More Open XML Discussion – more misunderstandings about standards and IP


There is much to talk about based on what has been happening in the discussion of Open XML these days. First, ISO has posted a FAQ about 29500. The approach taken in the FAQ is both direct and simplified. The rabbit hole on standards goes deep indeed, and any such FAQ must simplify to make it digestible for the layman reader.

An example of someone misunderstanding standards and IP issues would be Groklaw in this post. The post displays many of the misunderstandings about IP in standards that I see echoed around the blogosphere.

I will say that the author of the Groklaw post got it right when they wrote that, “Patents and Linux and FOSS don’t mix.” But the author jumps off the tracks completely when the observation is followed up with, “So RAND terms in Microsoft’s hands are discriminatory.”

I think it is important that anyone offing an opinion on the OSP should first ask him or herself a question: do I really understand IP licensing in the world of standards? I’d suggest that the author the Groklaw post didn’t ask this question up front and would benefit from some boning up – it would help get the story straight.

Here are some things I think may be helpful in this discussion. By the way, my answer to the question I just posed in the previous paragraph is, “sort of.”

1) RAND (reasonable and non-discriminatory) did not originate with software. It is a commonly used acronym but has different meanings in different standards bodies. It has many parts – more than just patent rights, more than royalty terms…my understanding is that it is a framework designed to provide both incentive for contribution and implementation. The reason I agree with the statement about patents and Free Software not mixing is that there have been terms written into GPL licenses that explicitly conflict with software patents. Okay, that is the choice of the authors and users of those licenses. But the fact that those licenses were written does not mean that the RAND terms that have evolved over the past century of standardization are suddenly invalid.

2) The ISO/IEC JTC 1 patent policy is applied uniformly to all standards in the ISO/IEC JTC 1 arena. The idea that the RAND declaration regarding Open XML is any different than a RAND declaration for ODF or for any other ISO Standard (such as…oh I don’t know…how about PDF just for fun. Remember the huge list of patents that Adobe used to put on the welcome screen of the Acrobat reader alone?). The terms provided for the Microsoft patents in Open XML are legally irrevocable. They are global. Since they are broader than the RAND declaration for JTC 1, the attempt at FUD by the Groklaw post should be recognized for what it is…FUD.

3) The various covenants not to sue or similar promises from a few (mind you, this is hardly common practice in the software industry today) of the big vendors are all born of the same desire – to help bridge the gap between Free Software and software patents used in specifications. Forget the philosophical and ontological debates about software patenting for a moment and just deal with the fact that the law in a number of countries recognizes software patents as valid IP today. And, judging by the continued pace of patent filings, it would seem that more than a few people out there are seeking to use software patents as a legitimate means for protecting their innovations. Heck, even some of the long-time Free Software advocates are looking at the positive implications of patenting software as a means to encourage greater innovation. Yet all of these bridges run into some snag or another on various points. So the question that comes to mind is how important are those snags?

Before you get your hair in a knot over this, consider for a moment that all Linux distributions come with code licensed under reciprocal licenses that conflict and (in theory) should block the distribution of the software. Oops, no one seems to care about that snag. Okay, Linux also ships with code that implements standards specifications covered by RAND terms from many parts of the industry that should block the distribution of the software. Oops, no one seems to care about that snag either. Hmmm – I’m wondering if those complaining about the OSP understand the nature of IP terms in standards to begin with, since they don’t seem to mind these other, potentially more-serious issues.

4) Many of the terms included in standards IP licensing are there for a rainy day vs. for any practical use. In many cases, IP holders will provide RAND terms that include royalty terms yet never, ever collect a penny in royalties. Why, you might ask? Those terms are there as a defensive mechanism. This is true for the entire concept of defensive suspension and to a large degree the concepts around limitation of scope as well.

5) The concept of “discrimination” in the standards world of RAND is another one where you really need a lawyer to talk you through what it means and/or doesn’t mean. I am not a lawyer, but to my understanding it has a great deal more to do with the uniformity of your application of terms to like parties than it has to do with any one party being able to take those terms or not. If there are lawyers reading this thread I’d love the input. Everyone should have the choice of what license they use – but there may be implications for the use of those particular terms as they will interact with the rest of the world.

Concluding this too-long blog post…

As you can see, looking at the real issues on the table about IP and standards is a good thing to do. I am on board with the idea that the established world of IP in standards needs to be looked at carefully in context with the amount of work happening under the concepts of reciprocal licenses. It would be helpful if folks who speak with a loud voice also seek to do so in an educated fashion.

I am a serious proponent of participation in the process – but that needs to be for all parties, large and small alike. But that means keeping an open mind while you are also advocating open standards.

Comments (76)

  1. Swashbuckler says:

    Jason,

    A couple of points:

    1. I’m sure you know this, but for those that don’t: Groklaw has the (unstated, but strongly implied position) that there is a fundamental *right* to have a free software version of anything.  It’s ironic in a sense, since as I grok the law there is no such thing.

    2. Take the sentence "So RAND terms in Microsoft’s hands are discriminatory. Period. There is no escape from that problem."  Well, from the Groklaw perspective the sentence could have been more accurately written "So RAND terms are discriminatory. Period. There is no escape from that problem."  But they have to get that anti-Microsoft dig in there.  Given Microsoft’s abysmal behavior in the OOXML standardization saga (I know you probably disagree with that statement) there is certainly reason for anti-Microsoft sentiment, but such obvious bias hardly helps Groklaw’s case.

  2. orcmid says:

    Thanks for going on so long. This is a meaty post.  

    I also noticed that the Groklaw post thinks RAND and Microsoft are somehow joined at the hip too.  I love how we are given these daily counter-examples to "extremism in the cause of freedom is no vice" (ignoring the more prominent examples in public life).

  3. jasonmatusow says:

    Hi Swashbuckler – I completely agree on your first point. I think that the concept of reciprocal licensing is fascinating and has many advantages. But, I am a beliver that society needs intellectual property rights, and that software is among the most valuable IP out there. Call me a stick in the mud, but I do think innovation is bolstered by patent protection…even in software. Could that system be improved? You bet, but the benefits significantly outweigh the costs.

    On your second point – from the Groklaw point of view, RAND is hostile to free software licensing. This is true – it is also true that the idea of conformance testing is anethma to OSS coding pracitces as well (unlimited modification vs. conformance to a much slower moving spec.). As for the behavior in Open XML – there was good and bad on all sides. I could write a long time on that, but I think it fair to say it was not a pretty process, but the result was some very solid engineering work and it will benefit people in the long run to have Open XML as an international standard.

    Jason

  4. jasonmatusow says:

    Orcmid – thanks for the comment. The funny thing is that Microsoft has been among the industry leaders in royalty-free standards licening for decades. RAND is not about Microsoft, nor Sun, nor IBM…RAND is a legal instrument that has come from industry (used in its most generic sense) needing a framework to come together and work on standards in a world that values intellectual property rights.

    Groklaw is not exactly a bastion of neutrality – but even with their rabid dislike of my employer, I still believe the conversation in the blogosphere is a net positive for everyone. The mix of voices and opinions is simply amazing.

    Jason

  5. Brett says:

    Jason,

    You’re right in the literal meaning of Discriminatory. I think PJ is also right in that the chosen RAND Terms Microsoft has crafted is done in such a way as to exclude GPL post fact is deliberately discriminatory, hear me out.  

