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

Re:Irrevocable is irrevocable.

[ODBOL]

A quick look at the SFLC's article (http://www.softwarefreedom.org/resources/2008/osp-gpl.html) makes this quite clear. OSP provides an irrevocable license to use a specification as it is written today. It makes no commitment whatsoever to license updates. A little bit more reading reveals that the irrevocably licensed uses of the current specification are also very limited.

So, it makes perfect sense, as stated by SFLC, that the license is irrevocable, but has no irrevocable value, since Microsoft has discretion to destroy the value of the licensed behavior. To quote directly:

While technically an irrevocable promise, in practice the OSP is good only for today.

This makes perfectly good sense. The promise is irrevocable. But it's "good"ness may easily be destroyed, by destroying the value of the promised license.

Caveat: I am reporting what I read in the SFLC's article. I have not checked their facts independently.

For those of us without lawyers on retainer...

[Qubit]

Let's sum up what's happened so far:

1. Microsoft publishes its "Open Specification Promise" -- a document which at first glance appears to give independent developers the freedom to implement OOXML without worrying about infringing on Microsoft's patents. (This document was undoubtedly drafted and/or reviewed by Microsoft's legal department)
   
2. The Software Freedom Law Center -- an organization staffed with lawyers very knowledgeable about IP law as it relates to software licensing -- publishes a paper stating that developers should not rely on Microsoft's OSP as patent indemnification as "[the OSP] provides no assurance to GPL developers" and "[it] is unsafe to rely upon the OSP for any free software implementation".
   
3. Gray Knowlton, a product manager for Microsoft Office, writes a rebuttal to the SFLC's paper on his blog.
   

Now Knowlton may have some good points in his rebuttal, but AFAIK he's not a lawyer. Until some Microsoft lawyer (or some other lawyer who is versed in software licensing and patent law) wants to step up and rebut the SFLC, I'm going to be inclined to believe that the OSP is not strong enough to protect me from lawsuits.

Microsoft has an absolutely abysmal record when it comes to interoperability and free and open access to their file formats. "Embrace-Extend-Extinguish" is their watchword. In March of 2005 I wrote to Microsoft's legal department and the Free Software Foundation, asking if the licensing of the Office 2003 XML Schemas (the ancestor of OOXML) were compatible with the GPL. Microsoft didn't even give me the courtesy of a reply. So even if, as Knowlton claims, "[Office] Open XML's terms are the same or more liberal than rival document standard OpenDocument," if there's any doubt in my mind as to whether I am legally protected when working with the OOXML format, why should I believe that Microsoft will act in good faith in the future when it never has in the past?