IP, RAND, Standards, OSP, ISP – the conversation continues…


There have been numerous comments to my last blog posting, as well as a long response from Groklaw. Overall I am encouraged by the conversation as a whole because I think it is touching on some foundational issues.

One of the most challenging aspects to the threads I’ve been reading in the responses to my post (and I see this in the Groklaw post as well) is that many issues are getting squashed together – and that is the very basis of misunderstanding these issues. One more thing, there are a few people who put some really excellent stuff in the comments to my last blog post, and I recommend them as reading. Andy Updegrove’s comment is probably the most thoughtful and thought provoking of the lot.

I’m going to try to pull out some of the most commonly touched on points and themes. This is long…sorry.

Standards and business models

At the core of the discussion both on this blog and over at Groklaw is the question of how evolving business and licensing models blend with the existing standards world. The fact that Free Software as a concept has been around since the mid-late ‘80s (if I remember correctly) is not particularly germane. It was really only following the massive commercial investments of the early 2000s that we see the growth of some very fundamental issues in software business models. (I know there was significant dev work happening in the 1990s – but this is a meta point about the industry.) The hockey stick effect of OSS adoption and real business momentum has brought about the discussions about RAND, GPL, covenants not to sue, etc.

You will get no argument from me on the point that the adoption of FLOSS in big business and small are changing the face of the software industry. But by the same rational point of view, the growth of the overall software industry continued to be fantastic during that same period of time. My concern has always been with people who argue that because the Free Software approach is predicated on certain beliefs, and that it is being used, that everyone should have the same beliefs. I think it is ultimately unhealthy for the industry for everything to shift to a single approach – we are all better off with choice of business models, choice of licensing models, and choice of solutions to acquire for addressing business needs.

(Caution – major simplification here) Standards bodies are meant to be the place where all parties come together in an environment that is safe and beneficial for all participants. And where even those who were not involved in the process, may utilize the output from the process in a safe and beneficial way. Additionally, it is in all parties’ best interests to see sustained contribution of innovations into the various standards orgs (no matter what model they were developed under). Moreover, it has been considered highly desirable to have both standards and solutions compete in the marketplace which pushes innovation and opportunity even further.

So in the discussion of RAND and GPL and even in the case of Open XML and the OSP – I think it is worth considering how it is that GPL implementations may be done. But I disagree if the argument is that they should be done regardless of any consequences to those who do not share the same model. There are ways of building bridges between models – to me, that is the most important place to start.

Free Software Licensing and RAND

I do not want to belabor this point. Groklaw pointed out, as have many others, that Free Software licensing conflicts with RAND. Not just on royalty terms, but on sub-licensing and limitation of scope as well. This is not the end of the world, nor is it a show-stopper (obviously – Unicode, for example, is shipped in Linux I believe). So the question then becomes how do software producers who have an interest in seeing their technologies broadly adopted (even in Free Software implementations) find ways to bridge the gap. Of course, it would be good to see the Free Software community seek to meet in the middle with all parties – consensus helps (IMHO).

ISO and RAND vs. Terms From Vendors

Throughout the comments people are still saying that the JTC 1 RANDz declaration for Open XML is somehow different than other JTC 1 RANDz declarations. It is not. The same rules apply to all specifications – uniformly. ODF and PDF and others are under the same terms. The assertion that Microsoft could somehow “wield” the JTC 1 declaration in a means different from any other contributor to an ISO spec is false. What’s more, the Open Specification Promise goes significantly further than the JTC 1 RANDz declaration and was created to enable the full spectrum of implementations. (Notice Gnumeric has included Open XML support even though it is GPL licensed.)

Vendor Promises – OSP/ISP/CNS

The vendors who are making promises, or covenants, on their IP separate from the terms directly associated with the specification are doing so to build the bridge I spoke of earlier between the traditional IP-holder structures and the Free Software model. We can (and probably should) debate the merits and drawbacks of each of these, but you should first take a step back and recognize that these promises are a positive step in the direction of enabling the highly divergent licensing models to coexist. It is also important to note that while a few of the big players have taken this step (logical because they are the ones holding more patents or who have more directly involved product interests), it is not common practice in the software industry. There are thousands of rights holders who participate in standards, whose contributions merit great respect, and who wish to maintain control of their intellectual property. For smaller software vendors whose business model is dependent upon the direct commercialization of their software, a mandate to exhaust their patent(s) (forget royalties – there are other issues worth considering here) will act as a disincentive for contribution.

Is the OSP from Microsoft global?

I saw this questioned a bunch of times so I think it is worth clarifying. The OSP is a global promise – to everyone, in every country, and in every line of business or personal interest. People are confusing whether or not there is legal recognition of software patents with the reach of something like the OSP. Those are different concepts and worth separating in your thinking.

Should standards orgs change their policies to accommodate free software?

This is a decision that each and every one of the hundreds of standards organizations who handle software standardization will need to consider. There is absolutely nothing inherently bad about working with it or not – it is a choice based upon the charter and membership of that organization.

In many ways, my answer there is a punt, but it is true. My opinion is that effective bridges need to be found, and done in such a way that things remain fair for all parties. Companies that sell software directly must clear their product for patent royalties and other IP considerations before selling it into the marketplace. The standards bodies have IP policies so that their output too is copasetic in regards to IP before people begin to use the specifications (thus the concern about trolls). There is no reason that orgs commercializing Free Software should not respect other’s IP as well.