    To say it’s the developer’s fault that most of Microsoft’s biggest competitive threats are conveniently excluded because of the license they chose ten years ago is wholly supportive of the community’s belief they’re discriminated against. In reality it may just be simply unreasonable (as opposed to discriminatory) that Microsoft excludes by patent noose their biggest competitive threat and arguably the next most popular office suite in their competitive arena.  This may still qualify as reasons under the RAND clause.  Now if Microsoft was fair and interested in true OOXML support by the rest of the industry then why not adopt a similar patent protection covenant for OSS and GPL like IBM, Red Hat and Novell?

    as was succinctly put in post blog comments on the link you provide. it’s analogous to a public bus that has a policy of "No Blacks Allowed" which is a rule that is universally applied to everyone and therefore isn’t discriminatory, if it turns out they’re black, they don’t get to ride. After all, it’s their own silly fault they were born African/American, right?  They should’ve picked some other colour.

    The Patent threat that is prevalent in software development is and most probably will always be there.  I keep saying it but Microsoft (unlike most other players competing with OSS) is prone to pushing their legal rights to the absolute extent they can to neutralise opposition, especially where a tangible threat exists.  This is well-established history.  The fact that patents are out there that may affect OSS and GPL doesn’t mean they can’t be worked around or that the patent owner has the intent and historical precedent to follow through a claim against developers.  Microsoft is well-known to be particularly vindictive in this regard and the fact that Microsoft has gone to great lengths to not be nailed on giving GPL the all clear means everyone is very much on the defensive and feeling threatened.

    I’d like to think that’s not the case, can you get an MS Spokesperson to clear the GPL of liability in true spirit? I mean that in the true sense, why not extend coverage to include commercially used implementations and expansive/derivative works based on GPL?

    Brett.

  6. Brett says:

    Another point on Patents particularly where GPL and open source software is concerned, how does patents serve emerging software developers and newly established companies without large piles of cash reserves?  It simply serves to protect the status-quo of big players and largely provides barriers to entry for said startups.

    The GPL infuses the same value in IP that you speak of using the same mechanisms in copyright law.  The obvious difference is that everyone is free to use, study and improve this work and as such provides a very valuable base for both corporate and non-corporate entities to leverage.  I don’t see the same value of patents on software that you do, principally because I believe it does impede progress.  I don’t know of any software patent that wasn’t part of a large corporation’s patent portfolio or bought up and cashed in by patent litigation companies or individuals.  Technology moves too quick to have to lock out competition for decades.

    Brett again

  7. Swashbuckler says:

    Brett,

    RAND terms for patents related standards is the norm and has been for years, long before the term "open source" was ever coined.  What you’re asking is that all standards organizations change their IP policies in order to accommodate open source.  

    Hell, most standards orgs don’t qualify as "open" because they charge for their standards.  And some that don’t charge for copies of the standards charge to be members of the org (see OASIS as an example).  How is that "open"?

  8. Brett says:

    Swashbuckler,

    You’re right, everyone’s been using RAND terms as opposed to free and fully open non-revokable use as you’d like gratis terms for years and fair enough too.  No, I’m not asking nor expecting anyone to change their terms.  

    The big concern for many, many people, organisations and companies, not just me, is that Microsoft is deliberately roadblocking GPL and to a lesser degree, Open Source Software with their unreasonable terms.  Obviously Microsoft hasn’t done anything illegal, Microsoft has always buffed the grey edge (and occasionally overstepped it somewhat) following the letter of the law but rarely the spirit.

    An example maybe:  Microsoft has seen a credible threat in an open source Office suite (let’s say OpenOffice.org) who’s native file format is now a ratified ISO Standard, what’s more, some emerging markets in the form of developing countries are mandating Open Standards. Let’s face it, other Office Suites are also supporting this format and the movement is gaining critical mass.  OpenOffice.org and to a lesser degree other OSS software including Office Suites and OSes are already Microsoft’s biggest threat.

    The Problem:  Microsoft’s Office formats are widely seen as closed and inaccessible, MS Office is a large cashcow for it’s owner and ceding control to a standards organisation would be neccesary to be able to sell into these markets.  It isn’t possible to stop this phenomena in any traditional sense, can’t buy or acquire companies either due to antitrust or the fact that no one comany controls the code nor the developers, can’t take key developer’s out through prolonged litigation because they’re too small and there’s too many (and imagine the PR damage?), partnering with key entities working with OSS hasn’t really stemmed the tide either, it’s all akin to hearding cats really.

    Microsoft’s solution so far?: Standardising their formats with a pretend, unimplementable standard that mostly looks like their Office format in a soft-target called ECMA (ECMA-376 was never a workable solution, be honest…) which did allow Microsoft to "Fast Track" their ISO bid where it became possible with a concerted effort to garner just enough support to get their ISO stamped standard (which isn’t how MS Office formats it’s documents now and even if it does eventually, it won’t be for a long time) where we’ve already seen well-documented and covered to death on the web how Microsoft (perfectly legal of course) didn’t bribe anyone but stronly encouraged partners to register and cast votes in NB’s with MS Marketing concessions and discount looking carrots, Government Incentives for Government Ministers and where applicable, their newly formed NB’s  to look kindly on joining and/or supporting the OOXML Vote at the BRM, pressured the employers of key figures and influential members to help make decisions that happen to support OOXML, the occasional MS Employee (completely disregarding company policy of course) offering outright cash incentives to join and vote "correctly" at NB Meetings and the BRM and where it really got down and dirty, contesting votes and decisions made at NB’s where they didn’t favor OOXML, attempting to invite themselves to NB meetings as representatives of another organisation to "discuss technical merits" (not that technical merits were ever discussed at all where Microsoft could help it, it generally came down to Market should choose and MS is a victim, etc…).  Microsoft Got it’s pseudo-standard with it’s ISO certificate that isn’t really what MS Office is doing anyway and what’s more, key competitors have predictably stuck to their guns and therefore can’t implement on principle, the standard is vague enough to keep everyone else chasing their own tails indefinitely trying to work out how this thing fits and MS goes back to market hoodwinking Governments and Businesses into lockin with their software all over again, this time loosely coupling their New and improved ISO Mark!.  Now IBM, Sun, Oracle, RedHat, Google no longer have this ISO thing over MS in the marketplace anymore, Double whammy, MS looks like they’re playing nice with others…. (=D says MS)

    Post Mortem: it doesn’t look pretty.  It’s not at all gracious in any way to see what went on here and how Microsoft conducted itself.  MS pulled all stops viciously to get what it wanted but abiding to the superficial letter of the law and not the spirit, for example MS Never bribed anyone by definition but it did hand out lots of discount vouchers and pre-approved go-to-market funding to a great many "Partners" and Governments to effect the very same result. all in a purely legal way of course, there’s nothing saying they can’t do that.  The ISO was never prepared for the onslaught of a player the size of Microsoft to game them the way they did (sure, I can see that this isn’t how you or any number of MS Employees and partners may see it), even where MS could possibly be trumped and didn’t have a clear cut course forward, ISO Rules and Regs were changed on the fly to allow possible passage.  The ISO Spirit is to get consensus by involved NB’s to obtain working standards that are usable by the wider community.  It isn’t a system that should be overcome any way you can to obtain the prize at the end, Ironically the ISO Stamp of Approval was as valuable as it was to Microsoft because it had the international standing and reputation built on this rigorous spirit of co-operation between National Bodies of Technical Experts and Standard Submission Applicants coming to consensus.  Microsoft has come to the table seemingly to destroy the opposing team that is the ISO Membership (which is usually how everything is handled by Microsoft, ask Yahoo) largely by diluting the ISO Technical Experience with enough paid-for "one time" subscribers with nothing more to do than turn up and vote in favor to receive their MS funding prizes, cheapening the value of this particular process beyond redemption. It’s widely believed these clayton NB’s and NB Members won’t be heard of until some other "Important-to-Microsoft" vote comes up again.

    Surely you get my point?

    I’m thinking I should include references for each of these points I raise, many of them come from NB Chairs and panel members as well as industry observers from various member organisations that did have first-hand experiences.  They come from all over but most notably the above came from comments by the following NB attendees readily found on the web: Sweden, Malaysia, India, Chile, Canada, Brazil, Britain, New Zealand, Poland, Mexico and France.

