Top open source lawyer blesses new terms on Microsoft's XML file format

Top open source lawyer blesses new terms on Microsoft's XML file format

Summary: Last week, just before the Thanksgiving holiday got underway in the US, Larry Rosen, the attorney that wrote the book on open source licensing If the Microsoft news wins Google over to the company's file formats, it could be game over for ODF.

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TOPICS: Microsoft
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Last week, just before the Thanksgiving holiday got underway in the US, Larry Rosen, the attorney that wrote the book on open source licensing If the Microsoft news wins Google over to the company's file formats, it could be game over for ODF.and the man who was the Open Source Initiative's first general counsel and secretary, issued a statement that endorsed the new terms under which Microsoft is making its Office XML Reference Schema to developers of all types, including open source developers.  Rosen is one of two lawyers whose endorsement is critical to the open source world's acceptance of what can best be described as Microsoft's most significant olive branch to date; one that apparently means that the open source community is free to develop software that supports the Redmond, WA-based company's XML-based file formats for its Office productivity suite. 

Prior to Microsoft issuing its broadly applicable covenant not to sue, the restrictive nature of Microsoft's patent license to its file formats was enough for open source developers to declare it off limits and thusly, for organizations like the Commonwealth of Massachusetts to standardize on the OpenDocument Format (ODF): an alternative to Microsoft's file formats that's not supported by Microsoft Office. Last Tuesday, Microsoft issued a statement that it would be turning the schema (a.k.a.  file format) over to ECMA (a consortium that stewards several specifications including ECMAScript) and then to the International Organization of Standardization. While the company said that it would follow up with its official legal terms, the open source community remained skeptical.  Then, Wednesday, one day after the announcement, the legal terms were released.  With Rosen's permission to reprint his assessment, here is the full text of Rosen's statement regarding those terms:

I was delighted to learn of Microsoft's recent "Covenant Regarding Office 2003 XML Reference Schemas." This covenant goes beyond anything Microsoft has ever done before. It means that both open source and proprietary software can compete in implementations of these important XML schemas without the threat of patent litigation from Microsoft.

This covenant is at least as generous as the patent licenses for many other document formats and industry standards. It includes protection for Microsoft against patent lawsuits; this is just like the patent defense provisions in many open source licenses. And the scope of their patent covenant, even though it is limited to "conforming" software products, is sufficient to allow open source implementations that can read and write Office 2003 documents. Microsoft's covenant is, to coin a phrase, as fair and balanced as other licenses or covenants we've accepted before. I am pleased to see Microsoft move their patent licensing strategy this far.

Microsoft has offered its specification for standardization by ECMA, an industry standards organization headquartered in Europe. It is important for open source companies to participate in this standardization effort, so that we can ensure that the specification for the standard is itself developed in an open way. If we do that, I'm confident that "conforming" software products will evolve to meet customer needs worldwide without Microsoft having to dictate the scope of that conformance.

The first reaction people will have is, "where's the catch?" I don't see anything we can't live with. We can participate in crafting the standard in ECMA, we can read and write Office 2003 files in open source applications, and we don't have to pay royalties to Microsoft to do so. It's a good start.

Rosen's comments regarding "conforming" software products has to do with what specifically Microsoft has promised not to sue over.   Clearly, Microsoft will not sue if an implementation of its file formats complies perfectly with file formats.  Whether or not that means Microsoft might sue if some software product only partly complies with the file format remains to be seen and is a matter of legal interpretation.  In other words, it's clear from the wording of the covenant when Microsoft won't sue. 

While the move by Microsoft clears the way for open source developers to build conforming applications without fear of reprisal from the Redmond, WA-based company, it still remains to be seen whether or not developers will actually come, or, if ODF has enough market momentum to minimize the relevance of Microsoft's "opening up."  For example, Microsoft also opened up access to its Common Language Infrastructure and the C# programming language (parts of .NET) in hopes of turning them into widely accepted industry standards.  But so far, the industry hasn't really rallied around either.  Microsoft's Office XML Reference Schema will be "entering the market" under similar circumstances.  Whereas Microsoft's Office (and its components) have been around since the 1980's, it has been a vehicle for the company's legacy file formats, not for its brand new Office XML Reference Schema that ODF has actually beaten to the market.  Opponents to ODF have argued that ODF is untested.  But the same can also be said of the Office XML Reference Schema.  And so, the extent to which either garners widespread third-party support remains to be seen.

