benefit. As demonstrated by this following example:

    Gray Knowlton further writes: "Not only do we disagree with the words, Open XML already has many, many implmenetations (which include IBM, Google, Novell, Apple and others) to show for it."

    It is deceptive to imply that those companies rely on the OSP. They have patent cross-licenses with Microsoft.

    So much for sincerity.

  30. Rob Brown says:

    Hi Gray,

    Thanks for the reply, although the insinuation that I’m parroting someone else’s opinion is patronising and offensive. I won’t lose any sleep over it though, we all know how inaccurate text messages are in conveying real meaning.

    I disagree with your statement "this is not a game of semantics". This standardisation process has so utterly disenfranchised all but the primary players, that commenting on blogs is about the only way interested consumers like me can have any input at all. You have missed (or deliberately twisted) the point of my post, and we could trade "clarifications" all day if either of us had the stomach for it.

    FYI, I do write software interacting with office productivity applications, but it’s tangential to my work as an embedded developer and will never be released publicly. For example, I write bridging code to interface between OpenOffice Calc/ODF and Scilab, which gives me Scilab’s scientific number-crunching ability combined with Calc’s user interface and pretty pictures. XML wins for me! But you’ll never convince me that having two competing office formats is in my best interests, especially when OOXML is shrouded in what I perceive as Microsoft’s corporate abuse.

  31. Rob Brown says:

    Gray,

    Perhaps it’s just a Kiwi trait to be suspicious of convicted anti-competitive monopolists, and to be offended by insinuations of plagiarism when offering one’s own opinion. I’ll take your recommendations on board, and deeply consider whether either of those characteristics is in need of adjustment.

  32. Bruce Perens says:

    Gray Knowlton writes: "as far as I know, we have no interop agreement with Google. I could be wrong, but I’ve never seen one."

    You are not seriously proposing that Google is at any risk of patent aggression from Microsoft. Agreements under NDA may exist, and even if they don’t, Google has a sufficient arsenal of legal talent, capital, and blocking patents on Microsoft’s own activities that they can enforce a detente, or worse, upon Microsoft.

    Your statement, again, was: "The arcile says that "Microsoft does not provide protection for Open XML with the OSP." Not only do we disagree with the words, Open XML already has many, many implmenetations (which include IBM, Google, Novell, Apple and others) to show for it."

    It is deceptive to imply that any of those folks – especially Google – have to rely on the OSP.

  33. Peter da Silva says:

    “As far as recounting the entire history of Microsoft legal activity, again, it’s not really something that is helpful.”

    If you want to convince people that the leopard has changed his shorts, you have to show people what the shorts look like on the leopard. Microsoft has a higher barrier to acceptance than IBM or Sun because Microsoft has a history of behaving worse than IBM and Sun. To overcome that barrier, Microsoft may have to make stronger commitments, show conclusively that they are stronger, and show that they can stand behind them. This may be unfair to you, personally, and to the people you’re working with, but you can’t just pretend the leopard isn’t in the room.

  34. J-F Bilodeau says:

    I’m curious to know why you say that the GPL is open to interpretation. If that’s the case, wouldn’t the OSP be the same? It sounds like a think layer of FUD to me.

    The careful choice of language sounds to me like another Microsoft attempt to embrace, extend and extinguish.

    I’m sorry, you failed to convince me of the sincerity of Microsoft.

  35. Mark says:

    What is the test applied to become an ISO standard?

    Is it compliance with ISO policies, or something other than that?

    Seems that SFLC and others are trying to propose a new and different test for ISO adoption, or to divert attention away from the real test.  

    At least as far as this discussion revolves around the ISO consideration of Open XML, it is quite clear that the ISO rules have been met.

    Even if all we want to do is "butt and bray" against everything about Open XML and Microsoft in general, the IPR points re Open XML  seem a fruitless path at this stage.  It is too late to seek a change in the rules in this process, and everyone is in favor of playing by the rules.  