I think an interesting way to consider this is to take a logical extreme of the argument – what if every standards body mandated Free Software-compliant (not MPL, not EPL, not MsPL…only GPL) licensing terms. What would happen? Some might say we would be one step closer to nirvana as a race. Some might choose to drop completely out of the standards game and seek individual licensing agreements and/or cross-payments etc. to bring their product to market with interop features. Certainly there would be those who would be forced to fracture their product (again, good/bad…all depends) and ship some components separate from others to stay compliant with the source license. Others might pursue a whole raft of SIGs (special interest groups) that are exclusionary and outside of the standards world. Still others…I could go on. To me, that is not a good outcome. I think we are in a better state if standard bodies continue to serve their purpose and be a place with highly competitive parties can come to the table to collaborate on specifications even if they have diametrically opposed business/licensing models. Ultimately, the marketplace will speak louder than licensing mandates.

Should there be multiple licensing schemes?

This is an extrapolation on my part from what I’ve been reading in the comments of my last blog. I’ll first say that it is a moot question because there are and will be multiple licensing schemes. How many OSI licenses are there? And why is that? Because IP holders all have strong opinions about how their IP should be handled. Secondly, I am always a fan of choice…and am nervous when zealotry begins to suggest that any alternate choice is heresy. This leads to a very scary place.

Conflict of reciprocal licenses – was I speaking correctly?

I spoke of the fact that Linux ships with code that has conflicting licensing agreements. And many people asked me to “prove” it. I’ll let you all tell me if I’m nuts. All reciprocal licenses by definition conflict with each other. The GPL claims to cover the “aggregate” product, the CPL/EPL the “component,” and the MPL the “file.” In all cases though, if there are conflicting terms they all say you can’t distribute. So – is there any mingling of GPL, MPL, EPL code in Linux? How about the rest of the licenses purported to conflict with the GPL?

By the way, this is also true for the point that I made about RAND terms on code shipped with Linux today – how about Unicode for example? Last I check, IEEE 1394 Firewire was similarly licensed. There are literally THOUSANDS of RAND-covered specs out there used commonly in operating systems throughout the industry.

Now, on to the leap of faith on the part of my critics – I did not raise this point to spread FUD about Linux. Why can I say that? Because this point has been raised in public events in the past…and it continues to not matter. So my point is something else entirely.

Legal snags like the ones I mentioned only matter if someone presses it in a court case. No one can say if these issues will ever become an issue but that has never stopped a single person from using Linux. So, when people then say that the MS OSP, or IBM’s ISP, or RAND terms, or whatever means that Free Software developers can’t develop something, I find it hard to take seriously when the intent, and all of the materials surrounding these actions speak of building bridges and enabling…not shutting down or threatening. Those same developers are willing to take those exact same issues as no concern on one hand and then scream foul on the other. It’s worth thinking about a bit.

Ending this long post…

Too much here already – thanks again folks for the good comments. We are at an inflection point in the industry…and that is exciting to be a part of. If you are going to comment – let’s shy away from the zealotry, and stay focused on lucid arguments.

Comments (33)

  1. ThonasM says:

    For me the primary intend of the GPL and copyleft is to give the end user freedom and a defined legal field to exercise this freedom. As crappy and limiting as his/her choice in software might by by taking out all normal business practices, but this fundamental right of sharing amongst users is defined in the GPL. It might not have been meant as a business model in the first place but as you said yourself, it was only just recently that this model also took hold in the cooperate world. On something so general as an editable document however, and you got to be fair – Microsoft Office and the file formats it came with was on a majority of windows computers which where sold and advertised to EVERYONE. If the discussion comes to the format of the next generation of Office products, a standard which conflicts with the GPL and if it is only ideologically, can only be suboptimal to the end user. In my opinion, the ongoing discussion about OOXML and the next generation of a defined office format is not only to be discussed in the closed sphere of businesses since the subject is not a standard of a separate and closed market place, but should also include the subset of their users since it is about communication via electronic documents in general. As such I see the GPL as an equal partner amongst businesses and the idea should be subject to protection. Please remember, this is not about competition amongst businesses, this is about freedom of users. These users are also your customers.

    In my own personal opinion I reject the idea of branding a standard I’m very likely to be forced to use by governments and businesses by pushing it through the various official organs necessary and intentionally excluding the user from having their say. A standard with 6000+ pages including legal controversies, being pushed through on the fast track remind me a little to much of how small I am and how I am only the end product to a company. I would have expected from Microsoft as the leading contributor of Software products to the world, to seek open communication with the existing efforts of defining such a standard and finding consensus by including or joining them.

    The recent happenings in the cooperate world from which I might not understand all of it but which sound alarming enough do not comfort me as a user that with the next round, this time I will have a real choice. We have a saying in the country I’m from, burned child fears the fire. I would find it only fair from Microsoft to not only redefine their proposal of an open standard but to put aside business practices for a moment and rethink the image they want to present as a company to their end users.

    In an additional note, in an ongoing process of globalization, an international standard defined by a single company who seeks the path of least resistance to get this standard globally recognized, a standard body who allows and apparently encourages such behavior should be subject to investigation by whatever authority is in charge.

    tm

  2. orcmid says:

    Another great post.  I followed your links and caught up on Pamela’s articles (which I wish were signed so I knew who was speaking), Andy’s comments, and an important contribution from hAl.