Ultimately however, the battle for supremacy between Microsoft's Office XML Reference Schema and ODF will probably come down a battle of Microsoft Office's pervasiveness (as a vehicle for its new format) versus any groundswell of ODF support from Microsoft's competition, who's a part of that groundswell, and whether or not collectively they're able to loosen the grip that Microsoft Office has on the majority of the world's desktops (including Macintosh PCs).  While IBM and Sun have been the two key ODF movers and shakers, I can't help but wonder if Google's swing vote is the one with the most potential to affect the outcome.  Recently, Google threw some of its developers' bandwidth at ODF-poster child OpenOffice.org.  Then, more recently, it sent representatives to a recent ODF summit in New York.  If the Microsoft news wins Google over to the company's file formats with whatever plan it is hatching, it could be game over for ODF. On the other hand, Google appears loath to do anything that could brighten Microsoft's future.  To me, watching Google on file formats is like watching Florida in a presidential election.

That summit was also attended by other industry powerhouses IBM, Sun, and Adobe.  But so far, there hasn't been any news regarding how Google or any of those companies may respond to Microsoft's new terms.  For example, according to a blog entry by IBM's vice president of standards and open source Bob Sutor, "I hope this is obvious to all, [IBM is] still very big supporters of ODF." Subsequent blog entries by Sutor here and here make it relatively clear which of the two competing formats IBM will be throwing its weight behind.  However, the entries fall short of saying that IBM won't support Microsoft's formats as a result of the move.  And Google has been completely mum when it comes to whatever plans it might be hatching with respect to OpenOffice and ODF.  Elsewhere in ODF momentum news, Writely, the Web-based word processor that I mentioned in a prior blog entry announced last week that it now include ODF support (this, by the way, is the cool thing about using Web-based software: when the software provider upgrades its software, you don't have to do anything to get the upgrade but press the refresh button).

Another twist on the widespread support front has to do with the aforementioned conformance language because there is no test for absolute conformance.  Although it's not clear whether or not Microsoft would clamp down on partial implementations of its file formats, the fact that Microsoft is promising not to sue those who fully comply without having a test for that compliance creates a fair amount of uncertainty; uncertainty that involves legal risk (or, maybe some legal loopholes).  For example, if a software developer attempted to develop a fully compliant implementation, but it turned out to only be 85 percent compliant, what would Microsoft do? Short of having compliance tests and certifications of the sort that Sun has for third party implementations of its Java Enterprise Edition specification, can Microsoft even enforce its conformance language?

With ODF, on the other hand, not only does the the latitude to go "off-spec" without fear of reprisal make it possible for developers to comply with just a subset of the specification, it also allows for "compliance" with a superset of some or all of the specification (otherwise known as a derivative).  One important point to make is that just because there appears to be more legal latitude with ODF than there is with the Office XML Reference Schema doesn't guarantee that that's the case.  Any patent holder, for example, can appear from nowhere and claim that ODF infringes on his or her patent.  The same goes for Microsoft's Office XML Reference Schema. 

This industry has already seen this sort of thing happen numerous times (Eolas with browser plug-in architectures, British Telecom with Web hyperlinking,  Unisys with the GIF file format, Forgent with JPEG, etc.).  But, setting aside the attractiveness of such latitude from an innovation perspective, it could be the legal risk profile of a particular specification along with the availability of a less risky alternative that impacts the decisions of developers.  That said, the lower risk profile of the Portable Network Graphics (PNG) format for Web images may be proving that legal risk is a non-issue with developers and Web site producers, most of whom continue to use the more risky GIF and JPEG formats in lieu of more legally safe PNG.  For example, as proof that JPEG isn't nearly as in the clear as some people think it is, Research in Motion just last month inked a license with JPEG patent holder Forgent so it could use the graphics format in its BlackBerries.

