Legal Counsel Advises Against Accepting OOXML Pledge

ozmanjusri writes "A legal analysis of Microsoft's Open Specification Promise (OSP), which was purportedly written to give developers protection from patent risk, says the promise should not be trusted. According to the Software Freedom Law Center, 'While technically an irrevocable promise, in practice the OSP is good only for today.' This is on the back of a chaotic ISO meeting to resolve outstanding specification problems. The session was described by Tim Bray as 'Complete, utter, unadulterated bulls**t. This was horrible, egregious, process abuse and ISO should hang their heads in shame for allowing it to happen.' The advice would seem to throw more doubt on OOXML's suitability as an international document standard. Microsoft responded to these assertions stating that they've already taken steps to answer these concerns"

Comments

Microsoft's Concerns.

[twitter]

To perpetuate their late 80's file and OS monopolies. There is nothing subtle or difficult to understand about this.

Re:Microsoft's Concerns.

[SgtChaireBourne]

There is no doubt on OOXML. It's bad by pretty much every metric one can come up with. While the Software Freedom Law Center contribution is very valuable, the summary reduces this value and snubs ISO at the same time: the decision and process is not up to MS here, it is up to ISO. ISO is not in the business of creating standards. It has the purpose of evaluating finished specifications, which OOXML is clearly not.

There's not a single implementation of OOXML in the wild. There are variations and partial implementations, but since the specification itself is neither complete nor finished, it's not ready for ISO.

All MS is doing here is wasting time and money. When MS gets serious about interoperability, it will adopt the OpenDocument Format.

Re:Microsoft's Concerns.

[inTheLoo]

It's really the US branch of ISO that's gotten snubbed and for good reason. Microsoft stacked the committee and the US ISO group let them get away with it, so the US ISO group's opinion is that OOXML is AOK. Besides the technical issues raised, there's that little fundamental issue of having two standards that do exactly the same thing. Microsoft's manipulation of the US group is a tremendous shame and ISO needs to protect it's reputation by doing something about it.

While it may be obvious that OOXML is incomplete, Microsoft will tell you otherwise. It's what their new Office suite uses by default. Everyone with any sense turns it off but it's "in the wild".

Re:Microsoft's Concerns.

[MightyMartian]

Let it (or rather the partial implementation found in Office 2007) run in the wild. It's just another proprietary document format.

The issue here is that the ISO seems poised to declare an unimplementable, patent-poisoned format the thumb's up, so that Microsoft reps and resellers can go to various governments, institutions and corporations currently looking to mandate open document-only formats and say "We've got an ISO ceritified format here in OOXML, so you don't have to use that nasty ODF".

I wouldn't care if there were a hundred open document formats, as long as anyone, using just the specs in a cold room could implement software that could open the file. We all know that that is impossible for OOXML, because it's incredibly complex, invokes a number of proprietary specs which a guy in a cold room couldn't access. So such a guy would be faced with precisely what the OO.org and KOffice teams have been faced with, reverse engineering to get it to work.

I'm sure Microsoft will trot out all its spokespersons, both open (like a guy from the Office team) or in secret (like any number of shills you'll see here). If Microsoft was truly interested in an open spec it would immediately instruct the ISO that it's removing OOXML until it's simplified and has no links to proprietary formats, and then would release it under an accepted open license (and not one of its crapola licenses).

Re:Microsoft's Concerns.

[99BottlesOfBeerInMyF]

I wouldn't care if there were a hundred open document formats, as long as anyone, using just the specs in a cold room could implement software that could open the file.

You make some good points and I agree with most of them. As for multiple standards, I agree in principal, but in this particular instance I think mitigating factors apply. Multiple standards are fine, but when a criminal monopolist completely ignores ongoing development of an open standard and intentionally eschews implementing that standard and waits until that real standard is approved and implemented by potential competitors before attempting to get approval for a different, new standard... well I think that constitutes abuse of their monopoly position to derail the existing standard. Multiple standards are fine, in general, but when dealing with a market where one company is a monopoly, waiting until competitors all have working versions of a different standard before introducing one of their own compromises the free market even if the standard for OOXML itself was legitimately open.

Re:Microsoft's Concerns.

[Zeinfeld]

Err, 'lawyers object', what lawyers? Would these be a bunch of academics who have come across the documents and made an independent judgment? Of course not, this is a paper by a bunch of folk who were already opposed and as such its a very partisan analysis.