    I finally had the coin drop.  

    The common RAND terms, even if royalty-free and not requiring a license (such as the OSP waiver) are tied to necessary claims with respect to a particular specification’s implementation.  

    This creates a problem where code shipped under GPL is liberated for some use that is arguably not the particular specification’s implementation yet somehow falls under the claims of the patent.  This is, of course, a speculative situation, and it is one of those things that, because it is pointed out in black-and-white for us risk-adverse types, suggests impending doom independent of reasonably likelihoods.

    However, there is a way.  As should be well known, there are non-reciprocal licenses thatt are compatible with the GPL.  Look at any THIRDPARTYLICENSEREADME file such as the one included in the Sun Microsystems distribution of OpenOffice.org.  Some of these license, such as the ones relying on the BSD template, are quite generous (but require attribution).  It is appropriate to accompany such licenses with notifications of reliance on the OSP (or one of the other covenants that Microsoft offers) and how repurposing of the code should be undertaken with caution.  

    Now, if there is a way to ensure that the code is not comingled in the GPL’d work that combines it and its usage is clean, there should be ways to navigate this case.  (This would work best with library code, and that seems appropriate under the circumstances anyhow, since the source code could be kept out of the GPL’d distribution but available from the "third party.")

    So, inclusion in a combined work with GPL’d (or LGPL’d) code should be fine so long as a suitable arms-length reliance is maintained in how the combined work is accomplished.  This could work to keep adapters of the GLP’d code out of trouble, and they can determine the appropriate approach to the separate OSP-covered code.

    This won’t help with the idea that all code should be under the GPL, but so long as copyright is an exclusive right of authors and not consumers, I think I will turn a deaf ear on that argument.

    Of course, I am not a lawyer and this is not intended to provide legal advice.  I can see applications that I (whose pockets already have only holes in them) would entertain in this way.  (Actually, I don’t use reciprocal licenses at all, so I am more than half way there.)

  3. jasonmatusow says:

    ThonasM – While I am in agreement about the intent of the GPL for the end-user/end-developer, your point runs a bit astray about the file formats. Open XML and ODF are currently under the exact same terms for ISO. Also, Open XML is being implemented under the GPL today (a point I made in my post). Also, a fundamental point about the standardization of doc formats that I think everyone agrees on today is that it is end users own their data – and that data should be stored in standardized formats. Thus…ODF, Open XML, PDF, et al…are standards. This is a good thing right? This is exactly what you are advocating in your comment.

    As for you as an end user being affected by the length of a specification…I find that a hard leap. Every time you turn on your computer you are using software that is the result of thousands upon thousands of pages of specifications. The reality is you are using the implementations of specs…and that is what really matters to end users. To that end, I have advocated for choice from the beginning of this discussion. You should have the choice of what doc formats you want to use. Translators are out there today…who knows what other means will be out there in the future..the point is that you have choice.

    As for your last comment…I completely disagree. It is a contributed spec (ODF is a contributed spec too, PDF is a contributed spec too.), but the European Commission requested it be standardized, there were >20 companies who worked on the original version in Ecma, there were litierally hundreds who worked on it through the ISO process…how is it you count only 1 involved? That argument escapes me.

    Thanks for the comment –

    Jason

  4. jasonmatusow says:

    orcmid –

    Thanks for the thoughtful comment. Yes, there are many questions that come up as you dig into the nuances of these. Check out this link: http://www-03.ibm.com/linux/opensource/isplist.shtml – it is the IBM Interoperability Specifications Pledge. I’m not sure why they chose to drop their "Definitions" to the bottom of the page, because they contain the most important part. The IBM pledge calls for "fully compliant" implementations. The OSP from MS was designed to enable partial or full implementations. Sun’s does as well. I’m not passing judgement on this, because there are times where a vendor may want to only cover fully compliant implementations.

    Ultimately, this is highly complex from a legal point of view and a lawyer should be helping anyone trying to sift through it.

    To me, it has always been a fascinating combination of philosophy, law, and business that drives this conversation.

    Thanks again,

    Jason

  5. hAl says:

    Both the ‘Interoperability Specification Pledge’ from IBM (on for instance ODF v1.0/v1.1) and Suns ‘Covenant Not to Sue’ suffer from the same issue with GPL as Microsofts OSP licensing

    GPL3 code can be reused outside the limits of those RAND licenses. Any patent protection by IBM and Sun on OpenDocument and from Micrsoft on OOXML will not apply if the GPL code is reused in a project that does not fall under those licenses.

    As Suns covenant only applies to OpenDocument reuse of patent protected code from an ODF code for anything else but an ODF  implementation voids the covenant.

  6. Brett says:

    # hAl said:

    "Both the ‘Interoperability Specification Pledge’ from IBM (on for instance ODF v1.0/v1.1) and Suns ‘Covenant Not to Sue’ suffer from the same issue with GPL as Microsofts OSP licensing

    GPL3 code can be reused outside the limits of those RAND licenses. Any patent protection by IBM and Sun on OpenDocument and from Micrsoft on OOXML will not apply if the GPL code is reused in a project that does not fall under those licenses.