    And based on its proposed test, SFLC presumably objects to quite a number of existing ISO standards.  Considering how far the OSP does go, Open XML should be the very least of SFLC’s worries.

  36. Bruce Perens says:

    Gray Knowlton wrote: "Well, Bruce, I don’t think we have a "big rich companies" section of the OSP, I think it applies equally to big and small companies."

    Please drop the act. There is no need for a "Big Rich Companies" section of the OSP, because big rich companies get a lot more rights to Microsoft’s patents than the OSP would grant. They don’t enter into "interop" agreemnts with Microsoft. They get cross-licenses that give them patent rights for essentially any application, not just interoperability.

  37. Anonymous Coward says:

    "Does it make sense for us to propose a standard then prevent people from implementing it? — I don’t think so."

    In a world where governments and others are starting to demand standardized document formats, does it make sense for someone with near-monopoly situation to propose a standard then prevent competitors from implementing it, maintaining status quo with the cash cow?

    Oh, wait..

  38. Keenan Ross says:

    To be trusted by the open source community, Microsoft must avoid even the "perception of impropriety".  This means that the OSP must be written in a way that the SFLC will conclude that it is "fully compatible with free and open source software licensing". Regardless of the merit of their arguments, anything less than a full endorsement by the SFLC will raise concern.

  39. Ray B. says:

    Gray Knowlton said

    "As far as recounting the entire history of Microsoft legal activity, again, it’s not really something that is helpful."

    I disagree, if somebody has a history of stabbing "people" in the back, I don’t think I would be to quick to turn My back on then, just because they said "Trust Me".

  40. Matt says:

    Gray,

       You’re right, OOXML shouldn’t be treated any differently to ODF.

    OOXML should be submitted to ISO directly, and undergo full scrutiny from all the member bodies and organizations, as ODF did.

    It should not be fast tracked in the back way by a rubber stamp committee that has been seen to be changing the rules for fast track process just before the spec was submitted.

    If you want us to trust you, stop acting like you’ve got something to hide.

  41. Theo says:

    Greg, you’re either really bad at pretending to miss Bruce’s point, or you’re a lot slower than someone in your position should be.

    Bruce’s point is:

    A small developer has *only* the OSP to rely on.

    A large developer (like Google for example) has the OSP, and patent/etc. cross-licensing agreements to rely on.

    Therefore, if both the large developer and the small developer run into a trouble-spot where the OSP doesn’t properly protect their interests, the large developer is in a better position because it has *other* agreements to protect their interests *besides* the OSP.

  42. Ray B. says:

    Gray Knowlton said:

    "It’s not "Trust me." Regarding the ISO process, ISO is the organization declaring that Open XML passed their bar for IP requirements."

    I don’t see Open XML passing the bar, I see it as Microsoft attempting to buy the bar(ECMA), because if Open XML fails fast track, Microsoft risks there cash cow to growing government ISO document requirements.

    They can’t risk ODF ISO/IEC 26300 (approved 2 Years ago ) get any more support!

    You keep asking for examples of Microsoft taking action against somebody’s Open XML implementation, I say its far to Early, they are still working on the "Embrace".

    Microsoft won’t "Exterminate" until Open XML is an "approved" standard !

    This is business as usual for Microsoft,"Embrace, extend, and exterminate"

    Embrace XML on there terms (Open XML not ODF ISO/IEC 26300 )

    Keep adding "custom" Extensions (With the all powerful "IP")

    Exterminate any body who uses there precious "IP"

    it won’t be tomorrow, or next week …

    Looking at Microsoft’s history, and current actions.

    They don’t look like a company committed to interoperability/coexistence!

  43. Ernest Rogers says:

    Hi Gray;

    Basically, what is the problem with Microsoft saying explicitly that "Microsoft will not sue anyone for implementing DIS 29500, and any future iteration thereof". End of statement. No conditional clauses. It doesn’t matter if no one else has done it before. No fear from Microsoft for anyone as long as it "IS" a sincere attempt at implementing a standard as best as one can interpret it?

