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Legal Counsel Advises Against Accepting OOXML Pledge

Posted by ryuzaki0 on from the so-hard-to-keep-these-things-straight-now dept.

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"

29 of 139 comments (clear)

  1. Lol, Microsoft Standards by Jax+Omen · · Score: 2, Informative

    Love the irony. And does it surprise ANYONE that lawyers are advising against trusting Microsoft's pledge?

  2. Microsoft's Concerns. by twitter · · Score: 2, Insightful

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

    --

    Friends don't help friends install M$ junk.

    1. Re:Microsoft's Concerns. by SgtChaireBourne · · Score: 5, Insightful

      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.

      --
      Beta is broken and the link to classic doesn't work. Stop wasting our time or there won't be anybody left here.
    2. Re:Microsoft's Concerns. by inTheLoo · · Score: 2, Insightful

      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".

      --
      No calls now, I'm ...
    3. Re:Microsoft's Concerns. by MightyMartian · · Score: 4, Insightful

      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).

      --
      The world's burning. Moped Jesus spotted on I50. Details at 11.
    4. Re:Microsoft's Concerns. by 99BottlesOfBeerInMyF · · Score: 4, Insightful

      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.

    5. Re:Microsoft's Concerns. by Zeinfeld · · Score: 2, Insightful
      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.

      --
      Looking for an Information Security student project suggestion?
      Try http://dotcrimeManifesto.com/
    6. Re:Microsoft's Concerns. by Stephen+Samuel · · Score: 2, Insightful
      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?
      --
      Free Software: Like love, it grows best when given away.
  3. Talking ab out pledges... by Creepy+Crawler · · Score: 2, Interesting

    Is there any legal indication that the GPL is revocable?

    When considering the case of a sole developer (for example, me), can I legally revoke the agreement if I wish to do further work proprietary?

    I've heard yes and no both.. They both logically cannot both be true.

    One could substitute any similar open-source freedom based licenses instead of the GPL.

    --
    1. Re:Talking ab out pledges... by postbigbang · · Score: 2, Informative

      You can't effectively revoke the GPL, once you've licensed your code using it--in any of its versions. The cat's out of the bag once you've pledged it. There is no mechanism to call it all back, once released in this way. You can fork your own code, go a different direction, but the basis of that code is GPL for better (and rarely worse).

      Re-write it? Easily done in most cases. The copyright nature of the release remains for the duration of the law in effect at the time the work was copyrighted (or lefted, or whatever).

      The arguments you've heard about revoking GPL don't hold water, I'm afraid.

      --
      ---- Teach Peace. It's Cheaper Than War.
    2. Re:Talking ab out pledges... by Bruce+Perens · · Score: 3, Informative
      "Yes" and "no" are not complete answers to this question, it's more complicated than that, so "yes" and "no" really can both be true for different parts of the question. A better answer is that you have all of the rights of a copyright holder to license your own code differently, but the promises you've already made are still binding on you. You can not tell the folks that you've given GPL code that they no longer have the rights that you gave them under the GPL. So, what you get is that the code you released will be out in the world under the GPL forever. You can also put a commercial license on that code and sell the license, and people who want to not have to comply with the GPL will buy that license. Any new code you make doesn't have to go under the GPL.

      Don't take other people's GPL modifications to your code and commercial license them! You aren't the copyright holder to that stuff. You have to pay them or otherwise get the rights from them before you can do that.

      Bruce

      --
      Bruce Perens.
    3. Re:Talking ab out pledges... by Creepy+Crawler · · Score: 4, Informative

      An interesting case is this article discussing exactly that.

      Eben Moglen was contacted (lawyer for FSF) and said that CPhack had that problem, and was never resolved.

      The best explanation is that explicit language would be needed to be added in the GPL and other type-like liceses to hold true. As it seems, as long as there is not intertwining copyright interests, redacting the GPL seems legal. Yuck.

      --
    4. Re:Talking ab out pledges... by maxume · · Score: 3, Informative

      If I own the copyright to some code and I release it under the GPL, I do not give up my right to release it under a different license. I can't stop other people from using and distributing the code I released under the GPL, but I can make a derivative and release it under any license I choose. I think this is mostly a clearer way of stating what you meant in "basis of that code is GPL".