    As Suns covenant only applies to OpenDocument reuse of patent protected code from an ODF code for anything else but an ODF  implementation voids the covenant."

    I still don’t think you guys get it.  Any RAND and in fact, any License has a gray area in legal terms and workability within the chosen licensing terms of the software in use.  It is all just a calculated risk on whether something is implemented or not depending on the developer in question. The big problem everyone has with MS promise and OOXML is that this risk is inherently overwhelming that at some point, Microsoft will take someone, be it a community or alternate vendor to task over patent or licensing infringement.  This fear is totally founded in Microsoft’s well-documented habits, surely I don’t need to provide  anyone with this history. Microsoft has been to court many times and even when they lose a battle, ultimately they’ve won the battle for consumer lock-in or a competitor’s destruction. Word Perfect, Java, BeOS, DR-Dos, etc.  Maybe see this article: http://news.zdnet.co.uk/software/0,1000000121,39388227,00.htm for a better explanation.

    I’m sorry to say but bringing up "But THEY do it and it’s all right for them…?" isn’t much of an argument.  Microsoft has a Looong way to go before this will ever be taken seriously as anything other than a distraction trap.

  7. hAl says:

    @Brett

    "This fear is totally founded in Microsoft’s well-documented habits"

    You mean the habit of having thousands of software implementations using MS Office binary formats and the possibly patented technologies surrouding those formats without ever sueing anybody for violating their related IP rights ?

    And to add to that currently already ssems to have a fairly relaxed attitude towards other MS Office format implementations. Microsoft themselves, having taken the steps towards standardization of their new format,  would not have a leg to stand on in courts when it comes to  Office Open XML implementations.

    It would be 100 times easier for Microsoft to use their patents against for instance OpenDocument implementations like OpenOffice which implemented main format does not fall under their OSP covered specifications.

    Microsofts has had issues with using their dominant market position but actually on IP rights issues they are not an aggressive company. And with their format having been ISO standardized and an irrevocable licensing being in place allowing people to implemnt the format people should be well assured of having no IP rights issues.

    In fact most implementers do not see any troubles. Organisations like Apple, Corel, OpenOffice and even opponents like IBM are already implementing Office Open XML without raising issues about the rand like kind of licensing which they themselves have often been using as well for their participations in standards organizations.

    In fact only a few anti-OOXML minded parties seem to raise the issue because it fits their campaigns.  But non of them have for instance answered the question how to deal with similar issues surrounding the patent licensing of OpenDocument or for instance how it should work if Microsoft were to particpate in ODF as their often claim Micrsoft should have done. I think in that case they would have welcomed OSP licensing.

    When OSP licensing was introduced in 2006 many open source experts called it a very favourable licensing  for Open source:

    Lawrence Rosen, an attorney and lecturer at Stanford Law School, specilized in OSS licensing said:,

    "I’m pleased that this OSP is compatible with free and open source licenses."

    Mark Webbink, a lawyer for Linux vendor Red Hat and currently working for the Software Freedom Law Center said,

    "Red Hat believes that the text of the OSP gives sufficient flexibility to implement the listed specifications in software licensed under free and open source licenses. We commend Microsoft’s efforts to reach out to representatives from the open source community and solicit their feedback on this text, and Microsoft’s willingness to make modifications in response to our comments."

    Standards lawyer Andy Updegrove said the Open Specification Promise was

    "what I consider to be a highly desirable tool for facilitating the implementation of open standards, in particular where those standards are of interest to the open source community."

    It was only after OOXML was added to the OSP licensing, which a lot of ODF supporters did not want standardized, that some people tried to suggest that the OSP would lead to problems with OSS. Strangely enough the OSS community did not seem to have much problem implementing the binary formats that they did not have any licenses for. But now they had, what experts described as favourable licensing for OSS, it would suddenly be called a problem.

    So before OOXML it was a great license for OSS but after OOXML used the license it was suddenly called inconsistent with GPL.

    You sure have some inconsistent people in that anti OOXML community.

  8. matt says:

    Brett, you said "I still don’t think you guys get it.  Any RAND and in fact, any License has a gray area in legal terms and workability within the chosen licensing terms of the software in use.  "

    I think on a fundamental level where there is a gray area people tend to err on the side of caution. This would of course, hinder development and new work to be done. Nobody wants a legal battle. Everyone advises against legal battles. Large companies settle simply due to not wanting a legal battle, etc. This has to be dealt with first and foremost in my opinion,  as the answer to the part about avoiding a legal battle specifically amounts to 1 thing: laziness. Call it "money saving" but the truth is, any business that settles a lawsuit that they are in the right, is lazy.

    As the lawyer put recently on that Monster C&D debacle, which is why we have the issue we have lately I think this was the most significant part of what they said: "The better long-term view would have been to fight against vexatious litigation as a matter of principle." This principle equates to long term value and more business opportunities not only for yourself (as legal gray areas get defined) but also for other businesses.

    When people start standing up for what’s right, we won’t have to deal with the OSP, the IP, the RAND issues, as the OSP is a pledge, not a license, and is merely contributing to the legal gray area and slowing things down.

