In raising ante on definition of 'open', Sun shuts its critics up

In raising ante on definition of 'open', Sun shuts its critics up

Summary: Just when you thought there was nothing left to say about Massachusetts' recent decision to standardize on the royalty-free OpenDocument Format...

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TOPICS: Patents
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Just when you thought there was nothing left to say about Massachusetts' recent decision to standardize on the royalty-free OpenDocument Format (ODF) as one of the standard file formats that will be used to store and exchange that state's documents (the other format was PDF), along comes news that may not only raise the bar on what it means for a vendor to make its technologies 'open,' it also lays to rest any fear, uncertainty, and doubt that at least one Microsoft blogger may have spread regarding how legally encumbered the specification is.

Earlier today, Sun officially released what it calls the Sun OpenDocument Patent Statement -- a statement that basically amounts to a covenant of patent non-assertion that applies to anyone seeking to create or use an implementation of ODF.  Taken in combination, there are three attributes that make the patent statement unique:

  1. Like previous patent grants by Sun and IBM, it's an irrevocable promise by Sun that guarantees developers and users that they won't be sued for patent infringement when using or developing an implementation of ODF.  In a way, this does most open source licenses one better because those licenses don't explicitly contain patent grants.   Just because something is available under open source doesn't necessarily mean that it doesn't infringe on someone's patent.  Also, to be clear, just because Sun is promising not to assert its patents in this situation doesn't mean that someone else besides Sun won't claim patent infringement. 
  2. Unlike previous patent grants by Sun and IBM, it doesn't list any specific patents.  In other words, it basically says that whatever of Sun's patents an implementation of ODF may "read on" (in other contexts, that would be "infringe on") , Sun will not assert those patents against a user or developer of that implementation.  Whereas other patent grants list specific grants, this non-assertion statement doesn't force developers or users to examine a list of granted patents in order to figure out if they can openly implement some specification (in this case ODF).
  3. Like previous patent grants and like open source, privity is not a requirement.  In other words, users and developers don't have to document their execution of a license with Sun.  Lack of privity (as a requirement) clears the way for sub-licensing -- one of open source's most endearing traits. 

Earlier today via a telephone interview, Larry Rosen, the attorney who wrote the book on open source, told me "he was very pleased" by the development.  Earlier this year, Rosen was a key figure in a call by leading open source and free software advocates to boycott the Organization for the Advancement of Structured Information Standards (OASIS).  Though it's not recognized as an official standards body, OASIS is a consortium designed to facilitate the multi-vendor stewardship of specifications such as ODF.  Not only does Rosen's approval bode well for the non-assertion statement, it's an indicator that open source and free software advocates like what they see in what  could be a new OASIS -- one that's moving more in the direction of the completely royalty-free World Wide Web Consortium.  This wind of change at OASIS comes on the heels of the appointment of Sun's Eduardo Gutentag as OASIS' Chairman of the Board barely two months ago.

In addition to quelling an free/open source software uprising against OASIS, the statement by Sun also sends a clear message to Microsoft blogger and Office Program Manager Brian Jones who, in a blog posted just one week ago, wrote the following:

A lot of folks just seem to assume that since [ODF is] a standard, there are no IP issues and everything is very straightforward. Well, take a look at this: http://www.oasis-open.org/committees/office/ipr.php [Editor's Note: the document at this address has since been replaced with the new patent statement]. Sun seems to be saying that it may have [intellectual property] in the Open Document spec. While Sun says it is willing to provide a royalty-free license, one would still need to ask Sun for a license. The license is not posted. It would be interesting to see, and I'll probably try to see if I can find it. The statement on the site alone reveals that at a minimum, they have at least one condition – you have to give Sun a reciprocal license.