      Another reply points out that there haven't been any court decisions about whether it can be withdrawn; the cphack case looks like a weak test of this to me, if the release wasn't agreed to by both copyright holders(are they joint holders?), then it isn't a question of the revocability of the GPL, but a question of whether the code was ever released under the GPL. I doubt any court will end up agreeing that someone can intentionally release work under something like the GPL and then later take it back, but that doesn't make the presence of GPL notice a magic provenance stick.

      --
      Nerd rage is the funniest rage.
    5. Re:Talking ab out pledges... by Shimmer · · Score: 3, Insightful

      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.

      --
      The most rabid believers in American Exceptionalism are the exact same people whose policies are destroying it.
    6. Re:Talking ab out pledges... by PitaBred · · Score: 2, Informative

      Doesn't work that way. Once you've accepted the code under a license (GPL), then it stays under the terms of that license. If you sold someone your house, and all of a sudden said "I actually didn't want to do that, give it back", do you think you'd have a snowball's chance in hell of getting it back without paying for it and negotiating with the people there as the owners? If you want to release future versions of the software under a different license, feel free to do so. But you can't retroactively relicense something.

      --
      My blog. Good stuff (when I remember to update it). Read it.
    7. Re:Talking ab out pledges... by xouumalperxe · · Score: 3, Insightful

      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.
  4. It's a trap! by und0 · · Score: 5, Funny

    Don't look at me, lawyers are saying it! ^__^

  5. irrelevant? by apodyopsis · · Score: 2, Insightful

    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.

    1. Re:irrelevant? by 99BottlesOfBeerInMyF · · Score: 5, Insightful

      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.

  6. Re:Irrevocable is irrevocable. by ODBOL · · Score: 4, Interesting
    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.
    --
    Mike O'Donnell http://people.cs.uchicago.edu/~odonnell/
  7. Re:Irrevocable is irrevocable. by Bruce+Perens · · Score: 4, Insightful

    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.

    --
    Bruce Perens.
  8. So this article is saying that... by Mongoose+Disciple · · Score: 2, Insightful

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

    How was this news, again?

  9. 'Complete, utter, unadulterated bulls**t. by sm62704 · · Score: 2, Insightful

    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

    --
    mcgrew's razor: Never attribute to stupidity that which can be explained by greedy self-interest
    1. Re:'Complete, utter, unadulterated bulls**t. by sm62704 · · Score: 2, Funny

      *WOOSH!*

      --
      mcgrew's razor: Never attribute to stupidity that which can be explained by greedy self-interest
  10. Microsoft is insincere. But that's not news. by Bruce+Perens · · Score: 5, Informative
    SFLC probably doesn't like any patent covenants, even Sun's and IBM's, regarding GPL software. But unlike Microsoft, Sun and IBM have themselves participated in the development of GPL code implementing the standards those covenants were meant to cover, and thus they are also covered by the GPL's language regarding patents.

    Microsoft, in contrast, hasn't bound itself to the GPL during the development of any existing OOXML implementation. Microsoft has also behaved in a very hostile manner, for example spreading FUD about their patents (we still don't have the list) covering our existing software. So, we don't have much reason to read their agreements in a favorable light.

    Bruce

    --
    Bruce Perens.
  11. Re:The 'legal analysis' is flawed by 99BottlesOfBeerInMyF · · Score: 4, Insightful

    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.

  12. Re:Irrevocable is irrevocable. by csnydermvpsoft · · Score: 2, Informative

    Sounds a lot like the GPL...

    Very true - which is why it is a stupid idea to use the GPL for a file format.

  13. For those of us without lawyers on retainer... by Qubit · · Score: 5, Interesting
    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?
    --

    coding is life /* the rest is */
  14. Re:The 'legal analysis' is flawed by pavera · · Score: 4, Informative

    Funny thing is, he links to the IBM ISP saying that it is exactly the same as the OSP... However, if you follow that link and read the IBM doc, it says nothing about being able to revoke the promise for future versions of the same spec the way the OSP specifically states.

    Further, he links to the SUN agreement saying that it is the same as the MS one in regards to implementations, SUN explicitly gives you the right to implement ODF 1.0 *AND ANY FUTURE VERSION* of ODF. This 100% contradicts what he says in his article (he says sun and IBM also have provisions that limit the applicability of the promise to a single version or set of versions of the specs in question). He is either willfully misrepresenting or he is ignorant.