As for the alleged effect on the ISO process, its actually irrelevant. ISO certainly accepts encumbered standards all the time. They might have a disclosure policy but even that isn't certain because of the role ISO plays. All ISO does is to endorse the output of other standards bodies, usually national standards bodies but also ITU, IEEE, ANSI and in theory IETF (this has never happened but could happen if the IETF was to forward its standards to ISO).

The terms of the open promise are irrelevant because there is no requirement for Microsoft to offer any IPR terms beyond those required by ETSI which are RAND. Microsoft has clearly met this requirement.

Nor is the fact that this is a 20 year old format a disqualification. Standards are what is used, old standards are probably better candidates for standard status than new ones.

Re:Microsoft's Concerns.

[Stephen Samuel]

1. SFLC is real lawyers. Eben Moglen is a real and practicing lawyer... Yeah, he moonlights as a law professor, he also spent time helping the the most respected judge on the Supreme Court of the USA write the court's decisions000000000000. I'd say that he's a far better lawyer than 90% of the hacks that you'll find in the yellow pages.
2. What MS is doing to the ISO process is a problem in, and of itself. Think of turning the SCOTUS into a profit-driven enterprise, and you'll get a sense of what they're doing. They're turning what had been (until last year) a respected and reasonably neutral technical committee and turning it into a corporate lapdog. Unless what they do is reversed, people will no longer have strong trust of what comes out of the ISO. What the ISO fast-track process in designed to do is, is vet standards that comes from other bodies and only pass them if they're up to ISO standards. The normal track is designed to either generate a standard, or work on a almost-OK standard until it's up to ISO standards. To the extent to which MSDOC (aka OOXML) could be considered an almost-OK standard, it should have been put into the standard track, not fast-tracked far before it's time.
3. Microsoft has been pushing MSDOC by saying that it's an open standard -- that's one of their selling points. If the open promise is garbage, then that's like selling a 'car' with balsa-wood wheels. It doesn't do what it looks like it's designed to do... It won't even get you safely home.
4. It's not a 20 year old format. It's a 20 year old format in an XML wrapper being touted as XML. Once again, it doesn't do what it looks like (and has been advertised as) it was designed to do -- which is provide the benefits of XML. The binary blobs inside the format make it XML-opaque.
   It's like putting a layer of mud in between two panes of glass, and selling the result as a 'transparent solution'. The glass is transparent, but the mud layer makes it useless as a window). People who buy into the 'transparent' PR will be hosed, but they won't know that they're hosed until the so-called transparent solution is installed.

Troll?

irrelevant?

[apodyopsis]

even if OOXML is approved (and lets face it deep wallet large multinationals have a habit of winning these things) its name is MUD everywhere. I really cannot see anybody using it (has MS made it their standard yet?) and the "de facto" standard has a good chance of being ODF. Sooner or later MS will have to accept that.

As for the "agreement" any decisions or choices offered by any corporation will always be biased and in their interests instead of the users.

Re:irrelevant?

[99BottlesOfBeerInMyF]

even if OOXML is approved (and lets face it deep wallet large multinationals have a habit of winning these things) its name is MUD everywhere. I really cannot see anybody using it (has MS made it their standard yet?) and the "de facto" standard has a good chance of being ODF. Sooner or later MS will have to accept that.

I disagree. I think your perspective is skewed, being a Slashdot reader you have heard a lot about this issue. You also probably have some understanding of this issue and the reasons why a truly free and open standard is beneficial to users and non-monopolist developers.

The average person (politician or government bureaucrat or corporate purchasing agent) has no understanding of what open standards are or why they are beneficial. Simply naming something Open Office XML is enough to pass muster with most people who have a vague notion that "open standard" is somehow vaguely associated with "good." Making ODF the de facto standard in such an environment is by no means a done deal. For an example of how this sort of thing works, look at MS's influence in various government purchasing decisions for office software. Or, look at the Library of Congress, who MS just paid to standardize on using the proprietary standard "silverlight" instead of the open standard AJAX. They don't know or care about the difference, especially in the face of a fairly small donation from MS. They are now locked into an MS proprietary format and MS only servers for the future unless they want to spend a large sum trying to break free. And what will happen if 5 years down the road MS drops some browsers or OS's or combinations from their supported list (as they have done with IE and Active X for the Mac, or with their proprietary macros on the Mac version of MS Office)?