    Brett.

  9. len says:

    I have a different opinion as I said on Brian Jones’ blog.  

    While there are certainly reasonable people who support their own chosen standards (eg, ODF) and some who’s associations with Microsoft in the past make them wary of any efforts toward openness, too much of what I am reading is incindiary and now focused on accusing ISO of corruption, thus making it even more difficult to create international standards by negotiated consensus.

    These are not reasonable people.  They were full of fury before the vote, and frustration will drive them to be even more furious.   You won’t win them over with logical arguments or appeals professional behavior.

    The answer is simple:

    "You lost.  Get over it."

    I realize that is not a conversation starter, but a conversation is not what is being fostered.  These are flame wars designed to overturn consensus for the sake of minority positions.   Don’t reward that.

  10. G Fernandes says:

    [QUOTE]Before you get your hair in a knot over this, consider for a moment that all Linux distributions come with code licensed under reciprocal licenses that conflict and (in theory) should block the distribution of the software. Oops, no one seems to care about that snag. Okay, Linux also ships with code that implements standards specifications covered by RAND terms from many parts of the industry that should block the distribution of the software. Oops, no one seems to care about that snag either.[/QUOTE]

    Can you be specific and provide examples? ATAICT, all distributions come with legally vetted binaries built from source licensed under COMPATIBLE licenses.

    That an end-user can "pollute" said distribution with self-built or third-party built binaries from sources with CONFLICTING licenses is completely the end-users choice and responsibility – NOT the distributions.

    After all, if you chose to commit a crime, it would be wrong to blame your parents, wouldn’t it?

  11. DaleP says:

    Swashbuckler said:

    "1. I’m sure you know this, but for those that don’t: Groklaw has the (unstated, but strongly implied position) that there is a fundamental *right* to have a free software version of anything.  It’s ironic in a sense, since as I grok the law there is no such thing."

    As Pamela Jones makes clear in her new post, "What is Wrong with RAND?", she does not feel there is a right to a free software version of anything, but only of something that claims to be an international standard.

    Swashbuckler’s last post notes, "What you’re asking is that all standards organizations change their IP policies in order to accommodate open source." Yes, that is a policy question that has been made live by the development of free and open source software. Standards organizations never had to face that question until now, so it is not a complete response to cite past practice. You may disagree, but locking out the GPL from implementing an international standard, Open XML, is wrong, and if Microsoft uses its market power to make it stick, it may be anti-competitive.

  12. Alex says:

    Swashbuckler – part of your argument is irrelevant.  So what if most standards orgs don’t qualify as ‘open’?  It’s not the organization free software looks to implement, just the standards they produce.

    And we’re not asking all standards organization to change their IP policies, except as it applies to software, arguably a very narrow sector of standards.  

  13. HappyToBeHere says:

    Well, Jason, I’m afraid you’ve bitten off far more than you can chew with this blog entry.  Pamela has responded to you with an intelligent, well-researched article that complete exposes the oil-and-water mixture of any RAND license (including the OSP) and the GPL.  Furthermore, she shows that this is no accident.  On the contrary, she shows that Occam’s Razor requires that the OSP is a deliberate and transparent strategy to preclude FOSS projects from ever implementing Open XML.

    I think a key observation is that the definition "Reasonable" is in the eye of the beholder.  From the perspective of  FOSS under the GPL, the OSP is absolutely NOT reasonable and most certainly discriminatory.  

    If you want to continue this arms-length discussion with Ms. Jones, I wish you luck.  She is certainly smarter than I am and I would not wish to tangle with her.

  14. Not IBM says:

    Swashbuckler:

    The standards organizations need not change; they are free to continue offering standards with discriminatory terms. That doesn’t mean they’ll be used. Organizations and governments want more control over their software, their documents, and their costs, and they can’t get it from proprietary software. Therefore, if *they* (the customers) want it, they’ll do what it takes to get it. Even if it means excluding unusable standards.

  15. Mel says:

    Swashbuckler,

    RAND is a descriptive term, not a fixed definition.

    You are assuming that the meaning of "Reasonable and Non-Discriminatory" cannot every change – that was was reasonable, or non-discriminatory years ago will always remain so.  

    Years ago, proprietary software was the only business model in existence.  This is no longer true.   A significant portion of the market operates with an OSS model which the current, common  RAND terms of yesteryear do not accommodate.

    If requiring RAND terms be changed to accommodate OSS means that standards organizations change their IP policies, then yes, that is what we are asking for.

    Why do you feel it is a problem, if what was reasonable years ago is unreasonable now?  

  16. Esme says:

    Sorry, but ANY company which persists in using unethical methods to try to promote its products and force their use even by those who want nothing to do with them, and smear tactics against those who point out such behaviour deserves nothing but derision and contempt.  Microsoft is clearly one such company, it has shown many times that it cannot be trusted to act ethically, fairly and  within the law and that is why I won’t touch its products with a bargepole.   I’ll happily pay for competitive products from companies that DO behave ethically, and do.  A standard is something that can be implemented by all – therefore OOXML is not a standard QED.

  17. parena says:

    Groklaw has ‘blogged back’ to this article, showing exactly where the problems are ( http://www.groklaw.net/article.php?story=20080417104016186 ). How can OOXML be fair if I personally cannot use it? I’m a Mandriva Linux user and OpenOffice.org user. But the OSP is, factually, incompatible with the GPL. OpenOffice.org cannot implement OOXML correctly. So, how can this be fair to me?

  18. Graeme says:

    "RAND terms for patents related standards is the norm and has been for years, long before the term "open source" was ever coined.  What you’re asking is that all standards organizations change their IP policies in order to accommodate open source."

    Yes. You’re correct. If the world is moving towards new ways of writing software and using computers, you need to accommodate that. Or die. In the long run, these are Microsoft’s options. The complete lack of uptake on Vista and Office 2008 is proving that as we speak.

    "Hell, most standards orgs don’t qualify as "open" because they charge for their standards.  And some that don’t charge for copies of the standards charge to be members of the org (see OASIS as an example).  How is that "open"?"

    You’re pretty much proving the opposite position you seem to be taking here. This is just a very good argument for reworking standards organizations so they don’t do these kinds of things. It’s certainly not an argument in favour of RAND.

  19. drakaan says:

    Swashbuckler,

    The fact that the current norm of RAND terms predated the term open source is probably one of the more important ones in this discussion.  Maybe Brett wasn’t asking all standards organizations to change their policies, but rather to look at the very different set of requirements for actually being non-discriminatory today vs. 20 years ago.

    Open-source software was a non-factor 20 years ago, so it wasn’t ever talked about in relation to standards.  Now that open-source software *is* a factor, shouldn’t barriers that open-source software companies run into be accounted for in the definition of RAND?  Should the definition apply to only the typical use-case of the type of companies that were around when the term was coined?

  20. matt says:

    Swashbuckler,

    Software is not something that functions like other patents. We have issues with the fact that people are patenting a nonphysical application of something at a basic level.

    The term open source, was coined well before RAND, so I’d like to correct you on that. Depending on how you selectively interpret combining 2 common words, the definition can go anywhere from well before RAND to just simply not even worth researching beyond that point.  Open collaboration = open source. How long has the world been pooling ideas together? Sounds like after RAND to you, huh?

    Charging for membership is the same as charging for standards. I work for a standards company so I understand exactly how that works. We charge people for both typically. How is charging upfront to participate any different than charging later to see materials, other than when payment is required? There’s a difference when a membership fee is 3 or 4 hundred USD, and when to see an equivalent to a standard (samba antitrust issues, anyone?) is priced at a magic 10 grand.