  9. bugstomper says:

    Jason, you said regarding reciprocal licenses, "I’ll let you all tell me if I’m nuts."  Ok, you’re nuts. Nothing in the licenses applies to including different programs on  the same CD. That’s made very explicit in GPL, for example. There can be conflicts when source code is mixed or code is linked together into one executable. Any software project has to be careful to only incorporate compatibly licensed code, and they do, whether a closed or open source project.

    The bottom line is that the various FLOSS projects are not turning a blind eye to license incompatibilities as you are claiming. Your Unicode example is really reaching. Yes, concern was expressed back in 2003 (http://xml.coverpages.org/ni2003-09-20-a.html), but ISO’s "clarification of their clarification" (http://xml.coverpages.org/ISOReaffirms.html) while not satisfying everyone certainly leaves room for free projects to continue to use the ISO country and language codes in Unicode.

    As for Sun and IBM having similar terms to the Microsoft OSP, there is one big difference: You are correct that the patent promises of all three are similarly incompatible with GPL, but Sun and IBM have both released software implementations under GPL. That automatically makes any patents that they own that are  implemented by their software available for use by anyone who uses that code to make their own implementations. If Microsoft were to release under GPL something that fully implements OOXML, nobody would be complaining about the fact that OSP by itself does not provide compatibility with the GPL. In fact, if they did that, I would bet that only the most rabid anti-Microsofties would claim that OOXML is not an implementable standard.

  10. Ian Easson says:

    Brett says:

    "The big problem everyone has with MS promise and OOXML is that this risk is inherently overwhelming that at some point, Microsoft will take someone, be it a community or alternate vendor to task over patent or licensing infringement.  This fear is totally founded in Microsoft’s well-documented habits, surely I don’t need to provide  anyone with this history."

    You do not apear to be aware yourself of the the "well-documented" history you refer to of Microsoft suing for patent or license infringement.  If you were, you would know that they have never sued anyone for such infringement in their entire corporate history.

    Your comment is just FUD.

  11. jasonmatusow says:

    Ian – thanks for the comment, but MS did sue Belkin proactively over a patent infringement in hardware. That was the only proactive case MS filed. To Brett – your characterization of Microsoft is unfounded from an actual track-record point of view. I know that it was not popular with the Free Sofware community when MS discussed the fact that its patent portfolio covers elements of Linux. But that article doesn’t change the real history and/or actions taken on this front. Rather, the real point is that with that portfolio (sidenote – MS’s patent portfolio is now ranked #1 in scientific merit and overall patent quality) the company has sought to build effective, reasonable, business-bridges. Thus the agreements with Novell, Turbo, et al. IP as a weapon is a bad choice. IP as a means to build bridges is far more productive and efficient overall. Just look at IBM’s $1B+ patent licensing business – it was built without a single proactive suit being filed. (This is no longer the case as they are proactively asserting software patents in litigation now.)

    I am a firm believer in property rights – I think they are foundational to the progress of society. The system could be better..much better…but that doesn’t change the fact that IP (as one element of property rights) has proven to be incredibily important in spurring innovation over the past 200 years or so.

    ThonasM – I received an email that I think is from you with an apology for your post. Please don’t apologize…I love the fact that you commented. Stating your beliefs is never wrong in my book. I don’t have to agree with them, but stand up and say what is on your mind.

    bugstomper (great name) – I think there is more to it. Because of the GPL stating that the "aggregate" is affected, and because of the potential challenges around interfaces, include statements, static links, dynamic links, and a few other items, it is not as simple as something just being shipped on the same media. The point I’m making is not about the conflicts, but about how people treat those conflicts. They ignore them.

  12. andrew says:

    Jason,

    You state in this post that you’re a fan of choice.  Ergo, will Microsoft be implementing a native version of ODF into MSOffice so that people may choose to use that standard instead?

    I believe you’d agree that you’d encourage people to adopt OOXML, so why not reciprocate?  If it is about choice, let your users choose the format.  It is, after all, an approved ISO standard.

  13. hAl says:

    [quote]That automatically makes any patents that they own that are  implemented by their software available for use by anyone who uses that code to make their own implementations.[/quote]

    Actually it doesn’t as those companies have not release their implementations under GPL3 which is the only license that requires the contributors patents to be made availalble together with the code

  14. Sean says:

    Your statement "Legal snags like the ones I mentioned only matter if someone presses it in a court case." is not true. It matters when a monopoly like Microsoft uses these "little snags" about possible IP infringement to scare customers into only choosing their own products or "partner" products where MS gets a cut of the pie.

    Microsoft threatening a court case, whether it is an overt or covert threat, is just as bad as, no wait, it is actually worse than filing a law suit. If they actually filed a suit then there would be the possibility of the competing products to defend themselves. As it is, Microsoft is basically saying to the customers "Nice little collection of documents  you have there… it would be a pity if something were to happen to it, so why don’t you buy a little insurance?"

  15. bugstomper says:

    Jason, if "The point I’m making is not about the conflicts, but about how people treat those conflicts. They ignore them" then you really need some concrete examples to back up that point. In my experience, open source projects are very careful about using only compatibly licensed software when they incorporate third party packages. When the code and the development process are open, people can’t get away with ignoring those issues, as there are people who will notice and who will care.

    To bring it back to your original point, the people who make an issue of the OSP not being compatible with code licensed under the GPL _would_ make an issue if some open source project tried to link code together that has incompatible licenses.