  44. Ernest Rogers says:

    Gray;

    Nothing is wrong with that, but when the perception is that Microsoft controls, or exert sufficient influence to change the rule of the specification at it’s whim, Microsoft needs to make some very clear statements to "ANYONE" attempting to implementing this specification.

  45. Ernest Rogers says:

    By the way;

    The basic point I’m making is that, a garage programmer should not have to fear Microsoft for implementing his interpretation of the standard, or how his implementation is used, commercial or otherwise.

  46. Jitz says:

    I have read all the comments, and sadly I am not sold on microsoft’s goodwill.

    Actions speak louder than words

    ( todate microsoft’s actions show their words have little value)

    Who holds the smoking gun

    ( It sits squarely on Microsofts’s shoulders )

    Only "honest" actions from microsoft and "time" will remedy their less than stellar reputation. Not one little OSP licence

    Microsoft is a forest ( a dirty one at that ), and now you are saying, "Hey, we have this really nice tree". Well, when the rest of the forest looks like and behaves like the nice tree then microsoft starts to get some trust. Maybe your nice tree needs to be nicer. But….

    Come On!!. Who are you trying to hoodwink, really???

    Microsoft is all about money, and protecting it’s monopoly. Now it’s fighting pretty hard to maintain it. Thing’s are just coming at it from all angles but at the end of the day Microsoft as a company with a duty to shareholders has to do one thing, maintain the stock value. And whatever game in towns lets them do that, then guess what. that is the game.

    Today its play nice and interop, tomorrow it’s whatever works.

    When will I trust Microsoft??

     -When it’s down to 30-40% market share

     -When it is inter-operating with Linux, Mac and others

     -When it does not rule the day, but is ruled by the day.

     -Then we can talk about OSP and the openess of OSP, not before

    The OSP is just a pebble on a beach. Long way to go Microsoft.

    You know, in this case the devil is not in the details of what the OSP is or is not. The devil is in the details of what microsoft is or is not.

    Cheers

  47. Scott B says:

    I just came across this forum and the discussion in it.  Some of the commentary made me laugh, but won no sympathy toward Microsoft’s position.

    Questions at hand:

     Is the OSP good enough for everyone?

    A- Obviously not.  The fact that GPL protection, which has been requested repeatedly for years is considered ‘Not our problem’ tells me that it IS a problem for everyone else.  You may have a lawyer on standby to make decisions like that, but I don’t.  A simple ‘There are no known issues with GPL coverage’ would have gone a lot further than this no comment approach that obviously keeps MS with the option to sue later.

     Is the OOXML spec good for businesses?

    A- For a Microsoft partner, maybe.  Until Microsoft decides to eat that line of business. (As the company has done repeatedly in the past.)  All the companies they decided not to eat are then shit out of luck.  For a non-partner of Microsoft?  It’s less useful than the information on the binaries.  The binaries take up less space and there already existed a host of libraries that had already reverse-engineered 90% of it.

    Is it a good specification?

    A- My opinion.  No.  I write specs professionally for a living.  My company is a Microsoft Partner.  I view the spec as confusing, obtuse, error-ridden, x86-centric, incomplete, and redundant.  Microsoft sat on the board of ODF for _years_ without offering any help on the minor items ODF didn’t provide that they wanted.  Now that governments start pressing for permanent standards on document storage, MS throws out this half-baked item and expects a reward for good behavior.  Maybe somebody on the board of directors at our company likes it, but the technical folks having to add more work are less than happy about this beast.

    If they had to go with XML, couldn’t they at least have allowed standard XML with attributes and the like instead of x86 specific, binary incompatible, past-version deprecating, standard-avoiding, crash on normal XML.. … mess… that they have offered for consumption?  Oh.. but wait, I’m sure the BRM fixed that in the week given.  I’m sure the pretty version will show up any day now.