In addition to how the Microsoft news may affect developer support for the Office XML Reference Schema, it also remains to be seen how organizations like the Commonwealth of Massachusetts will respond to the announcement.  So far, there has been no word from the Commonwealth regarding whether the move by Microsoft is enough to put the Office XML Reference Schema back onto the state's list of standard supported file formats next to ODF and Adobe's Portable Document Format (PDF).  Last month, the state's CIO Peter Quinn told me that if Microsoft fixed its patent license to meet the state's requirements for openness, that the state would reconsider the Office XML Reference Schema for inclusion in its standards. Said Quinn in that interview ,"We would support multiple formats as long as they're open. If Microsoft were to do that, I would expect that we would add it to the list."  Although the connection to the Microsoft news is unknown, Commonwealth state senator Jack Hart has scheduled an "Open forum on the Future of Electronic Data Formats" to take place on December 6, 2005 -- an indicator that that state officials are still feeling somewhat conflicted about standardizing on file formats for the state's public documents.

In other words, the Microsoft news is but another chapter in what I believe to be one of biggest battles this industry has seen in long time -- with more chapters clearly to come. 

Topic: Microsoft

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  • Generating controversy.

    You were right in a past blog about the significance of hair-splitting in this controversy. But I expect that much of the world is interested in a smaller, more substantial range of issues.

    If an organization can run successfully with Microsoft formats, I expect they will do so. Whether formats that only partly match Microsoft specifications are legally permitted is not the sort of issue that keeps many users up at night.

    An observation: advocates of ODF rarely treat the format as a better choice for delivering functionality.
    The closest thing to a non-philosophical claim is the fact that software can be written years from now that will be able to read ODF documents.
    That software will probably be written on a device which also contains a version of Office able to read the current formats.

    In this situation, arguments about how relatively open the Microsoft formats may be are more theoretical than compelling. And advocates for ODF are more likely to be found among Microsoft's business competitors than among those whose primary goal is getting the job done.
    Anton Philidor
    • Backing Down

      Your boys are backing down. This movement away from
      proprietary standards would not have happened without this
      controversy. Do you support this further opening of Microsofts
      XML schema? If not, why do you suppose your champions are
      doing it? Regardless who wins in the day, it is clear that the final
      standard will be much closer to the completely open ideal that
      you saw as unecessary. It is also clear that this movement was
      inevitable and that there is room for more movement. The
      market has enjoyed it's profit cycle. We've arrived, we can make
      all 26 characters dance, the feature set is, if anything, too
      bloated. To put a fine point on it, the work has been done, the
      money has been made. The accrual of this code into a public
      space is what is done for an encore. It's a Gutenberg moment,
      enjoy it.
      Harry Bardal
      • You're right about the core issue.

        Microsoft can't charge much for a commodity product. They're betting they can once again find reasons for organizations and people to upgrade, and charging what each will consider an acceptable price. These formats are part of the effort.

        If Microsoft were prevented from implementing their formats, or if developers saw some reason to be reluctant about using them, then Microsoft couldn't make the case they want to make.

        Developer attitudes have a lot more to do with this than the actions of a few runaway officuials in MA.
        Anton Philidor
    • Why be afraid?

      Why are you and MS afraid of competition Anton?

      Let's see MS support an open format and compete on the merits of Word. No artificial limitations imposed through proprietary "locked-in" formats. Just straight-up competition.

      You seem to be trying to downplay this issue to an extent Anton when it is in fact a huge deal.

      A widely adopted open format for word processing is a monumental threat to MS Office and MS knows it.

      MS has been using tactics such as format lock-in to artificially support what has largely become commodity software. This is typical of a system which claims to be "capitalist" while that system has been purposely corrupted by the abuse of power to stifle competition. True capitalism cannot survive without genuine competition. Of course the usual rhetoric such as "that's just buisiness" or "everyone does it" are not valid justifications.

