Hi Andy,
Onto a constructive path:
On Apr 17, 2008, at 8:30 AM, Sam Ruby wrote:
2008/4/17 Nick Burch <[EMAIL PROTECTED]>:
On Thu, 17 Apr 2008, Andrew C. Oliver wrote:
Just a thought - does anyone have a contact with Microsoft legal /
with an
organisation that has contacts with Microsoft legal?
I am confident that I could contact them quickly. I have yet to do
so. At the present time, I see no credible imminent threat. In the
absence of such a threat, I would rather us formulate a rational,
reasoned position before we do so. In fact, it is not even clear to
me that we will need to contact Microsoft legal at all.
- Sam Ruby
Let's see if we can move the strategy.
I think that we should request a few clarifications of the OSP, given
our understanding of the following five points.
(1) The partial implementation question, as Nick suggests:
While I am personally happy with using the OSP for a partial and
possibly buggy implementation, I can see that Andy isn't. If we
could get Microsoft legal to make a statement on a "best-effort
implementation of the spec that might happen to have some bugs", in
the same way as they have done for partial implementations of the
spec, that could leave everyone happy and the poi ooxml stuff in the
clear.
Call this Request #1.
(2) I would suggest that Microsoft Legal be asked to add to the Q &
A[1] a similar statement as for GPL.
Q: Is this Promise consistent with open source licensing, namely the
GPL? And can anyone implement the specification(s) without any
concerns about Microsoft patents?
A: The Open Specification Promise is a simple and clear way to
assure that the broadest audience of developers and customers
working with commercial or open source software can implement the
covered specification(s). We leave it to those implementing these
technologies to understand the legal environments in which they
operate. This includes people operating in a GPL environment.
Because the General Public License (GPL) is not universally
interpreted the same way by everyone, we can’t give anyone a legal
opinion about how our language relates to the GPL or other OSS
licenses, but based on feedback from the open source community we
believe that a broad audience of developers can implement the
specification(s).
Call this Request #2.
(3) I think that the patent situation is covered by this Q & A.
Q: Why does Microsoft obtain patents that apply to specifications to
which the Open Specification Promise apply? Is that something that
others do too?
A: Microsoft invests a significant amount of resources in research
and development efforts. Like any other company that commits such
resources to creating new technologies, Microsoft seeks to protect
its investment by obtaining patents on the resulting innovations. At
a minimum, patents have value in defending Microsoft with regard to
patent infringement claims made by others. Many patent owners use
their patents defensively to protect themselves against third-party
law suits when they make their patents available under reasonable
and non-discriminatory (RAND or RAND-Z) terms and conditions
(including promises like the OSP).
Sam's defensive patent argument. is that nothing needs to be done, but
that you have provided a patent list and would like clarification that
the OSP includes, but is not limited to your list. Perhaps they would
be willing to more explicitly list patents.
Call this Request #3.
(4) Microsoft is not going to back out of the OSP.
Q: Is this Open Specification Promise legally binding on Microsoft
and will it be available in the future to me and to others?
A: Yes, the OSP is legally binding upon Microsoft. The OSP is a
unilateral promise from Microsoft and unilateral promises may be
enforced against the party making such a promise. Because the OSP
states that the promise is irrevocable, it may not be withdrawn by
Microsoft. The OSP is, and will be, available to everyone now and in
the future for the specifications to which it applies. As stated in
the OSP, the only time Microsoft can withdraw its promise against a
specific person or company for a specific Covered Specification is
if that person or company brings (or voluntarily participates in) a
patent infringement lawsuit against Microsoft regarding Microsoft’s
implementation of the same Covered Specification. This type of
“suspension” clause is common industry practice.
No, Andy, they aren't going to come back later and change their mind
and then sue. Are you satisfied on this point? (Of course, if someone
snuck in some other non-OSP Microsoft IP it would a problem, but this
is not what we are discussing currently, is it?)
Nick points to "the legal concept of Estoppel" that they have made
this promise, they have acknowledged that they know these activities
have occurred, and yet did nothing.
(5) Microsoft has acknowledged to their shareholders and the public
that they think this will adversely effect their revenue, but may be
required to make covenants such as the OSP, due to other reasons such
as anti-trust.
As I pointed out in the earlier response Microsoft has acknowledged
that they might need to make such a covenant in a recent filing with
the US Securities and Exchange Commission (SEC) Quarterly Filing (Form
10-Q) [2]
------
So, I think if Microsoft put clarifications into their OSP FAQ
satisfying our, as yet unwritten, Requests #1, #2, #3 we would be
protecting all Apache Licensees, not just POI.
Assuming these are worded correctly, would the appearance of answers
to address our requests on the Microsoft site cause you to remove your
-1?
If that is true then we can proceed by either formulating specific
language or by asking to discuss the requests more informally with
Microsoft Legal.
What do we all think?
Myself, I would ask Sam to informally discuss these requests as
"issues" and see what their counsel suggests
Regards,
Dave
[1] http://www.microsoft.com/interop/osp/default.mspx
[2] http://www.sec.gov/Archives/edgar/data/789019/000119312508011476/d10q.htm
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