  48. Ernest Rogers says:

    Gray;

    It’s currently 9:00 PM PST and I have Guest.

    But as part of what Scott said (I think), any implementation of this proposed standard, should not even hint that there might be a problem with a GPL implementation, from Microsoft’s point of view.

    Good night

  49. Jeffrey says:

    [quote]The reason that GPL developers find it legally possible to work with Sun and IBM is that both companies have contributed directly to the development of GPL and LGPL code implementing the same standards that their covenants cover.[/quote]

    Which is totally irrelevant.

    The GPL is a first party license that hands down rights from contributors to a software product.

    The OSP and CNS are third party licensing method that give additional rights from parties that have not contributed to the software.

    GPL nor any other OSS license cannot pass on third party rights or any other rights that are not controlled by the first party contributors therefore GPL or any other OSS cannot sublicense the CNS promise by IBM, Sun, MS or the OSP by MS.

    And why does the SFLC specifically mention that it object to patent rights not being availiable for future in the OSP but does not mention this in their analysis of the ODF licensing where the IBM CNS is limited in the exact way that the OSP does and the CNS by SUN is limited in a much more vague way by versions "in which development Sun participates to the point of incurring an obligation".

  50. Jeffrey says:

    @Scott B

    [quote]Microsoft sat on the board of ODF for _years_ without offering any help on the minor items ODF didn’t provide that they wanted.[/quote]

    That is a weird statement. Microsoft has never contributed to ODF or participated in any committee dealing directly with ODF nor can I find any message in the TC archives that MS has ever been asked to help with ongoing development in the OASIS TC.

    Why are you making up stuff that has no factual basis.

  51. Fiery Spirited says:

    >Well, Bruce, I don’t think we have a "big rich >companies" section of the OSP, I think it applies >equally to big and small companies.

    I do totally agree. The OSP give equal non existant protection to small and large companies. Like already told the large companies have protection from other sources so it is a minor problem for them.

    You say that Microsoft will extend the OSP to the updated dis29500…fairly given, isn’t it? Problem is just that Microsoft have not commited to acutally implement dis29500 or the future versions of that standard so the OSP covering dis29500 is pointless.

    What is needed is:

    *Microsoft must promise to implement the _full_ dis29500, including upcoming versions, if they should be trusted.

    *Microsoft must extend the patent promise to exclude the right to sell the patents to patent trolls. As written only Microsoft itself is bound to not use the patents, and that is obviously not enough.

    *Microsoft must craft a OSP so that the protection apply to the GPL and open source developers even if these are used for commercial purposes.

    *Microsoft must publish all patents they have that concern dis29500. This includes the many patents that Microsoft have requested after OOXML approval process begun.

    *Microsoft/Ecma should remove the nonsense requirement that syntactic compability is enough to claim conformance.

    The past behavior of Microsoft is not the reason people don’t trust Microsoft about OOXML…it is the current behavior that is the problem. Reject dis29500 is the only sane conclusion….

    Unless Microsoft take the above actions the following results are very likely:

    *The ISO label will be used by Microsoft to fool people into using Office since it "supports" an ISO standard

    *Office 2007 will never faithfully implement dis29500 so all files produced will lack interoperability with producers that don’t relie on the Microsoft DLL files.

    *Microsoft will sell the patents to patent trolls to attack competitors.

    *Microsoft will use all application-defined points and undefined points in the standard to break real compability.

  52. Philip F says:

    Hmmm.  The SFLC opinion was written by a lawyer (or two) – an expert in his field. You are… a Group Product Manager for Microsoft?

    Now, who’s views would I trust on matters of law?

    Enough said.

    Philip

  53. Jesper Lund Stocholm says:

    Bruce,

    > IBM’s covenant does not have any language excluding

    > later versions. Only the Microsoft covenant has

    > that.

    If you look at the IBM patent pledge guidance at http://www-03.ibm.com/linux/opensource/ispfaq.shtml you will find the text:

    "How will IBM address additional specifications or new versions of specifications on the list?