    There is no double-standard there. You probably could not point to any well-known FLOSS project that combines incompatibly licensed software in a way that violates the terms of one of the licenses.

  16. NigelWhitley says:

    You stated "Notice Gnumeric has included Open XML support even though it is GPL licensed". I followed the link and find no reference to OOXML, although both xls and sxc file formats are mentioned. Did you mean by your comment that it included some support in the past but it has been removed, or could you point out where the support is identified ?

  17. Ian Easson says:

    Jason,

    Thanks for your correction about the Belkin case.

    (In my defense, I had in mind software when I made my statement, because that was the context of the discussion.  I momentarily forgot that Microsoft also does hardware, and I actually have never looked into that situation.)

  18. Swashbuckler says:

    Jason,

    I said my piece on RAND and related stuff on the other thread, so I’m not going to address that here.

    Regarding the question on conflicting licensing, on part of it I think you probably misspoke, on another part I think it’s just FUD.

    What I believe was misspeaking was when you wrote "The GPL claims to cover the ‘aggregate’ product".  I suspect you meant "program" and not "product," is that correct?  If not, perhaps you can reconcile that with this from GPLv2 "In addition, mere aggregation of another work not based on the Program with the Program (or with a work based on the Program) on a volume of a storage or distribution medium does not bring the other work under the scope of this License." and this from GPLv3 "Inclusion of a covered work in an aggregate does not cause this License to apply to the other parts of the aggregate."

    What I think is FUD is "So – is there any mingling of GPL, MPL, EPL code in Linux? How about the rest of the licenses purported to conflict with the GPL?"  Yeah, there probably is a little.  And maybe a little copying of source from one license to another too.  Is it enough that the average user should worry about it?  I doubt it.

    Let’s turn it around: Could a few lines of GPL’d code have slipped into a Microsoft product or two?  What processes does Microsoft have to stop this?  Can we be really sure that the processes were always followed?

    See how easy FUD is…

  19. NinjasHatePirates says:

    I think that the important issue that is being overlooked is that once adopted the OOXML or ODF can lead to other inovations in software. Anyone that has had to maintain/convert legacy data on an obsolete format understands to advantages either format provides.

    The concern regarding OOXML is it does not allow you to be vendor agnostic for the full impletation.  Unless I am missing something if you were to use every bell and whistle in the specification, it does require you to accept addtional restrictive licensing. These end up creating "legacy" data.

    I don’t see where addition restricive licensing is required by the ODF.

    I really don’t care about the other stuff. I the only important things is does you product work. It is my data I am intrusting to your standard.

    If I find the ODF broken I can step in and fix it and pass it on.

    If the OOXML is broken as is the case in Office 2007 my only resonable option is not to use it.

  20. Swashbuckler says:

    bugstomper,

    "In my experience, open source projects are very careful about using only compatibly licensed software when they incorporate third party packages."

    Searching Ohloh for conflicts with GPL (http://www.google.com/search?hl=en&safe=off&client=firefox-a&rls=org.mozilla%3Aen-US%3Aofficial&hs=a3i&q=conflict+gpl+site%3Aohloh.net&btnG=Search) yields 10,800 hits.  While not all of those are going to be actual conflicts (probably most aren’t), I suspect an uncomfortably high percentage will be real conflicts.

  21. bugstomper says:

    Swashbuckler,

    You may "suspect" that a high percentage of the Ohioh listings are real conflicts, but as it says on the site, it is an automated search for the license names appearing anywhere in the source tree, not an intelligent evaluation, and

    "This message is merely a warning. There may not actually be any conflict, because the two licenses may not apply to the exact same sections of code. You should review the license requirements for this project carefully, especially if you are using this code for commercial purposes."

    I only tracked down one of the "conflicts", for the Linux kernel, and immediately found a source file with a license section that states:

    "This Software is licensed under one of the following licenses:

    1) under the terms of the "Common Public License 1.0" a copy of which is available from the Open Source Initiative, see

    http://www.opensource.org/licenses/cpl.php.

    2) under the terms of the "The BSD License" a copy of which is available from the Open Source Initiative, see

    http://www.opensource.org/licenses/bsd-license.php.

    3) under the terms of the "GNU General Public License (GPL) Version 2" a copy of which is available from the Open Source Initiative, see

    http://www.opensource.org/licenses/gpl-license.php.

    Licensee has the right to choose one of the above licenses."

    That is not uncommon and triggers a match in the Ohioh search. That search is intended as a way to assist people in finding actual conflicts. It is an example of the transparency in open source projects that makes it less likely that license conflicts would be ignored, more in favor of my point rather than against it.

  22. Ian Easson says:

    NinjaHatePirates said:

    "The concern regarding OOXML is it does not allow you to be vendor agnostic for the full impletation.  Unless I am missing something if you were to use every bell and whistle in the specification, it does require you to accept addtional restrictive licensing."

    You are missing something indeed.  You are just plain wrong.  This matter has been explained repeatedly.  For example, look in this blog’s archives or in the one by Brain Jones.

  23. Ian Easson says:

    NinjasHatesPirates also said:

    "If the OOXML is broken as is the case in Office 2007 my only resonable option is not to use it."

    Ofiice 2007 is fully compliant with the ECMA-376 version of OOXML.  Microsoft that as soon as it can get the job done, Office will be upgraded to be fully compliant with the soon-to-be-published IS 29500 version of OOXML.

