Developers Warned over OOXML Patent Risk

Tendraes brings us a story about legal experts who are warning that Microsoft's "covenant not to sue" over use of the OOXML specification is both ambiguous and untested. Developers wishing to make use of OOXML are unlikely to understand the complex legal language of the Open Specification Promise, and such a document - being neither a release nor a contract - has never been tested in court. From ZDNet Asia: "David Vaile, executive director of the Cyberspace Law and Policy Center at the University of New South Wales, said that Microsoft participants at a recent symposium on the issue found it challenging to explain how an ordinary person 'or even an ordinary lawyer' could easily determine which parts of the specification were covered. 'This lack of certainty would mean a cautious lawyer may be reluctant to advise any third party to rely on the promise without extensive and potentially quite expensive analysis, and even that could be inconclusive,' Vaile said. 'In turn, this could restrict its viability as a usable standard for less well-resourced users, including small developers and many public organizations.'"

Comments

Re:Right!

[Znork]

Without a doubt.

For anyone wanting an explanation of what the 'open specification promise' entails it's quite easy. It's a 'promise' from a corporation that barely complies with legal restraints, and only reluctantly operates within the limits of the law. So for what it's worth they might as well have published a blank page. Except then the non-lawyers would probably also conclude it was useless.

If they wanted to put their money where their mouth was they'd release any patents or other potential relevant IP into the public domain. The fact that that's not what they're doing indicates they have no intention of keeping that promise at all.

Re:Right!

[chunk08]

Yes, but its pointless to argue about that. MS will continue to try to lock people into their "standards", as they tried with HTML. Anything MS releases is just bait to try to get you entangled with something else.

Re:The same has been said of the GPL

[JaredOfEuropa]

If "it's not been tested in court" or "non-lawyers may not understand legalese" is all you've got, STFU.

The article says: "Ambiguous and untested". One thing you cannot say for the GPL is that it is ambiguous. While there may be some wriggle room for any lawyer in there, the document states in pretty clear terms what its intent it. Even if you do not understand legalese, you can still read and understand the GPL even if you can not fully appreciate what bits might not hold up in court. For that reason, if a company releases software under the GPL and then contests the consequences in court, any judge worth his salt will at least ask: "but then why did you release under the GPL in the first place?".

Microsoft's document on the other hand seems obfuscated on purpose, so that they can claim OOXML to be open and freely available to speed its adoption as a standard and alleviate fears of lock-in... then go to court and assert a different interpretation whenever their interests are sufficiently challenged. Given where Microsoft's interests lie, that's not a farfetched scenario.

Re:Right!

[Anonymous Coward]

Microsoft has not worked well with anyone. Even though they are a company based in the United States and Bill Gates and Steve Ballmer are U.S. citizens, they have a philosophy and mantra that goes against the principles of democracy, against the very foundations of their country that establish freedom and opportunities for ALL people. They simply want to take advantage of numbers, not grow a society in the freedoms many forefathers have fought for, but one that would continue to give them lots and lots of money. They are selfish, greedy, and self-serving. All they care about is getting people to use their software in order to continue their money stream. They don't care who they exclude, they don't have to care about the quality of their services, because they have a monopoly bought from the US-government through the avenues that allow special interests to take power away from the people and give it to the people who have a lot of money, no matter if that money was earned honestly, or not.

If the way Microsoft did business is very good, right, and moral, then why not teach this to our kids in our schools? Lacking in creativity? getting bad grades? Pay off your teacher. Buy your way through school through manipulation, power, and influence. Isn't that what Microsoft has done in the real world, except they have bought their way through the government enough to dispell public scrutiny? If we let Microsoft do this, are we not doing our kids a disservice because we are not teaching them the way the world is? Maybe the correct way is not democracy, but to make as much money as possible, any way you can, buying your way through life, and trampling over people who have less power than you?

If we would let Bill Gates and Steve Ballmer take over the world, I would have to say, your free speech would be removed, you would have to pay to post your words anywhere on the internet, and your words would of course be censored, and only speech that would be permitted would have to glorify Microsoft's cause as long as Bill and Steve could use it propaganda for their empire. They are no different than a totalitarian dictatorship trying to take over the world.

Your choice. Freedom or Bondage. I want freedom. In everything I do, I do those things that promote those ideals. In regards to computing, I use only Open Source software such as Linux, Open Office, and the rest of the gems produced as GNU/GPLed Free Open Source software which is the stuff Bill Gates and Steve Ballmer do not want anyone to use because it does not suit their purposes, like MS-Windows, Microsoft Office, or Internet Explorer (stuff that would lock anybody in to giving Bill Gates and Steve Ballmer a perpetual revenue stream without them having to earn it from me.)

Re:The same has been said of the GPL

[betterunixthanunix]

Mainly I think the problem people have is that Microsoft has not made a clear commitment to make this an open standard that anyone may implement in their software. Personally, I would expect no less from Microsoft, and wouldn't be surprised if their intention was to scare third party developers away from OOXML. This is the company that has fought tooth and nail to make sure that nobody ever uses third party software, after all, and now they are in a market that increasingly demands open standards and interoperability. What better way to kill two birds with one stone?

Re:Right!

[coppro]

For anyone wanting an explanation of what the 'open specification promise' entails it's quite easy. It's a 'promise' from a corporation that barely complies with legal restraints, and only reluctantly operates within the limits of the law. So for what it's worth they might as well have published a blank page. Except then the non-lawyers would probably also conclude it was useless. IANAL, but from reading that page, it's clear that any non-required parts of the standard are not covered under this Promise. In other words, if it's a part of an ISO standard, but not specifically required by said standard, they can sue you.. So in other words, they can standardize some extension, except mark it as non-necessary, and sue the heck out of anyone who tries to implement it (or more likely, sue the heck out of someone who has used it for years, such that they are no longer able to provide that feature and the victim's customers only have one place to turn).

Re:too many lawyers

[Zeinfeld]

So they turned something which could be interpreted in different ways in to something which has no meaning at all!

The objections are irrelevant in this case. If a party writes a contract, covenant, deed or other legal document that could be reasonably misinterpreted the ambiguity goes against the party that wrote it. That is why lawyers try to get the other side to draft contracts, its less risky.

Since we are talking patents here the enforceability of the patent is an issue. Given the nature of the problem I somewhat doubt that if the patents are enforceable against OOXML implementations that they would not cover ODF as well.

Microsoft's general approach to patents has been to 1) assert that company A infringes its patents, 2) sign a cross licensing deal with company A in which each company gets access to the patents held by the other 3) write company A a large check being the balance owed.

Of course it is quite possible that Microsoft might start demanding royalties at some point in the future but at this point they seem to care a lot more about not being sued than actually raising net revenue.