    IBM will evaluate new versions or additional specifications for inclusion based on their consistency with the objectives of this pledge which is to support widespread adoption of open specifications that enable software interoperability for our customers, and may, from time to time, make additional pledges."

    This is basically a word-by-word replica of the intent of the text in Microsoft’s OSP.

    > Sun’s covenant explicitly grants rights to

    > later versions.

    No it doesn’t. If you insist on nit-picking the wording you must include the part of Sun’s CNS where it says:

    … "or of any subsequent version thereof ("OpenDocument Implementation") in which development Sun participates to the point of incurring an obligation, as defined by the rules of OASIS, to grant (or commit to grant) patent licenses or make equivalent non-assertion covenants."

    Notice the part "in which development Sun participates".

  54. Pete Austin says:

    Re: The FAQ states that Microsoft is not in a position to give blanket advice about the GPL to others.

    As regards the OSP, Microsoft can give such advice, and is the only company able to do so. It could e.g. add something like the following to the OSP: "The OSP is compatable with GPL 3.0, any term which conflicts with GPL 3.0 is void, and all additional rights necessary to comply with GPL 3.0 are hereby granted".

    If as you say the OSP is already compatible with the GPL then this would cost Microsoft literally nothing, it would merely confirm what is already the case. And it would end this controversy at a stroke.

    Can you think of an ethical reason why Microsoft don’t just make this assurance?

  55. tz says:

    Depends on your point of view.

    The GPL is expansive, well vetted by the industry in a process that would shame ISO even before the current problems (What about those newly joined nations that haven’t voted on any other standard?), and it is a legal, not technical document.

    The OSP came out of your EULA department which often includes clauses like "By using this software you agree not to say anything bad about it".

    The GPL, for it’s length is much simpler than the OSP.  The length is to prevent loopholes where things can be further restricted.  The OSP is just the opposite.  It tries to navigate the vertex of the fence between letting people actually do something with OOXML without a threat, and making sure Microsoft can still play patent and other IP games with Office if one of these implementations goes too far.

    But I’ll call your bluff – Let Microsoft create a challenge for a GPL version of OOXML, and when it is complete give its full blessing for any derivatives.  You won’t do it because you want to keep the FUD.  "Linux violates 245 patents" but you won’t say which or where.  You will probably say GPLOOXML violates a gazillion patents, we won’t say which one, but we promise not to sue as long as you don’t actually do anything the GPL gives you the right to do.

    Or simply simplify the OSP.  Be plain in grating the rights and protections.  If it sounds like it was written by Mephistopheles for Faust, people will assume something is wrong with it.  GPL – clauses explicitly open and preventing lock-in.  OSP – clauses carefully and grudgingly allowing the narrowest set of rights possible to get something where I can type and save "Hello World".

    There is a difference between being generous and merely less miserly.  For that matter there is a difference between being prudent and merely less miserly.  Open doesn’t mean mostly closed, mostly encumbered, mostly restricted.

    The difference is clear to the SFLC.  And probably to you where you assume "Microsoft has done enough".  Like with the EU and the other trials, some ongoing, Microsoft sees what it can get away with.  And even spends far too much moral capital fighting when it is wrong.  That is Microsoft Legal.  Go ahead and keep fighting, exposing more memos showing your real intent – you will get a Pyrric victory if any.  This is the context I have to look at the OSP.

    Tell me why I should not assume the OSP is just another one of these minimal attempts at appearing to be compliant while changing nothing?  Will we have to wait until someone gets sued or does sue in discovery to discover it is another sham like the certified "Vista Ready" computers that can barely do the home version?

    Why should I believe the OSP any more than the "Vista Ready" certification?

  56. Tom Marchant says:

    The FAQ items you quote say, "you may want to consult with your legal counsel" and "we can’t give anyone a legal opinion about how our language relates to the GPL".

    The SFLC *is* my legal counsel.  Your own advice is that I should rely upon what they have to say.

