Hi Andy,
Perhaps we should examine why Microsoft was willing to make the OSP,
they were willing to do so because it was to their advantage. Why was
it to there advantage? Because they have been forces to agree to pay
large fines by the European Union through anti-trust measures. Using
their defensive patents offensively against smaller third parties
working independently is monopolistic, and exactly the type of
behavior that the EU's big stick is penalizing Microsoft for.
Microsoft needs their large government contracts in Europe.
In their latest 10-Q filing in the discussion about items they feel
could effect adversely effect their revenue (10-Q for 12-31-07, page 37)
We are subject to government litigation and regulatory activity that
affects how we design and market our products. As a leading global
software maker, we receive close scrutiny from government agencies
under U.S. and foreign competition laws. Some jurisdictions also
provide private rights of action for competitors or consumers to
assert claims of anti-competitive conduct. For example, we have been
involved in the following actions.
Lawsuits brought by the U.S. Department of Justice, 18 states, and
the District of Columbia in two separate actions were resolved
through a Consent Decree that took effect in 2001 and a Final
Judgment entered in 2002. These proceedings imposed various
constraints on our Windows operating system businesses. These
constraints include limits on certain contracting practices,
mandated disclosure of certain software program interfaces and
protocols, and rights for computer manufacturers to limit the
visibility of certain Windows features in new PCs. Although we
believe we are in full compliance with these rules, if we fail to
comply with them, additional restrictions could be imposed on us
that would adversely affect our business.
The European Commission has initiated proceedings against us under
European competition law. In 2004, the Commission ordered us to
create new versions of Windows that do not include certain
multimedia technologies and to provide our competitors with
specifications for how to implement certain proprietary Windows
communications protocols in their own products. The design of these
special versions of Windows and the terms on which we make our
protocol technology available are closely regulated by the
Commission. The Commission’s impact on product design may limit our
ability to innovate in Windows in the future, diminish the developer
appeal of the Windows platform, and increase our product development
costs. The availability of protocol licenses may enable competitors
to develop software products that better mimic the functionality of
our own products which could result in decreased sales of our
products.
Government regulatory actions and court decisions may hinder our
ability to provide the benefits of our software to consumers and
businesses, thereby reducing the attractiveness of our products and
the revenues that come from them. New actions could be initiated at
any time, either by these or other governments or private claimants,
including with respect to new versions of Windows or other Microsoft
products. The outcome of such actions could adversely affect us in a
variety of ways, including:
•
We may have to choose between withdrawing products from certain
geographies to avoid fines or designing and developing alternative
versions of those products to comply with government rulings, which
may entail removing functionality that customers want or developers
rely on.
•
We may be required to make available licenses to our proprietary
protocol technologies on terms that do not reflect their fair market
value or do not protect our associated intellectual property.
•
The rulings described above may be cited as a precedent in other
competition law proceedings.
Our software and services online offerings are subject to government
regulation of the Internet domestically and internationally in many
areas including user privacy, telecommunications, data protection,
and online content. The application of these laws and regulations to
our business is often unclear and sometimes may conflict. Compliance
with these regulations may involve significant costs or require
changes in business practices that result in reduced revenue.
Noncompliance could result in penalties being imposed on us or
orders that we stop doing the alleged noncompliant activity.
This statement predates the OSP.
The OSP is an example of "We may be required to make available
licenses to our proprietary protocol technologies on terms that do not
reflect their fair market value or do not protect our associated
intellectual property."
This is why I think the OSP is safe, MSFT has made a covenant not to
sue.
The statement "The rulings described above may be cited as a precedent
in other competition law proceedings." is a way of saying that they
will keep their word.
A stick bigger than Microsoft protects us all.
From my point-of-view you are pretty much asking for nothing less
than
Microsoft to go beyond the OSP for POI. Correct?
Actually not exactly (a patent grant for POI and its derivatives) or
to fix the OSP to clarify conformance especially "best effort"
conformance (read: bugs) is acceptable.
I think that an OSP clarification would be helpful, I don't know that
it is necessary.
From a practical standpoint you're asking for Microsoft to re-write
the OSP to your satisfaction. Because If they do it for Apache it
would pretty much apply to everyone because anyone could just say
they're software was derived from POI, therefore it was covered by
the
new OSP just for POI.
The OSP probably offers no coverage. Even sam said something along
the lines that it is at best helpful and probably "harmless". I'm
asking for a patent grant that allows us to distribute under the
terms of the OSD. (I was earlier confused to believe that the CLA-C
offered this coverage, Nick tells me that I'm wrong and while I
don't profess to fully get it, I read his explanation and trust him
on that issue)
Would you care to explain the OSD and exactly how this is different
from the APL ?
I respect your position. POI is your baby and caution is most
definitely warranted when dealing with Microsoft.
POI is not my baby alone, POI is the users and the people that
supported it (developers too). It is them that I'm attempting to
look out for.
It's them that you are insulting. Sorry if have been emotional on this
thread lately - I buried my father Tuesday - www.crsp.com.
Regards,
Dave
Some facts to consider: I've never heard of a case of Microsoft using
their patents offensively. Also, there seems to be a general
consensus
I guess you need to read the news a little more often :-). In
addition to the most famous issue, Microsoft has used the patent
system to harm open source through third parties in the past. Thus
far they have primarily aimed at Linux.
in the community that the OSP is "good enough" protection. There are
That is not true either and you missed the doc that Nick posted that
explains the problem from a legalistic point of view around
"conforms".
several other open source projects that don't seem to be worried
about
it, including OpenOffice. Finally, anytime a single line of code is
committed to an open source project, there is a risk of it infringing
some frivolous patent somewhere. It's a sad reality of our IP laws.
A special issue is that Microsoft is contributing through a third
party. Which I have NO PROBLEM WITH AT ALL so long as they properly/
legally/etc contribute all of the IP that they contribute to the
implementation of. There is no reason, in my mind, for them not to
give POI a grant for all of the IP they fund the implementation of.
-Andy
-Ryan
On 4/16/08, Nick Burch <[EMAIL PROTECTED]> wrote:
On Wed, 16 Apr 2008, Andrew C. Oliver wrote:
I totally don't get the CLA-C argument.
It's a bit subtle, and it took me a little while to understand :)
Let us imagine that Acme Corp holds three patents, patent A,
patent B and
patent C. Acme Corp has a ccla on file, as does its sole employee,
Jim, who
also has an icla on file.
Jim starts contributing to Apache Foo on company time. He writes
some code
in an area covered by patent A. All users of Apache Foo now have a
grant
covering patent A. However, they don't have any rights on patents
B or C.
Now, you are also an Apache Foo contributor. You write commit some
code,
which is in an area covered by patent B. However, as no Acme Corp
employees
have worked on that bit of code, there is no grant covering patent
B, so we
potentially have a problem. We still have a grant on patent A, but
nothing
for patent C.
Jim now submits some patches to your contributions. Now, we do
have work
from Acme Corp in the area covered by patent B. So, there's now a
grant
covering patents A and B. However, there's still no grant on
patent C.
Does that make sense? If we got a ccla from Microsoft tomorrow, it
wouldn't
make any difference to POI, as Microsoft don't own the copyright
on any
contributions to POI, so there will be no patent grants. In order
to get
patent grants under the ccla, we'd need Microsoft to both file a
ccla, and
have their employees work on POI. This is why many of us feel that
the
Microsoft ccla issue is a red herring.
Do shout if that's still not clear enough, and I'll have another
try at
explaining it all!
Nick
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