    Is that discriminatory? yes. Is it even, predatory to competition? absolutely.

    As mentioned above, reasonable is a floating happy magical term. In the legal grounds that means: anyone who can prove a better argument can make it mean anything they want. This is a big issue right now.

  21. Doug says:

    "most standards orgs don’t qualify as "open" because they charge for their standards"

    The difference is that I don’t have to pay a RAND licence to company W for a product I bought from company L, the said RAND license being nothing more than lawyer bumf.

    The whole notion of ‘IP licensing’ could be viewed as a protection racket. Google on Acacia to see what I mean …

  22. Mark Murphy says:

    "RAND (reasonable and non-discriminatory) did not originate with software."

    If the notion of RAND can be altered to accommodate new venues, such as software, then it stands to reason that such alterations need to take into account the nuances of the venue and how that venue changes over time…in this case, including the ramifications of "reasonable" and "non-discriminatory" for free and open source software. After all, Free Software is about as old as Microsoft is, so it’s not like you can claim it’s a Johnny-come-lately to the party.

    "But the fact that those licenses were written does not mean that the RAND terms that have evolved over the past century of standardization are suddenly invalid."

    Sure it does. Either RAND evolves, or it doesn’t. If it doesn’t, it can’t apply to software. If it does, it has to apply to the world of software as it really is, not as how Microsoft (or any other promulgator of RAND terms) wants it to be. And, the world of software as it really is most definitely involves "those licenses". Particularly seeing as how many of the software suites that might be likely candidates for implementing OOXML are licensed under "those licenses".

    "The terms provided for the Microsoft patents in Open XML are legally irrevocable."

    If so, where do I get to sign the contract, and what consideration do I need to provide to get those terms? If there is no contract for me to sign, and if I do not provide consideration, there is ample potential for those terms to be revoked, seeing as how I don’t have a contactual relationship with Microsoft that enforces said terms.

    The OSP follows the anti-pattern established by EULAs. With a EULA, the terms of the contract are being stipulated by the software vendor, but there is no signature by the other party and no consideration (since the cash transaction preceded the presentation of the EULA terms). EULAs are most definitely under dispute as to whether or not they are legally binding — I’d reprint the lineup from http://en.wikipedia.org/wiki/Eula#Enforceability but it’s rather long, and I’m sure there are more than that, but it was an easy list to cite.

    I fail to see why the OSP would be any different, since the software vendor is stipulating contract terms without signatures and without consideration.

    "Before you get your hair in a knot over this, consider for a moment that all Linux distributions come with code licensed under reciprocal licenses that conflict and (in theory) should block the distribution of the software."

    Care to cite any examples? Or must we take that on faith?

    "Oops, no one seems to care about that snag."

    Except for the Firefox/IceWeasel brouhaha, and the Linux/OpenBSD WiFi driver dispute, and the GPLv3-Apache 2.0 license compatibility debates, … Those are three just off the top of my head. The free and open source software community is very much interested in keeping licenses straight, despite the intrinsic difficulties of doing that in a bazaar development model. Heck, I seem to recall the Linux community expressing interest in ensuring they don’t infringe upon the 200-odd patents that Microsoft likes to toss about…if Microsoft would ever indicate what those patents are and where they think infringement is occurring. Since you brought up FUD and all.

    "Okay, Linux also ships with code that implements standards specifications covered by RAND terms from many parts of the industry that should block the distribution of the software."

    Care to cite any examples? Or must we take that on faith?

    "Many of the terms included in standards IP licensing are there for a rainy day vs. for any practical use."

    Except that the patent holder controls the weather.

  23. Nostromo says:

    Swashbuckler said: "I’m sure you know this, but for those that don’t: Groklaw has the (unstated, but strongly implied position) that there is a fundamental *right* to have a free software version of anything."

    I’ve been reading Groklaw for years, and have seen nothing to support that position. Groklaw is against software patents, as is practically every software developer who has thought about them, but that’s not at all the same thing.

  24. AlphaGeek says:

    Swashbuckler:

    You’re using a nice red-herring about RAND.  Most standards RAND terms that are considered open (and not all standards are open) do not impose sub-licensing restrictions (example, Adobe and its PDF).  Microsoft has chosen to explictly include those terms in its so-called "Open Office XML" as a poison-pill.  Microsoft knew going in that its licensing terms were incompatible with GPL and other Open Source licenses, but it continued the fiction that OOXML was "open" for marketing and FUD purposes.  Microsoft cannot afford to be found behaving like a monopolist (because of its court history), so it has to disguise its monopoly practices with deceptive licensing terms and other roadblocks/tricks.

    Microsoft deliberately chose to issue OOXML under the terms that it has to fulfill its own market goals, as stated so succinctly by Ghengis Khan:

       "It is not enough that we win, all others must lose."

  25. Ron says:

    @swashbuckler: As has been said many times, free software can cost money. The same is true of open standards. So this is a red herring.

    Calling a standard "open" while implementations are encumbered legally is Newspeak. All open standards are open, but some standards are more open than others.

    Just call it a closed standard. Assert clearly that GPL implementors run the risk of being sued for patent violations for looking at the documentation covered by the OSP. Say what is already obvious to everyone: MS is going to embrace and extend the same standard they worked and lobbied so hard to be approved in a "neutral" forum. Organizations that care about interoperability with Office are going to trudge back to Andrew Tridgell’s French cafe.

    In other words, the standards process was an enormous waste of time, an exercise in futility.

  26. Swashbuckler says:

    Brett,

    All of stuff you mentioned has nothing to do with RAND.

  27. Swashbuckler says:

    DaleP,

    I don’t agree that there is an inherent right for there to be a GPL implementation of all standards.  GPL gets to compete along with everything else.

  28. Swashbuckler says:

    Alex,

    "So what if most standards orgs don’t qualify as ‘open’?"

    So what?!  A standard isn’t truly open if it costs money to have input into that standard.  What goes into the standard is quite  important.

    "It’s not the organization free software looks to implement, just the standards they produce."

    You don’t think developers want to influence the direction of the standards that they implement?!

    Puhleez!

  29. Swashbuckler says:

    HappyToBeHere,

    Well researched?!  LOL!

    She went and found references from a bunch of free software advocates.  It’d be like Jason citing Bill Gates and Steve Ballmer as backup for his views.

  30. Swashbuckler says:

    Not IBM,

    I agree.  If it becomes necessary, the stds orgs will change and require that standards not have any IP issues.

    I don’t think it will be necessary any time soon.

  31. Swashbuckler says:

    Mel,

    I’m assuming no such thing.  I’ve been involved in standards for years.  I’ve even served as the editor for a standard that went through ANSI and is in the process of going through ISO now.

    My issue is that free software folks INSIST that existing standards orgs have to change their policies in order to accommodate free software as if there is an inherent right to have a free software implementation of everything.  There is no such right.

    Is it true that stds that are IP encumbered may not be successful in the marketplace?  Absolutely.  If that happens enough then stds orgs will change.

  32. Swashbuckler says:

    parena,

    There are standards (either de jure or de facto) that are IP encumbered all over the place.  Own a CD-ROM, DVD, HD-DVD o Blu-Ray device?  They are all standards and they are (or were) all IP encumbered.

    You and others are getting upset over IP encumberment (is that a word?) with OOXML yet you’ve been living with similar circumstances in other areas for years.

  33. Swashbuckler says:

    Graeme,

    "The complete lack of uptake on Vista and Office 2008 is proving that as we speak."

    Correlation is not causation.

    "You’re pretty much proving the opposite position you seem to be taking here."

    Nah, I’m citing the hypocrisy of some who want standards to be open, but not the process for creating those standards.