    There’s nothing broken.  You must have been reading too much Rob Weir or groklaw.

  24. Sean says:

    Swashbuckler,

    Merely finding references to multiple licenses in the source code does not indicate a conflict. Many contributors release their own code under many different licenses, which they are allowed to do since it is their code and they hold the copyright. If they include comment lines in the sourcecode indicating that they are releasing their piece of code under multiple licenses, it doesn’ t violate the gpl. In fact, if someone stripped out those comments it could be a violation of one of the multiple different licenses that the code was released under.

  25. jasonmatusow says:

    Nigel – in their documentation they discuss (and have spoken publicly about it) that they have implemented Open XML – go into the product documentation on the link I included.

    Swashbuckler – I did misspeak…going to fast. You are right it is not "product" it is "program." The real issue comes down to the word "aggregate" in the GPL, "component" in the CPL/EPL, "file" in the MPL…what does the license purport to cover and who defines what that means. The reason the MPL was applauded when it came out was because "file" was the most clear line to draw for the reciprocal terms. BUt, if the MPL stops at the "file" while the GPL covers that "file" in the "aggregate" then they conflict. I agree also that is not about storing on the same media. It is about static/dynamic links, libraries, include statments, and other mechanisms where the code interacts. I don’t disagree about the "average user" and what they care about. The trouble is, the same folks who will jump up and down and say the OSP causes concerns are then okay with the troubles elsewhere (and I have a feeling that it is not "minor," especially if you think that dynamic links are included in the discussion.

    As for MS and our development practices. We do have significant proceedures and policies in place about code development, licensing in, inclusion, etc. Our M&A teams are aware of the issues, and we provide training for our developers. This is true for most major software firms and large development shops today.

    Thx –

    Jason

  26. Swashbuckler says:

    bugstomper,

    "it is an automated search for the license names appearing anywhere in the source tree, not an intelligent evaluation"

    As I implicitly acknowledged when I wrote "While not all of those are going to be actual conflicts (probably most aren’t)"…

    Jason,

    "the same folks who will jump up and down and say the OSP causes concerns are then okay with the troubles elsewhere (and I have a feeling that it is not "minor," especially if you think that dynamic links are included in the discussion."

    No argument that some people have a double standard regarding Microsoft.

  27. Sean says:

    Jason,

    Do you only respond to comments that you feel you can win an argument with? I made a comment back on April 22, and you have responded to a few other people since then, but you have not come up with a reply to my somment. Are you unable to come up with a counter to my comment, or are you waiting for Mocrosoft’s lawyers or marketing department to tell you  what to say?

    I repeat my original comment below.

    >>>>>>>>

    Your statement "Legal snags like the ones I mentioned only matter if someone presses it in a court case." is not true. It matters when a monopoly like Microsoft uses these "little snags" about possible IP infringement to scare customers into only choosing their own products or "partner" products where MS gets a cut of the pie.

    Microsoft threatening a court case, whether it is an overt or covert threat, is just as bad as, no wait, it is actually worse than filing a law suit. If they actually filed a suit then there would be the possibility of the competing products to defend themselves. As it is, Microsoft is basically saying to the customers "Nice little collection of documents  you have there… it would be a pity if something were to happen to it, so why don’t you buy a little insurance?"

  28. jasonmatusow says:

    Sean – I get many comments to this blog – and I answer some, but not all. I’d like to say there is rhyme or reason to my answering…but there isn’t.  It is certainly not that I am in some way intimidated by your comments or under legal restriction to answer. No matter – seriously, I appreciate your commenting and I’m happy to answer.

    Actually, what I said is true. The examples I gave were only the start of the discussion. I work with attorneys all the time, and it has been explained to me a million times that there are many, many, many aspects to contracts and licenses that are there "in case." And the in case aspect may either be based on someone’s elses actions or your own decision to act in a given situation. Just because someone is infringing in some way does not mean that the rights holders will choose to excercise those rights. This is absolutely the case in the licensing of much of OSS and Free software.

    As for Microsoft being any different than other organizations…you are right that the company bears responsibilities that no other software organization does. But that does not change the fact that the company is a rights holder and operates under the same rules that all other players do. IBM is currently suing a company for attemption to clone their operating system. They are actively trying to shut down the business through patent litigation…in operating systems…yet you find no issue with that because their business strategy on the other end is to support Linux. Do you think for a minute, that the company with the largest patent pool in the world, and with a track record of suing other companies for operating system patent infringements, doesn’t have patents that read against Linux? Or is it that the "snags" like that don’t matter unless pursued?

    I would point to the fact that Microsoft has established reasonable, business-friendly, and certainly workable business relationships with Novell, TurboLinux, Linspire (to name a few Linux companies), and Zend, and JBoss pre-acquisition, and MySQL pre-acquisition to build a bridge between the FLOSS and traditional commercial models?

    So if it is a question of perceptions – then I think you should carefully reconsider your own. Microsoft will compete with products that compete with ours. But our view, and actual behavior, of IP in software is something you might take a second look at.

    I hope that is a good start on answering your question.

    thx

    Jason

  29. Brett says:

    …can’t we post here anymore?