Just because most people on Slashdot know that OOXML is not a real open standard does not mean the average decision maker does, or if they do, if they care about what happens down the road compared to the public perception of what will happen down the road.

Re:Irrevocable is irrevocable.

[Bruce Perens]

The reason it's really not irrevocable is that it states in writing that future versions of anything under the promise are not automaticaly under the promise. So, if they add a feature and you were interoperable before, you may not have the right to be interoperable any longer. It's the usual embrance-and-enhance stuff we've seen from Microsoft.

So this article is saying that...

[Mongoose Disciple]

Some software freedom people don't think Microsoft is going far enough with guarantees of openness and freedom.

How was this news, again?

'Complete, utter, unadulterated bulls**t.

[sm62704]

He actually said "bullsnot"? Since when is "snot" a dirty word? Come to think if it, I don't think I've ever heard the word "snot" on TV so maybe it is.

And not only did he misspell "udder", a bull's nose isn't its udder. Bulls don't even have udders! That would be as useless as tits on a bull!

Look, guys, this is an adult forum. People post pictures of goatse and tubgirl. I have journals about drunken whores here, for fuck's sake! If you can't say a word, just don't say it rather than using asterisks. It's a spade, damn it, not a "pointy shovel".

When someone says "That snot funny!" I laugh my ass off.

-mcgrew

Re:Talking ab out pledges...

[Shimmer]

The question is rather seemingly basic, but gets into the nuts and bolts of contract law.

Unlikely, since the GPL is a license, not a contract.

Re:The 'legal analysis' is flawed

[99BottlesOfBeerInMyF]

He make some pretty reasonable arguments, and calls the blatant bias against MS, when IBM and sun get a free pass even though their own version of the OSP has the same restrictions as MS.

I'd actually argue that it is reasonable to be biased against MS in this regard by anyone who has viewed their past conduct in this area. A whole lot of MS partners who implemented technologies with Microsoft have since been driven out of business by Microsoft. Further, Microsoft has a history of breaking both contract and criminal law and then tying up the courts with legal maneuvers until the issue is moot. Just look at the number of settlement MS has paid out, knowing that they have made more money than that by breaking a contract or law.

Some of the points made by Mr. Knowlton completely ignore the context of the situation. He claims that other companies have not provided any better promises with regard to ODF. This, for example, ignores that no one company is the sole originator or implementor of ODF and that none of the developers implementing it are monopolists who can leverage that monopoly to undermine the free market. If Sun deviated from open standards in a future version of ODF, nothing stops their customers from migrating to another solution from another vendor. If MS deviates from open standards in a future version of OOXML, they will become a de facto closed standard just as .doc is now since they do have undue influence on the office software and desktop OS markets. Anyone who forks OOXML in future (and by forks I mean uses a version that is not what MS is using, even if MS encumbers their version with patents or DRM or anything else) will be trying to compete fairly against a monopolist which is a losing proposition economically.

I'd say the majority of his arguments fall into the same category of fallacy as people here who argue that because Apple bundles Safari with OS X, MS should be able to bundle IE with Windows. It completely ignores that MS's OS constitutes a monopolized market, while Apple's OS X does not. Many people are ignorant on this topic and still others willfully ignore the difference in order to try to make a more persuasive (but flawed) assertion. Basically, the logical flaw being presented by Mr. knowlton is equivocation where someone might argue that everyone should be free to travel anywhere in the US they want, intentionally ignoring the fact that one person is a criminal on parole with a history of being a flight risk, whereas the other people to whom that person is being compared are not convicted criminals and have no reason to flee the courts.

Re:Talking ab out pledges...

[xouumalperxe]

Working Bruce's explanation into a practical example:

1. You publish code under the GPL.
2. People download it, use it, and their usage of the code is bound by the terms of the GPL.
3. You decide to change the license on the code. Since you're the copyright holder, nothing prevents you from doing that.
4. More people get your code from your distribution channel. These people are bound by the new license.
5. The people in point 2, however, agreed to the GPL, not your new license, and you explicitly gave them the right to alter and/or redistribute the code, so they're free to keep on sharing, coming up with a full fledged fork, probaly even selling it.