  34. Swashbuckler says:

    drakaan,

    Perhaps.  I just want the marketplace to decide.  If stds that are IP encumbered repeatedly fail then stds orgs will adapt.

  35. Michele Mauro says:

    Jason, you wrote:

    "But, I am a beliver that society needs intellectual property rights, and that software is among the most valuable IP out there. Call me a stick in the mud, but I do think innovation is bolstered by patent protection…even in software. Could that system be improved?"

    When you read about patents & software, you usually read about the latest troll that tries to ambush the deepest pocket and be the latest Eolas or how the deepest pockets try to stockpile as much patents on everything from 1+2=3 up to try not to be on the other side of the latest Eolas. The system needs to be improved badly, because nowadays is only bolstering litigation innovation, not software.

    "it is also true that the idea of conformance testing is anethma to OSS coding pracitces as well (unlimited modification vs. conformance to a much slower moving spec.)."

    Funny thing is, most reference or historical implementation of some of the more stable protocols around the ‘net (HTTP, SMTP, FTP, just to name a few) have been  or are open source… By the way, where is the conformance suite for OOXML? Does Office 2007 pass? How many products exist that pass it?

    Michele Mauro

  36. Swashbuckler says:

    "We have issues with the fact that people are patenting a nonphysical application of something at a basic level."

    That’s a separate issue you need to take up with governments.

    "There’s a difference when a membership fee is 3 or 4 hundred USD, and when to see an equivalent to a standard (samba antitrust issues, anyone?) is priced at a magic 10 grand."

    Yeah, and how much does ISO charge for standards?  We both know it ain’t $10K.

  37. Swashbuckler says:

    Jason,

    Sorry about hijacking your blog…

  38. My perspective:

    It’s not very productive to talk about historical meanings of RAND and what existing IPR policies say (for the record, I’ve drafted/negotiated/mediated the terms of about 50 of them, which should qualify me for an equal number of purple hearts).  I believe that It is important, however, to talk about what IPR policies and pledges should say in the future.

    Right now, we are in a time of transition, when a larger and larger percentage of software is being written under GPL licenses, and that software is becoming more and more important to more and more aspects of modern society and areas of implementation.  Linux, of course, now runs not only on desktops, servers and laptops, but also is  becoming the operating system of choice for mobile and internet devices of every kind.  The New York Times this morning reports that  even the new Internet-enabled Yamaha player pianos (if you can call an instrument that costs up to $150,000 a "player piano") runs on Linux.  

    I believe it’s probably fair to say that open source wouldn’t be this successful and this pervasive were it not for the GPL license, as it is the ethos that underlies that license that has in large part pulled so many tens of thousands of top notch developers into GPL.-based projects.

    So the reality of the marketplace is that more and more end-users are choosing software that is based upon the GPL.  And this software needs to make as much use of interoperability standards as any equivalent software.  So what are we to do?

    Increasingly, my existing clients are either amending their IPR policies to have GPL-compatible tracks for standards development where GPL implementation is likely.  OASIS went this route in 2005 (which was not deemed to be far enough by Larry Rosen), and a larger percentage of the new consortia I am helping form are choosing to adopt IPR policies that are exclusively GPL friendly.  I therefore use "GPL compatible" in the actual licensing requirement languages of the policies themselves, so that there is no question what the intentions of the parties are.  I would suggest that this would be useful in covenants not to sue (like the OSP) so that there is not doubt in the matter, and therefore no need (even) for FAQs.

    So I would predict that this path will be increasingly taken by more and more consortia in the years ahead, and that changes may occur in RAND nomenclature as well (we are already seeing "RAND-0" for example, meaning royalty-free, or RAND Zero).  I think that this is not the best choice of words, however, if GPL-ready is what is really intended, as RAND has too much baggage.  I would therefore suggest that something like "FOSS-F" or "FOSS-C" (e.g., FOSS Friendly, or FOSS Compatible) would be more useful.

    It is more difficult for me to predict whether all software standards may eventually be FOSS-C.  FOSS proponents would say that all software should be eligible for FOSS implementation, but perhaps not all software will, in fact, attract FOSS implementers, which may lead to some uneasy compromise at the interface.  We shall see how this plays out.

    A final point:  Jason, in answer to your question about "Non-disciminatory:"  In my experience, this is a purposely vague term that I have tried, without success, to define (also the case with "Reasonable") for many years in IPR policies.  Vendors prefer to keep these terms vague, unfortunately, to preserve wiggle room in negotiating.  

    In a better world, I would define "non-discriminatory" to mean that existing cross licenses should be disregarded, as this allows entrenched vendors to preserve their status as against new, smaller companies, who cannot implement the same standards at the same cost.  Of course, under FOSS-C terms, this concern would automatically disappear.

     –  Andy

  39. Vexorian says:

    Wow thanks Matusow, I think your blog post was necessary, else we wouldn’t have seen yet another classical moment in which groklaw kicks ass as much as happened today.

  40. Chad says:

    Y’all seem to have drifted off point.  GPL compatibility (or lack thereof) isn’t why OOXML shouldn’t be a "standard".  The real reason is there are no conforming implementations, and  one can’t be built from the specification.

    That’s not a standard.  At best, it’s a target.

  41. Wayne says:

    Jason,

    I’m going to go off in another direction. You said:

    "Forget the philosophical and ontological debates about software patenting for a moment and just deal with the fact that the law in a number of countries recognizes software patents as valid IP today."

    This is not true. There is no law on the books of the United States that allows for the patenting of software. What happened was that a court ruling widened the areas that patents could be applied to. The legality of this ruling is debatable. There are those who don’t think this ruling went far enough, and there are those who think it went too far.

    But there is no law allowing the patenting of software.

    Wayne

  42. Kelledin says:

    Swashbuckler:

    "I don’t agree that there is an inherent right for there to be a GPL implementation of all standards.  GPL gets to compete along with everything else."

    You’ve just posited a contradiction.  For GPL to compete along with everything else, developers MUST have the right to create, use, and distribute a GPL implementation.

    "You don’t think developers want to influence the direction of the standards that they implement?!"

    Typical developers also understand the need for standards to remain somewhat static.  The point of implementing to a standard is to match implementation behavior, not to modify it.

    Standards MUST be open to implement, and they MUST be subject to clear, strict, predictable revision control.  That’s not hypocrisy or contradiction; that’s simply a real-world requirement for any standard to fulfill its purpose.  In the presence of the GPL, OOXML fails the former requirement, and with the mess Microsoft made of the BRM, it also fails the latter.

    "Perhaps.  I just want the marketplace to decide.  If stds that are IP encumbered repeatedly fail then stds orgs will adapt."

    IETF has already adapted (witness the rejection of SenderID).  So has W3C.  ISO can either get with the times or pass into irrelevance; it looks like they’ve chosen the latter course.

  43. Kelledin says:

    Jason:

    "Before you get your hair in a knot over this, consider for a moment that all Linux distributions come with code licensed under reciprocal licenses that conflict and (in theory) should block the distribution of the software. Oops, no one seems to care about that snag."

    Unless you can provide clear examples, I would have to say this is patently false.  RedHat/Fedora and Ubuntu (the most popular Linux distributions) are known to take great and painful steps to avoid this sort of situation.  Case in point, these distributions exclude many multimedia codecs, specifically because some patent clause, DMCA quirk, or corner-case of IP encumberment conflicts with OSS licensing.

    Swashbuckler (one last detail):

    "Well researched?!  LOL!

    She went and found references from a bunch of free software advocates.  It’d be like Jason citing Bill Gates and Steve Ballmer as backup for his views."

    She went and found references from very well-respected college professors, legal authorities, researchers, and various other academia.  She also quoted BSA whitepapers and BSA lawyers.