  30. Brett says:

    Thanks, Jason and Ian, you’re both right on the Patent Portfolio and I was obviously investing in my own FUD there… having said that, I had based my recollection on the amount of legal action that Microsoft has been involved in.  More often than not it’s as a result of Microsoft embracing and extending someone else’s technology such as Java (inserting platform specific nuances for Windows that broke the write once, run anywhere philosophy of Java) or licensing conditions presupplanting RealPlayer (again by licensing conditions on Third Party Developers that conveniently precluded OEM installations of competing mediaplayers) see: http://www.realnetworks.com/company/press/releases/2003/dec18.html . Apart from these, following is a handful of articles that aptly identified the Microsoft history I did actually mean to refer.

    The Dark side of Microsoft

    http://www.javalobby.org/java/forums/t96960.html

    “How do you get from gaining a Most Valuable Professional (MVP) award at Microsoft, to be threatened with legal action? Easy, write a useful piece of software, distribute it for free, make it compatible with their free Visual Studio Express, and then wait till Microsoft realises that "useful" goes hand in hand with "free". “

    End Story Header

    This piece talks about and does highlight issues viewed by both sides, if you follow the link to the relevant MSDN blog at blogs.msdn.com/danielfe/archive/2007/05/31/visual-studio-express-and-testdriven-net.aspx , it clearly polarises devs and ISV’s working (so they thought…) with Microsoft. More coverage on this fallout at weblogs.asp.net/fbouma/archive/2007/06/01/look-microsoft-is-working-hard-on-building-a-community.aspx

    Microsoft Sued Over (Lack of) Standards Compliance

    http://www.cmswatch.com/Trends/1097-Microsoft-Sued-Over-(Lack-of)-Standards-Compliance

    “Is lack of standards compliance an anti-trust issue? The Opera folks think so. Yesterday, the Norwegian browser-maker submitted an anti-trust complaint against Microsoft to the European Commission.

    We are filing this complaint on behalf of all consumers who are tired of having a monopolist make choices for them," said Jon von Tetzchner, CEO of Opera Software ASA. "In addition to promoting the free choice of individual consumers, we are a champion of open Web standards and cross-platform innovation. We cannot rest until we’ve brought fair and equitable options to consumers worldwide."

    End Story Header

    This article titled “Microsoft ‘kill switch’ resurfaces in Albany’s Office apps“ which can be found at http://www.infoworld.com/article/08/04/22/Microsoft-kill-switch-resurfaces-in-Albanys-Office-apps_1.html highlights another point, This software released under subscription will stop working and the side effect is these users are unable to edit their ‘Own’ documents until they pay more money to Microsoft… convenient.  The danger with this setup in a world without effective 100% implementable standards and multiple vendors is it highlights just how easy it is for a single vendor to hold a market hostage.  In this article here techdirt.com/articles/20080422/234401923.shtml and here arstechnica.com/news.ars/post/20080422-drm-sucks-redux-microsoft-to-nuke-msn-music-drm-keys.html  proves how easy it is for a single vendor and in particular, Microsoft to leave any form of vendor directed technology investment by the customer and their relevant data useless through vendor disinterest, lack of investment or forced upgrade again leaving users in limbo without any means of exit regardless how important their data is.

    It’s pretty clear that Microsoft is still seen in this light, so back to my point, how is it such a surprise that people who don’t use Microsoft’s software and tools (probably already for a reason) are edgy when Microsoft does what it does to it’s own developer community and users, looking utterly surprised that these Open Source developers aren’t at all trusting of Microsoft’s conveniently incompatible and unreasonable terms laid out before them?  You’re quite right about that double standard, as much as developers do complain about this type of scenario by any company, Microsoft does have this history of entrapment and subversion in the extreme and many can’t help being overtly wary of it, simple as that.

    The point is mute, even Microsoft’s own software doesn’t comply to ISO-OOXML as seen here: http://www.griffinbrown.co.uk/blog/PermaLink,guid,3e2202cd-59a3-4356-8f30-b8eb79735e1a.aspx , here: news.zdnet.co.uk/software/0,1000000121,39388229,00.htm and here: http://www.groklaw.net/article.php?story=20080421091129596 .  and not many analysts believe true MS OOXML compatability will ever be a reality.

  31. Sean says:

    Jason,

    IBM has contributed code to Linux, so the community does indeed have more trust in them when it comes to their patent porrtfolio.

    IBM is also a member of, and have donated patents to, the Open Invention Network (OIN), which is a separate entity that holds patents donated form several sources, and their main goal is to protect Linux from patent lawsuits. The crux of the OIN is that anyone may use the patents in their portfolio as long as you promise to never sue anyone over Linux violating your own patents.

    Why would we think that IBM would sue anyone over Linux violating their patents when the OIN would immediately file against them for patents that IBM originally developed and then donated to OIN? Don’t think that wouldn’t happen either. The OIN now owns those patents, and IBM has signed the pledge to never sue anyone over Linux infringing their own patents and in return has received the ability to use all OIN owned patents in their own products.

    Why doesn’t Microsoft join the OIN and donate a few patents?Come on, they don’t even have to be any very valuable patents, just a sign of good faith and a promise not to sue.

  32. Weddings says:

    There have been numerous comments to my last blog posting, as well as a long response from Groklaw. Overall I am encouraged by the conversation as a whole because I think it is touching on some foundational issues. One of the most challenging aspects