Hi On Sun, Apr 13, 2008 at 4:08 PM, David Fisher <[EMAIL PROTECTED]> wrote: > As a preface, until I read the OSP when it was announced, I held a similar > opinion to yours - afraid that Microsoft would squash POI, if given the > opportunity. I'm not a lawyer, but I've read some legal documents and had > some of my own IP protected. To me the OSP seems OK, but you have asked us > to examine the issue.
I'm attaching Paul E. Merrell, J.D.'s view of the OSP. cheers Jason ---------- Forwarded message ---------- Date: Sun, Apr 13, 2008 at 4:04 PM Subject: Re: Rejection of any ENCUMBERED Microsoft Donation to POI To: Jason Harrop <[EMAIL PROTECTED]> Hi, Jason, The most authoritative source to cite for the Microsoft Open Specification Promise not conferring sufficient rights to implement OOXML is here. <http://law.bepress.com/unswwps/flrps/art71/>. If you compare it with the earlier Groklaw EOOXML Objections analysis, you'll see that the University of New South Wales law professors repeatedly cite the EOOXML Objections document and agree with virtually every point in it, but flesh it out with more legal research. If you would like to read an absolutely comic response to the UNSW report by a Microsoft lawyer who claims to have co-authored the OSP, see <http://www.zdnetasia.com/news/software/0,39044164,62037862,00.htm>. Nothing but evasions, but ponder what it means to be a Microsoft Regional Directory of Interoperability, especially if one is a lawyer rather than an engineer. I was rocking in my chair laughing uncontrollably when I read that job title. Yes, there are so many regional aspects to interoperability, but methinks they have more to do with IPR interop barriers than with the technology. :-) Are we setting up regional Microsoft law offices to write and negotiate IPR documents? The portion of the EOOXML Objections document that is relevant is here <http://www.groklaw.net/article.php?story=20070123071154671&query=eooxml+objections#Patent_rights_to_implement_the_Ecma_376_specification_have_not_been_granted>. It was published on January 23, 2007. I wrote the relevant sections myself. The significance of the earlier publication by Groklaw is that in all the time since, Microsoft has made no response that addressed the specific points raised. Their only apparent response to the EOOXML Objections document was a short "legal memorandum" citing no legal authorities that Microsoft solicited from the London office of a Swiss law firm. <http://www.bakernet.com/NR/rdonlyres/CC54A6B6-79E8-4E0D-B290-C836D5F70867/0/OpenXML.pdf>. It addresses none of the specific criticisms, ignores the existence of the criticism, and makes a series of grand but bald claims about how great the OSP is. The memorandum does not meet Bar disciplinary standards in the U.S. for memoranda giving legal advice to non-clients and is in truth nothing but propaganda. The OSP is merely a public relations tool. It confers no rights whatsoever, but is deceptively worded to convey the impression to the uneducated that it does. Microsoft's real licensing for OOXML is RAND-Z negotiated, that is, royalty-free but with IPR restrictions that have yet to be revealed and must be negotiated..Microsoft acknowledgement of the RAND-Z licensing requirement for OOXML can be found here. <http://openxmlcommunity.org/openxmlmyths.aspx#myth4>. Look here for a short discussion by a Microsoft in-house standards lawyer of what RAND-Z means. <http://standardslaw.com/wordpress/>. Microsoft added to its level of deception by claiming that it had submitted its OSP to ISO/IEC and that ISO/IEC had found the OSP satsifactory. While it is true that Microsoft submitted a copy of the OSP along with its IPR election form to ISO/IEC, it was a gratuitous inclusion. ISO/IEC do not evaluate IPR, leaving that to the courts. All that ISO/IEC require is that a particular form be filled out to accompany disclosure of the patents relevant to a given draft standard. In that form, the submittor promises, by checking boxes, to make IPR available by one of three methods. The form is here. <http://www.itu.int/dms_pub/itu-t/oth/04/04/T04040000020002PDFE.pdf>. As stated in the form: "However, while the Patent Holder in this situation is committing to not charging any monetary amount, the Patent Holder is still entitled to require that the implementer of the above document sign a license agreement that contains other reasonable terms and conditions such as those relating to governing law, field of use, reciprocity, warranties, etc." Beware the "etc." :-) Go here for a more detailed description of the ISO/IEC Patent Policy. <http://isotc.iso.org/livelink/livelink/fetch/2000/2122/3770791/customview.html?func=ll&objId=3770791&objAction=browse>. In summary, ISO/IEC build a database of patents claimed to read on a standard and require only the simple ambiguous promise. They do not evaluate IPR. Moreover, Microsoft's selection of the "negotiated" option implies that the OSP is not the real IPR document. I.e., if the OSP were the real IPR document, there would be no need for negotiation. It bears notice that the RAND-Z form Microsoft submitted applies only to Ecma 376 in the form it was submitted to JTC 1. A new one must be submitted for the changed version adopted. I do not know whether that has happened yet. My guess is not because the edited version is not due out until around May 1. Likewise, at this point the Open Specification Promise covers the Office 2003 XML Reference Schemas and Ecma 376, but does not yet cover ISO/IEC:29500-2008. <http://www.microsoft.com/interop/osp/default.mspx>. So as of tonight, the OSP is irrelevant in any event. I have been chasing iterations of the MS Office XML IPR documents around the mulberry bush since 2005. See in addition to the EOOXML Objections document linked above, <http://www.groklaw.net/article.php?story=20050330133833843#A4> (critiquing the Microsoft Office 2003 XML Reference Schemas patent license) and <http://www.groklaw.net/article.php?story=20051129101457378#A2> (Covenant not to sue for the same schemas, later ineffectively extended to cover OOXML as well). In my entire legal career, I never encountered any legal documents as weasel-worded as any of the three. They are simply reprehensible traps for the unwary and absolutely unethical. At the same time, I think Microsoft has irrevocably waived its rights to assert its patents against OOXML implementations, but not because of any of its IPR documents. Rather, I believe a court would find an implied waiver in Microsoft's public statements about the OSP and the degree of freedom it confers. The IPR documents themselves forbid looking outside their four corners themselves as a source of rights, so the public statements cannot be used to imply rights into the IPR documents themselves. However, this is an unavoidably risky opinion. Implied waivers do not exist until a court implies them, so to speak. In summary, I'll opine that any developer who plows hundreds or thousands of hours into developing an implementation of OOXML without a signed private agreement with Microsoft is building on legal quicksand of unknown depth. I can't imagine that any of the big software houses developing support for OOXML do not have separate agreements with Microsoft allowing them to do so. I stress that all of the above is personal opinion rather than legal advice. I resigned from the Bar when I retired and am no longer licensed to practice law. Please feel free to share this post as widely as you wish. Best regards, Paul E. Merrell, J.D. ("Marbux") --------------------------------------------------------------------- To unsubscribe, e-mail: [EMAIL PROTECTED] For additional commands, e-mail: [EMAIL PROTECTED]