    Passing off well-qualified experts from the uppermost echelons of higher education as just "more of those FOSS kooks" is a surefire way to make a fool of yourself.  Passing off the BSA as one of those parties is even worse–it suggests you didn’t even bother to read PJ’s post before you made a pretense of rebutting it.

  44. NinjasHatePirates says:

    Both sides of this issue of have strong opions.  It makes it hard for us in the middle to play nice with both sides.

    1.) The GPL is viral, likewise restrictive policies on IP is also viral. Monsanto’s policy regarding genetical engineered seeds is almost  a literal example of IP gone viral. Where ever there seeds grow, you are infringing on their IP, unless you have paid them. Even if the seeds have blown into your field as was the case in Monstanto V Schmeiser.

    2.) The OOXML does not allow a software developer or end user to be vendor agnostic A full implementation of the specification can only been done by Microsoft. Likewise, Microsofts version will have the greatest combatablity. This does not allow for Write Once-Read Anywhere, the core accomplishment that the standard would wish to achieve.

    3.) Areas of the OOXML specification covers external IP that is not covered  by the licensing in a full impletemation. This creates a barrier to entry for a small company with a great idea and limits innovation to those that can absorb the cost of potential litigation.  

    4.) Having heard Eblen Moglen speak on the topic of "free software" , it is clear that the concept is free as in "freedom" not as in "beer." I have paid for my share of "free" software in the past, the advantage of being able to validate that the code is written correctly and address areas where is wasn’t, has made the worth more then the cost. With close source the cost is increased if it doesn’t perform as specified.

    5.)No arguement realistically is 100% right or wrong for any given situation. Jason and his sock puppet Swashbuckler would be aurging the other side if the vote didn’t go in Microsofts favor.

    Standards exist so normal people can get stuff done.

  45. Swashbuckler says:

    Kelledin,

    "You’ve just posited a contradiction.  For GPL to compete along with everything else, developers MUST have the right to create, use, and distribute a GPL implementation."

    It’s not a contradiction at all.  GPL is competing in the marketplace, not necessarily on every possible piece of software.  If GPL (or any other license for that matter) imposes certain restrictions on itself that keeps it from competing, then it might lose in the marketplace.

    "Standards MUST be open to implement"

    Why?

  46. Swashbuckler says:

    KelledIn,

    "That’s not hypocrisy or contradiction; that’s simply a real-world requirement for any standard to fulfill its purpose."

    Really?  When did this "real-world requirement" come into existence?

    You see, there have been literally thousands of successful standards that have not been "open."  For some reason, I get the idea that you and most of the others who are claiming that standards MUST be open really only became aware of standards when MS started pushing OOXML.

  47. quux says:

    Here’s a succinct dissection of PJ’s article "What is Wrong with RAND?" …

    1) Quotes Seow Hiong Goh saying GPL is incompatible with any RAND  licensing that requires either a) payment or b) restriction of sublicensing or reciprocity. Take careful note of the fact that Goh is saying GPL is incompatible with *some* RAND licensing agreements; not *all* RAND licensing agreements.

    2) For the rest of the article, the above problem with *some* RAND will be presumed to apply to *all* RAND.

    3) "It’s no more fair for Microsoft to demand the GPL and other FOSS licenses stop being what they are than it would be for FOSS to demand that Microsoft has to go GPL." Keep this PJ quote in mind, even as in the next sentence PJ accuses MS of trying to compel GPL to become more proprietary, yet providing zero evidence to support this claim. Keep it in mind when later she asks "So why not fix the OSP to let the GPL in too?" in the same paragraph where she castigates MS for "deliberately" excluding GPL.

    4) She claims that OSP discriminates against GPL, then makes a bogus case as to *how* it does so (because it does not).

    4a) One sentence puts OSP and "patent license fees" together, even though OSP specifically disavows any patent license fees.

    4b) Claims OSP has restrictions on sublicensing. It completely sidestepes the sublicensing issue, because it grants the exact same license to every user or implementor of that which OSP covers. In pretty much the exact same way the IBM covenant does. As example, she cites Lawrence Rosen, writing in 2004, about another license (for SenderID) which is not the OSP and is in fact much different than the OSP.

    For the reasons above, I submit that PJ/Groklaw’s case (as written in the named article) against OSP and RAND is a sham, and I hope to be forgiven for concluding that it is a deliberate one.

    (PJ, I know you are reading here, so let me say this: the above sentence is very similar to one of yours for a specific reason: when anyone even obliquely suggests that *you* may be biased, you haughtily invoke the right not to be personally insulted, accuse that suggester of being a "turfer" or a shill, and you ban them from your site. Imitation being the sincerest form of flattery, I felt that using your own words way to get this point across without ringing the personal insult bell. After all, for you to claim insult would just be the pot calling the kettle black, wouldn’t it?)

  48. Not So Fast ,Jason says:

    Jason, you wrote:

    "The terms provided for the Microsoft patents in Open XML are legally irrevocable. They are global. "

    Oops, not really, they are not. Software patents are either unenforceable or straight illegal (software is no patentable subject matter) in most countries outside the US despite big corporations lobbying at political levels to force laws that sanction software patentabilty.

    About your fallacy that "patents promote (software) innovation" that is again quite not the case. Microsoft built its empire (and they were innovative at the time) without the need of software patents. Now patents have become more interesting to your employer quite in order to prevent new players and competition and as a very high entry barrier to the software market.

  49. Joel Stobart says:

    Jason/Swashbuckler,

    As I understand it:

    1) The biggest competitors to Microsoft for Office installed on Windows, and Linux are Open Office, Abiword, etc which are GPL* software. (There are more who aren’t I know).

    2) Reasonable and non-discriminatory refers to the marketplace within which the standard operates. The term is contextual to the market in which the standard operates.

    If this was just a slugging match between Apple and Microsoft, there would be no argument here. As it is, the competition is likely to be from GPL Software, therefore it matters whether GPL can implement these patents.

    If GPL wasn’t important  Microsoft would not have a question "Is this Promise consistent with open source licensing, namely the GPL?" Especially as it doesn’t answer the question. By looking at GPL individually with respect to the license they have accepted the import of it.

    If Microsoft are gaming the Standards Process to exclude GPL**; I would imagine this will be handled strongly by the European Commission.

    kind regards,

    Joel Stobart

    ps. Swashbuckler, I see you on lots of forums talking very positively about OOXML, but I dont know who you are? would you care to enlighten me?

    * from the family GPL

    ** as described so eloquently "I don’t agree that there is an inherent right for there to be a GPL implementation of all standards."

  50. Julia says:

    PJ wrote:

    >"…the real anticompetitive issue surrounding OOXML — that Microsoft’s only real competitors can’t use the license for OOXML. And Microsoft knew it when it published it.

    I would further add: This was the only real reason that Microsoft EVER had for pushing through OOXML as a standard: To get ISO recognition for a standard that eliminates their ONLY real competition based on patent incompatibilities.

    That the patent promise reads exactly as it does is proof enough of this for me.

  51. Richard says:

    From a Swashbuckler comment:

    "Yeah, and how much does ISO charge for standards?"

    You could try asking Microsoft.

  52. Neil says:

    As a long-term Windows developer and Office integration SME can I say how bored I am by these games and Microsoft’s increasing arrogance.

  53. hAl says:

    Actually Pamaela Jones in her post is missing a big point.

    The OSP licensing is much more then RAND licensing. It is also free licensing.

    In the article PJ cites Dan Ravicher of the SFLC who claims that RAND licensing is at odds with FOSS UNLESS the RAND licensing is royalty free.

    Stangely PJ concludes then that there is a problem with OSP RAND licensing but actually OSP is a free license as well and thus that argument is completly.

    The only isssue with RAND licensing is really the sublicensing issue but actually this applies tot any patented technoly and any patent license.