Based on Sun's original disclosure on OASIS' site, I agree that it was probably safe for Jones to assume that the license needed to be documented somewhere (and short of that, you'd need to ask Sun for one). The last thing Jones or anybody could have expected was the sort of unorthodox non-assertion statement that Sun issued.  But even so, the passage by Jones does create a certain amount of fear, uncertainty and doubt about Sun's final intentions.  As it turns out, those intentions were pretty noble and they don't require a reciprocal license.  The only major stipulation that short circuits the non-assertion statement is triggered when someone sues Sun for patent infringement on ODF-related intellectual property.  So, not only should the statement placate those who had their doubts, it should also give the Commonwealth of Massachusetts as well as any other organization considering ODF as a standard an extra measure of comfort.  Kudos to Sun for the move.

Topic: Patents

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16 comments
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  • Sun made its point...

    ... and backed away before resentment arose. Good move.

    Now we know that ODF may infringe on IP. That was Sun's point, and, far from retracting it, the company has received confirmation.

    Remember when Microsoft bought an Unix license, joining Sun? Similar way to make the same point. But Microsoft was resented, and Sun can portray itself as heroic.


    By the way, the "out" of having pdf available for file communication and storage means that MA will not suffer too much disruption from the actions of its officials.

    Given the ease with which files can move in both directions between pdf and Word, and the obvious market for a Word ODF plug-in, MA may be lucky enough to find that the grandstanding proved harmless.
    Anton Philidor
    • In fact

      I've believed from the beginning the resolution to all this will be that someone does create a Word/Excel ODF plugin. I also think that is the best solution. I'd rather only pay for ODF open/save capabilities if I need it than have to pay an extra $20-30 bucks for every copy of Office I buy. I much prefer keeping the base application as simple as possible and having the capability to add on as I need to.
      Michael Kelly
  • This could be an effective shot in the war on software licenses. (NT)

    .
    Update victim
    • Which war?

      I thought the war was on software patents, not licenses. If there is a war on software licenses, then wouldn't the GPL and all other OSS licenses be included on the same side as Microsoft? :)

      Carl Rapson
      rapson
      • Very good question!

        One would think that all licensors would be on the same side in trying to protect their licensed products.

        Now, can you think of any exceptions to that?
        Still Lynn
  • gimmick by SUN to hit Microsoft below the belt

    "Like previous patent grants by Sun and IBM, it's an irrevocable promise by Sun that guarantees developers and users that they won't be sued for patent infringement when using or developing an implementation of ODF."

    What if at a later time SUN comes up with a new document format called NDF and they stop support for ODF. What use is the irrevocable licence.
    It will only be of any use if products using ODF become a major player in the market.

    This gimmick by SUN is just an attempt to hit Microsoft below the belt.
    zzz1234567890
    • How is it a gimmick?

      Sun took some IP that has little or no value to them, and opened it to the free market where it may have substantial value to all vendors (including Sun and, for that matter, Microsoft).

      "What if at a later time SUN comes up with a new document format called NDF and they stop support for ODF."

      Anyone can do that. But why would they?
      Eggs Ackley_z
      • Suppose ODF were to be changed.

        Would it be, could it be changed without Sun?

        By getting the IP to register this way, Sun makes itself essential. By signing a document, Sun keeps open sourcers, who tend to detest property ownership, from feeling resentment.

        It's an honest gimmick, the same way GW Puckett of Tammany Hall could speak of honest graft. (;-))
        Anton Philidor
    • If the world were different...

      ..then we wouldn't be having this discussion. We'd be discussing the way things actually are rather than how they might be *if* things were different.

      >>What if at a later time SUN comes up with a new document format called NDF and they stop support for ODF. What use is the irrevocable licence.<<

      Nothing, that's what if. Sun doesn't need to "support" ODF. It is a published standard that anyone is free to implement and use ; it stands on it's own with no "support", whatever you may mean by that, needed. The irrevocable license is still there and in effect and anyone who wants to use it still can. Case never opened, much less closed.

      What if you hadn't asked this question? Would users be in some danger that Sun *wouldn't* create a hypothetical new format and provide some undefined form of "support" for it?

      Now, go back under the bridge and wait for someone to scare.
      Still Lynn
    • funny - that's what they say about the MSFT license

      This thing about hypotheticals is always a problem. The Open Document advocates are raising the same distrust-based concern about Microsoft's license for their Open Office XML Schemas.