  57. Ray B. says:

    Gray Knowlton said:

    "Watch out for the black helicopters Ray…

    XML support in Office arrived 8 years ago (which means code was written 10 years ago). And while you’re out looking for for the Open XML actions we’re taking, you should dig up the history of binary format specification licensing we weren’t doing since 2003, and dig up that long list of actions we’ve taken in addressing the thousands of applications that read and write the binary formats."

    RE black helicopter’s

    In no particular order

    Netscape, Dr-Dos, Sun Java,"Halloween Documents", OS2 to name a few.

    RE XML support

    since XML is simply text? Just because it was "supported", doesn’t mean too much, without some sort of "control file" opening it with MS office would be the same as opening it with edit.exe or notepade.exe.

    This whole issue is all about controlling the "control file" not whether or not MS office can parse an XML file or not!

    RE a history of binary formats

    The "binary" was there protection ( changing with every new release ).

    With service pack 3 for MS Office 2003 you can’t open the older binary files, rather than fix the "parser" they stop support for older versions, so anybody who had files from say "Word 6", After "upgrading" you can’t open them!

    Unless you download Open Office, they still seem to be able to open them

    As for going after some one with a PAID license that wouldn’t be to smart.

    I believe open source is using legally reverse engineered specifications (done well before Microsoft "promised" not to hurt you if you use there specifications ).

  58. Winter says:

    Gray Knowlton wrote:

    "The FAQ cited just states what everyone knows and acknowledges, the GPL is a copyright license that is drafted in a way that leaves many issues (not just those related to patent rights) open to many interpretations. Any particular user or implementer should read the GPL carefully and make their own judgment about what it means and requires in accordance with their own circumstances. The FAQ states that Microsoft is not in a position to give blanket advice about the GPL to others."

    Let me se whether I understand this. MS promises NOT to sue people who implement some aspects of DIS29500.

    (Incidently, they refuse to give a list of covered elements. The DIS29500 is a closed set of elements and features. So those covered by the OSP or not can be enumerated, as can the patents covering them. There is absolutely no excuse NOT to list them.)

    Then MS say they do NOT know whether they will sue people who implement these aspects of DIS29500 and distribute them under the GNU GPL.

    This is a promise that MS’ makes. So MS should know whom they want to sue and whom they don’t want to sue.

    If MS doesn’t know whom they want to sue, how should I know? They wrote the promise, not I or the FSF.

    Winter

  59. Gerald Britton says:

    Gray,

    For many, it boils down to credibility.  The recent shenanigans at the BRM destroyed what little credibility ECMA had left, did essentially the same to Microsoft and seriously damaged ISO credibility in the process.

    Also, to the average informed reader, Bruce Perens credibility is unimpeached, whilst yours is simply unestablished.

    The OSP is incredible — I mean in the literal sense of the word, not the colloquial.  A developer would be a fool to build anything that depended upon the OSP for protection.

  60. Ian Easson says:

    The flood of highly negative comments to this particular blog posting from a few people boils down to this:

    Despite explicit and clear assurances from Microsoft, there are *some* people who will never trust it to do what it promises.

    You know what?  It doesn’t matter in the least what these particular people think.

    What does matter is that the vast majority of developers who wish or need to develop solutions that utilize OOXML have no such issues.  

    The proof of this is the 300 or so OOXML applications that have been developed in the last couple of years.  And, with the announcement today of the roadmap for the release of the OOXML SDK, that number can be expected to increase very significantly in the next few years.

    The recent “analysis” by SFLC and the negative comments to this blog posting should be seen for what they really are: a last-ditch desperate attempt to create confusion and negativism in the weeks leading up to the approval of DIS 29500 (OOXML) by the ISO, in the hope that a few NBs will thereby vote against acceptance.

  61. J-F Bilodeau says:

    "The flood of highly negative comments to this particular blog posting from a few people boils down to this: Despite explicit and clear assurances from Microsoft, there are *some* people who will never trust it to do what it promises."