    If patented technoly were sublicenseable by GPL3 then it would mean that any GPL implementation of a patented technolgy could be transfered to anyone anywhere making the patent void.

    Thus GPL3 is not just incompatible with RAND licensing but is incompatible with any patent licensing.

    Amusing conundrums for Groklaw readers:

    IBM has put a RAND licensing of their patent on OpenDocument in their Interoperability Specifcation pledge.

    Does this mean that OpenDocument licensing under GPL3 is no longer allowed ?  

    If Microsoft were to aid in development of OpenDocument (as many FOSS community member have suggested they should have done) and would have extended their OSP licensing to OpenDocument would then the FOSS community no longer be allowed to implement OpenDocument under GPL ?

    Most of the W3C standards have royalty free licensing on patents only (W3C does not require non discriminatory licensing but only royalty free licensing). How would GPL3 be compatible with licensing stamements on W3C standards that are not even RAND ?

  54. hAl says:

    [quote]In the presence of the GPL, OOXML fails the former requirement, [/quote]

    Actually that is not correct.

    Office open XML is actually a covered specification under OSP and therefore fully protected under OSP patent rights licensing.

    The problem with OSP is actually not with IP rights on the covered specifications themselfs but the sublicensing outside those covered specifications.

    So the OSP licensing for Office Open XML does not apply to OpenDocument implementations and reusing GPL code from an Office Open XML implementation in a ODF implementation does not transfer those patent rights to the ODF implementation because ODF is not covered by Microsofts OSP covered specifcations.

    The same for OpenOffice code reused in an Office Open XML implementation. IBM patent pledge only applies to the OpenDocument and you can’t transfer those IBM patent rights from and ODF implementation to an Office Open XML implementation using GPL licensed code.

  55. Jason says:

    "Before you get your hair in a knot over this, consider for a moment that all Linux distributions come with code licensed under reciprocal licenses that conflict and (in theory) should block the distribution of the software. Oops, no one seems to care about that snag."

    Nobody cares about the snag, because no such snag exists.

    (Hint to Jason: Microsoft’s own marketing/propaganda/FUD department isn’t the most reliable source regarding of information on Microsoft’s worst nightmare in its entire history: open source software, and its licensing)

  56. Stefan G says:

    Jason:

    > the idea of conformance testing is anethma(sic!)  to OSS coding pracitces(sic!) as well

    You seriously need to look into how FOSS is actually developed these days. There is nothing in the bazaar development model that rules out the use of strict conformance testing, code auditing and quality assurance. In fact, I would argue that most successful and large FOSS projects have a very strong structure and leadership, and the quality of the code speaks volumes of the quality of the development process. Open source and free software development does not necessarily mean anarchy.

  57. Ken (zman) says:

    Jason,

    RAND terms are open to interpretation to a rather large degree. Based on the facts clearly pointed out by Groklaw, these terms do appear to be exercised in a very discriminatory way in MS hands.

    RAND terms do not have to be interpreted in a discriminatory way, it is just that MS chooses to interpret, or exercise them, in this discriminatory way.

    If you have facts which support otherwise, then please feel free to bring them up and refute the conclusions drawn at Groklaw. So far you have not convinced us.

    The problem that most of us have with Microsoft is that they say one thing in a public venue, then do the exact opposite behind the scenes. Your employer tends to take what is common understanding of terms and stand this on its proverbial head, creating vast confusion in the marketplace to their advantage–clearly a form of propaganda.

    Most people do not seem to realize that the only story they need to get from Microsoft, to best understand them, is to read their current and past end user license agreements (EULAs). Those are the facts and will bear the conclusions consistent with Groklaw.

    Let me close by asking for your honest opinion on how the ISO process went for OOXML on fast-track. What did you think about this process? Was it fair? Was it properly vetted? Was fast-track the right thing to do?

    Be careful, they are listening to you over at Groklaw 🙂

  58. Kelledin says:

    Swashbuckler:

    > Really?  When did this "real-world requirement" come into

    > existence?

    It’s Standards 101–a common sense requirement for any standard to be usable and successful.

    1) If it isn’t "open" such that anyone can reasonably obtain and use the documentation, people will go and try to conform to it by trying to mimic what others have done, which is a difficult, dangerous, and extremely error-prone way to achieve conformance.  It frequently leads to implementations with serious non-conformance issues.  Forcing others to take this route basically sabotages a prospective standard.

    2) If a standard isn’t "revision controlled", you’ve essentially forced implementors to build a castle on sand.  There’s no way they can successfully implement a "standard" if the ground is constantly shifting under their feet.

    Being able to obtain and use the documentation for a standard royalty-free (as with IETF and W3C) is optimal.  Paying a relatively small up-front fee to get a copy of the standards documentation (as EIA/TIA does) is less palatable, but at least for the EIA/TIA documents I’ve purchased, you’re not restricted in the products you can build and distribute based on the standard.  Crafting licensing terms that outright exclude a large portion of the potential market from being able to use your documents AT ALL qualifies as an "epic fail."

    Also, note that there are levels of "openness" that are sufficient for certain markets but not for others.  You have more leeway with charging royalties for hardware designs simply because implementors have a tangible, unavoidable per-unit cost-of-implementation anyways.  The same is not true of software, so obviously the same definition of "open" no longer fits.  IETF and W3C have recognized this; apparently you, ISO, and Microsoft refuse to do so.

    "It’s not a contradiction at all.  GPL is competing in the marketplace, not necessarily on every possible piece of software.  If GPL (or any other license for that matter) imposes certain restrictions on itself that keeps it from competing, then it might lose in the marketplace."

    GPL is competing specifically on the class of software in question, and it is meant to compete on any piece of software a developer might wish to create.  So far I haven’t seen you, Jason, or anyone else pose a legitimate argument for why things shouldn’t be this way–and pointing to what the US patent system allows, given the horribly broken state it’s in and its limited geographical scope, is a transparent red herring.

    Microsoft can either live with the GPL and let it in, or give up the sham of playing nice with the GPL and face yet more antitrust sanctions.

  59. Swashbuckler says:

    Joel,

    "Swashbuckler, I see you on lots of forums talking very positively about OOXML"

    No, you don’t.  What you’ll find if you truly look is that:

    1. I don’t care about the ODF/OOXML battle directly.

    2. I think that Microsoft and the NBs that were "persuaded" by them to to support OOXML thru fast track at ISO should be ashamed of themselves as they have done great damage to the standards process.  That I *DO* care about.

    3. While I certainly understand the free software community’s dislike/hatred of software patents, I don’t believe that is reason enough to get rid of them.  I believe that they do have a place, it’s just that system is horribly broken at the moment (at least in the U.S.).  Way too many junk patents are granted.  I have similar feelings towards RAND.

    "but I dont know who you are? would you care to enlighten me?""

    I use Swashbuckler as my nom de blog as it were.  I prefer to keep my anonymity as my views probably don’t always align with those of my employer.  I will say that I do not now, nor have I ever worked for Microsoft.  I currently work for a company that both cooperates and competes with Microsoft (that narrowed things down, didn’t it ;-)).

  60. André says:

    The problem with RAND licensing is that there is no universally agreed definition of RAND. RAND is a family of license models. Complicated legal stuff.

    On a global level "reasonable and non-discriminatory" are general clause style provisions which would be interpreted differently depending on the jurisdiction you choose.

    What matters is the license.

    It is better to define precise terms and clearly state what is wanted:

    – uniform fee (UF) vs. royalty-free (RF)

    – licensing requirements, contractual or indemnification/promise

    – additional restrictions? cmp. ISO free of charge definition

    etc. etc.

  61. matt says:

    Swash,

    why don’t you just log back on Jason? Honestly, we get the difference here (aka lack of).