      This rathole has no cheese in it.
      orcmid
    • Really pointless argument

      >>>What if at a later time SUN comes up with a new document format called NDF and they stop support for ODF. What use is the irrevocable licence.
      It will only be of any use if products using ODF become a major player in the market<<<

      The same argument applies to MS as well with the exception that MS is much more likely to do this.

      If this is the best you can do you need to go back on the porch and let the big dogs run without you.

      >>>This gimmick by SUN is just an attempt to hit Microsoft below the belt.<<<

      Or, maybe, it is just Sun's way of letting everyone know that this will not become an issue.

      Seems your argument is a 'gimmick' to shill for MS. Don't fret. It did not work.
      bystander_z
  • OASIS not a standards body?!

    "Though it's not recognized as an official standards body, OASIS is a consortium designed to facilitate the multi-vendor stewardship of specifications such as ODF."

    David, I think I understand what you're saying but are you suggesting that there is a problem with that? Do ANSI, ISO, IEEE, etc. (for examples) work better than W3C or IETF? Specifically, what constitutes an "official standards body"? AFAIK, it's simply a critical-mass of acceptance.
    Eggs Ackley_z
  • Even Better!

    The Sun Patent Statement is a big improvement over their November 2002 IPR statement (which is still there, by the way). It's big in an important way that I missed on first reading: there is no essential/necessary claims restriction. The problem of determining essential claims and looking for a workaround is really burdensome to small developers and makes open-source troublesome at least. Once I got it, I posted this remark to Brian Jones' blog:

    '1. There is a very big deal in the new Sun IPR Statement around the OASIS Open Document specification.

    '1.1 Yesterday in a long note I said, "5. It is the same considered opinion of mine that the Microsoft Royalty-Free license for essential/necessary claims (I never remember which term is theirs, and I can't tell them apart anyhow) in the processing (access or creation) of Office XML formats is indistinguishable from the updated declaration that Sun just added to the OASIS IPR statement for OASIS Open Document. ..."

    '1.2 Well, wait a minute. The new Sun IPR statement (they call it a Patent Statement) has a bigger difference and I stepped over it. The Sun statement is no longer predicated on essential claims (the language used at OASIS). It doesn't matter whether or not there is a workaround to avoid the patent, so long as your software is processing OASIS Open Document format, Sun promises not to press any patent claim it might have, period. That, for open source developers and others is a big deal.

    '1.3 The reciprocity condition still applies (and only bothers people who have patents of their own). The removal of the essential claims condition is a very big deal. Now, all bets are still off if you happen to use some of Sun's IP in processing something else, but that's not new news for any of these IPR statements.

    '1.4 So, when I said this was good work, I understated the situation. Nice job, Sun. '

    - orcmid
    orcmid
    • And better still

      I also missed, on my first reading, that the Sun Patent Statement on Open Document Format IPR also eliminates the reciprocity requirement and uses a simple defensive condition (something Microsoft already did in their Open Office XML patent license).

      Combined with elimination of the essential claims condition, this is a giant opening for people creating software that reads and writes the Open Document Format, with only the patent trolls left to worry about (an invariant condition for writing any software these days).
      orcmid
  • They work differently

    Neither IETF or W3C are so foolish as to designate version 1.0 specifications as "standards."

    The IETF, in particular, has a demanding process by which the first specifications, after approval, must achieve multiple interoperable implementations before they can then be revised and cleaned up for the next stage (the safe-to-adopt point). That stage can persist forever. At some point, if there is really wide acceptance and stability, they'll elevate something to standard.

    In neither W3C and IETF are specifications "born" as standards, and these two processes are considered superior to other approaches at getting practical working standards into the real world.

    It would have been great if something like that were done with the OASIS Open Document process.

    Of course, if you want to talk about widespread acceptance, then there are de facto standards to consider. Like having hundreds of thousands of users of a product around the planet. Something like, uh, well, the Philips Audio CD. Or Kodak C-28 process color negative film. (I bet you thought I was going to say Microsoft Office?)
    orcmid
  • how did I miss this announcement?

    I must have been sleeping...
    debuggist