    The clear assurance is not clear. Otherwise, why would be be having this discussion?

    "It doesn’t matter in the least what these particular people think."

    And you wonder why *some* people don’t feel comfortable with Microsoft if that’s their attitude?

    "What does matter is that the vast majority of developers who wish or need to develop solutions that utilize OOXML have no such issues."

    And how many ODF developers have issues with ODF? Why does Microsoft _refuse_ to support ODF in Microsoft Office, when then still support stuff like RTF? It doesn’t sound like a technical issue for me, but a competitive issue.

    "The proof of this is the 300 or so OOXML applications that have been developed in the last couple of years.  And, with the announcement today of the roadmap for the release of the OOXML SDK, that number can be expected to increase very significantly in the next few years."

    And how many of those are direct competitors to Microsoft Office? It doesn’t sound to me like it’s opening up the playing field much to me — especially is Microsoft is the one nudging Novell to write the OOXML parser for OOo.

    "The recent "analysis" by SFLC and the negative comments to this blog posting should be seen for what they really are: a last-ditch desperate attempt to create confusion and negativism in the weeks leading up to the approval of DIS 29500 (OOXML) by the ISO, in the hope that a few NBs will thereby vote against acceptance."

    Funny, I was thinking the same about Microsoft — A last-ditch desperate attempt to create confusion and negativism in the weeks leading up to the approval of DIS 29500 (OOXML) by the ISO in the hope that a few NBs will thereby vote with acceptance.

  62. Larry says:

    I have difficulty understanding why XML is considered sacred when it comes to implementation of a standard.  XML is just a wrapper for data.  It does not define the data, that is left as an exercise for the user.  

    XML is just the bucket.  The water that goes in the bucket is what is wanted and needed.

    Just because MicroSoft took some data and wrapped an XML schema around it does not mean that the data is any more accessible than it was before.  If you do not have the decoder ring for the data then it is still locked.  Including binary blobs in an XML wrapper does not make the binary data any more accessible than if it was just written directly to a file.

    You should stop with the smoke and mirrors and realize that MicroSoft is not interested in competing on a fair basis.  It is just like when Bill Gates took Basic and ported it to the Altair and then claimed that anybody that used it without paying him was a thief.  Who was the thief?

  63. Jason Matusow says:

    Wow – this looks like the comments thread on some of my postings. 🙂 Some thoughts for the group:

    1) No matter what your opinion of the OSP is, the fact is that the JTC 1 directives call for specifications to meet RAND or RAND with zero royalty terms. DIS 29500 does this – so any assertion that there is an IPR concern that should prevent the approval of the DIS is simply wrong. The JTC 1 directives are meant to be applied uniformly and fairly. Also, the same RAND with royalty free terms check box was applied to ODF. The entire argument is a FUD mechanism to affect the outcome of the vote.

    2) The OSP, Suns CNS, and IBMs CNS are all very similar instruments. None are licenses, all are effectively "promises," and all were designed to provide a bridge for free software developers to be more comfortable in implementing a given specification within the context of any of the GPLs. The simple fact remains that there is a fundamental philosophical difference regarding software patents and that choice puts the Free Software licenses at odds with the vast majority of existing software standardization. Does it matter? Only if a rights holder raises a complaint. In the case of Open XML – Microsoft has promised (irrevocably, and in a legally binding fashion) not to do so.

    3) The whole argument about future versions is completely bogus. The Sun CNS and IBM CNS do the exact same thing. Lawyers are funny about trying to predict the future. They tend to be focused on concrete things – like versions they know about. This is NOT unique to the Microsoft OSP and is another red herring argument.

    4) The amount of completely out of scope comments on this blog reflect the real nature of this discussion. Rational technical and factual arguments long ago stopped being the issue. Really too bad.

    Thanks,

    Jason Matusow

    Microsoft

    blogs.msdn.com/jasonmatusow