    Additionally, you said

    "drakaan,

    Perhaps.  I just want the marketplace to decide.  If stds that are IP encumbered repeatedly fail then stds orgs will adapt."

    Since when were standards organizations bound to the will of those seeking standards? Just because someone wants anything to be a standard, doesn’t mean it should be/can be/is viable to be one. Once again, I work for a standards company, and we turn down probably 50x more opportunities to create standards than we create/deal with.  

    This has a pretty inaccurate implication here. If patent encumbered standards are the problem, then it’s not the fault of the standard organization, that means there’s something wrong with the standard itself, not that it has to be adapted.

    You can relabel a 4pound trashbag something else to try to get people okay with it, but that doesn’t mean it’s not a trashbag.

  62. rdean says:

    "RAND terms for patents related standards is the norm and has been for years, long before the term "open source" was ever coined.  What you’re asking is that all standards organizations change their IP policies in order to accommodate open source.  "

    The reality is that a standard governed by RAND terms is not open.  It may still be a standard, but it’s not open.  It takes more than simple disclosure to be open.  This was true even before the term "open source" was coined.

    With open source gaining more market traction, it should be expected that standards be open.  Use of standards that bar interoperability through licensing restrictions should be discouraged.  

  63. rdean says:

    "The same for OpenOffice code reused in an Office Open XML implementation. IBM patent pledge only applies to the OpenDocument and you can’t transfer those IBM patent rights from and ODF implementation to an Office Open XML implementation using GPL licensed code."

    You should do more research before making such obviously uninformed statements.  IBM’s patent pledge covers Open Source Software, not just ODF implementations.

  64. Brett says:

    # Swashbuckler said:

    "Brett,

    All of stuff you mentioned has nothing to do with RAND."

    Okay, let me summarise so you might see the relevance:

    RAND has been forever, GPL not quite so but a long time none the less.  let’s look at the Reasonable in RAND.  Microsoft specifically crafted an open looking promise that excludes GPL and therefore it’s biggest competition which in turn allows it to maintain it’s monopoly.  

    Why defend Microsoft by saying RAND existed a long time ago to justify delivberate exclusion of it’s biggest competitive threat now using a hollow promise specifically crafted six months ago?

  65. Thomas M says:

    Regarding 1) You are certainly right that historically RAND existed before FOSS and before software. If the GPL is not mixing with Patents which you agree, is it legitimate to say they need to change the GPL if it is the very foundation of their business model? You imply so by saying it’s the choice of their authors and users. As much as it is the choice of any company to pick a proprietary model and enforce their Software Patents, which is the business model the company you work for is build on. I see this argument pretty much as a stalemate and I don’t think one can argue with historical reasons. If for the latter we certainly would not have a democracy. (At least in the country I live in)

    In my own personal opinion I don’t think Software Patents should be part in an international, supposedly "open" standard, describing something so fundamental as the exchange of electronic documents which will be used by a majority of  businesses and people. No RAND or the Microsoft Open Specification Promise can distract from the fact that mixing up the need for such a standard with intellectual properties seems unnecessary and raises the question for some what the real reasons are. And by doing so, yes it seems some people also feel discriminated.

    tm

  66. Wayne says:

    I don’t know if everyone has seen this blog posting about the change in the Norwegian vote to "Approve", but it does make interesting reading:

    http://topicmaps.wordpress.com/2008/04/18/the-norway-vote-what-really-happened/#comment-5

  67. dan says:

    I wonder if Microsoft will ever tire of blatant misrepresentation of what "open" and "standard" mean.  FUD and spin all you want its still lies.

  68. Fred Mobach says:

    >The terms provided for the Microsoft patents in Open XML are

    > legally irrevocable. They are global.

    In case your term "global" means worldwide you’re badly mistaken. Software patents are at least in Europe excluded by treaty. When are you willing to recognize that laws of the USA are valid within the boundaries of that USA ?

  69. jasonmatusow says:

    I have chosen to simply let this thread run rather than comment back on it. I do have one thing to say to Matt about 8 or so comments above this – I only comment in the blogoshpere as myself, I only do it notifying others of my employer, and I do moderate comments onto this blog only to keep out spam and excessive profanity. Swashbuckler has been commenting on this blog for a long time – let’s keep the rediculous accusations to a minimum.

    As for the rest of this stuff – good conversation. I’m going to post my thougths as my next top level blog post.

    Jason (the one who writes this blog)

  70. Reggie says:

    The GPL fanatics above are asserting that the GPL should be the license by which all things are measured.  My problem with that is this: GPL3 contains clauses that are designed specifically to attack Microsoft, Novell, and TiVO.  I don’t think that a license that contains language whose purpose is to stick it to particular companies can be considered a society-neutral license, rather it’s a license with a political agenda, and as such, is not qualified to be the license by which everything should be measured.

    You want to implement a standard in open source code but don’t think that GPL is compatible?  Well then use a different OSI license, one that doesn’t have a political agenda.  Problem solved.  GPL’s religious and political baggage keep it from being compatible with lots of things, and that’s the fault of the GPL, and more specifically, RMS.

    Which brings up another point.  RMS has stated that GPL3 will be modified in future versions (4,5,6, etc), in order to address injustices that he identifies.  So those saying that GPL is the license that everything should cater to, are essentially saying that everything should cater to the present and future whims of RMS.  This is foolish in the extreme.

    How about this: Rather than make everyone change in order to cater to the GPL, let GPL change a little to cater to the rest of society. I’ve said this before, and I’ll say it again: GPL fanatcis are the most selfish, self-centered, spoiled people that ever lived.  And the above posts complaining that not everyone caters to the GPL proves it.  Never does a GPL advocate even consider the possibility of GPL bending a little to meet the needs of others, it’s always "Our way or nothing!"

    There are plenty of OSI licenses that are much "freerer" than the GPL (since they lack the political and religious baggage of RMS), and those licenses are available for use in cases where the GPL’s own restrictions prevent it from being used.  Check them out!

  71. Brett says:

    On ODF Validation:

    http://www.robweir.com/blog/2008/05/odf-validation-for-dummies.html

    – It turns out ODF does validate and has always validated to the applicable ISO ODF Spec in the various native ODF supporting apps in the wild, Just needed to replace the user and reboot.

    Reggie,

    Microsoft’s most competitive threat is borne of GPL Licensing.  Arguably this is why it enjoys the success and growth in popularity and as a result, why it’s such a threat to MS.  GPL is what’s protected these successful products (such as OOo, Samba, ProgresSQL, Apache and Linux) from the traditional corporate warfare Microsoft excels at (i.e. buyouts, devaluing in the marketplace, undercutting opposition with $0 or negative costs of acquisition, bundling, etc.)  I believe this is why Microsoft has to foray into new areas of impediment such as licensing and carefully crafted incompatible (and of course, Non-political and therefore valid!!) promises to tackle this new phenomenon.

    Anyway, all this flapping about GPL3 is a little lost, OpenOffice.org which pioneers Microsoft’s cashcow threat is licensed under LGPL and this is designed to be wholly more commercial friendly and as you’d put it, less socially isolated yet somehow still falls afoul of Microsoft’s supposed "Promise"

    I know, Maybe we should all just stop trying to choose our own software and control our own computers and just buy Microsoft’s gated solutions.

    That would be easier now, wouldn’t it?

  72. Nicu Pavel says:

    Who cares under what license  OOXML is published ? As a broken standard, which can’t even be rightly implemented by  MS own Office 2007, it will soon have a small note near to his name, reading "deprecated",  "outdated", "old", "broken", "please see…"

  73. PaNiC says:

    Who cares under what license  OOXML is published ? As a broken standard, which can’t even be rightly implemented by  MS own Office 2007, it will soon have a small note near to his name, reading "deprecated",  "outdated", "old", "broken", "please see…"