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)."