      My question to you Anton is what financial and/or emotional motivations do you have for so vehemently supporting a software company and the subversion of our capitalist system?
      Tim Patterson
      • Suppose you couldn't see Word's merits...

        ... without the formats that Microsoft is introducing?

        Then you'd need those formats to have "straight-up competition", and any efforts to restrict what Microsoft does with those formats would be anti-competitive.

        You're not opposed to competition, are you?!

        And you wouldn't ask Microsoft to give up control of its formats, even wait to introduce changes until a committee of competitors approved, would you?!

        And you wouldn't insist that everything about those formats be available to competitors to undercut Microsoft by avoiding the huge R & D budget, would you?!

        In sum, you wouldn't create unique rules to hobble Microsoft in order to advantage competitors, would you?!

        Of course you wouldn't.
        Anton Philidor
        • Cooperation not competition.

          [i]And you wouldn't ask Microsoft to give up control of its formats, even wait to introduce changes until a committee of competitors approved, would you?![/i]

          Microsoft once fronted a standard called SOAP to the W3C. It was insufficient to the needs of three competitors: Novell, IBM, and Sun. Microsoft made changes to make the SOAP standard more inclusive and now it is an accepted recommendation. Standards are not about competition Anton. Standards are about cooperation. A creator must cede control to cooperate, else go it alone and not be a dejure standard, which means they lose out on business in the sectors that deman dejure standardization.

          [i]And you wouldn't insist that everything about those formats be available to competitors to undercut Microsoft by avoiding the huge R & D budget, would you?![/i]

          Why not. The competitors are making their innovations available on an equal basis. Those competitors are likewise udercutting their own huge R&D budgets. Standards are not about holding cards close to your vest, but about laying them on the table and cooperating.

          You're so competition-crazed, Anton, you forget what cooperation is about. You're behaving as a tennis player on a jai-lai team - demanding individual competition where cohesive group action is the norm.
          John Le'Brecage
          • Cooperation with /whom/ ?

            [i]Standards are about cooperation. A creator must cede control to cooperate, else go it alone and not be a dejure standard, which means they lose out on business in the sectors that deman dejure standardization.[/i]

            [i]De jure[/i] vs. [i]de facto[/i] standards aside, the problem with going it alone is that you have to go it alone. Unless you can provide 100% of your customers' needs, "going it alone" means that your customers have to go somewhere else.

            That's why Samsung produces standard DRAM (although that lets Micron compete with them), Intel uses standard DRAM [1] (although that lets AMD take advantage of the same vendors), etc.

            Microsoft has a long history of "not playing nice with others" -- they see [b]everyone[/b] as a competitor. That includes third-party developers such as IBM, CA, and lesser-known systems integrators such as SAIC. The troube is, the kinds of enterprise systems that MA-IT (and others; they're just more visible) is contemplating are [u]only[/u] to be available from those third-party developers.

            That leaves MS in a very uncomfortable position: they can either enable "competition" such as CA and SAIC, or they lose the business.

            Sucks to be them.

            [1] Intel tried to "go it alone" with RamBus. Remember how that turned out?
            Yagotta B. Kidding
          • I couldn't have expanded better on the thought myself...

            Thank you, Yagotta. Much obliged for saving me the need to clarify.
            John Le'Brecage
          • TINLC

            BTW, John: we've crossed packets many a time before while I was using other nyms. The clueful know how to get hold of me; I'd love to chat.
            Yagotta B. Kidding
      • Tim, it is open source that is afraid to compete.

        Hmmm, we can't compete in the market place so, hey, we'll make up a new file format and tell the world that is the single reason to cahnge. Not fetures, not function, not any great innovation, just open.

        The fact here is MS was smart enough to nip that argument in the bud and nothing has changed at all, they still have the best Office Suite in the market.
        No_Ax_to_Grind
        • And where open formats are important...

          And where open formats are important, such as in archiving and equal-access government initiatives, OPEN is a selling point: a merit. Sorry No_Axe, but utilizing an open format when the customer is demanding one is competition.
          John Le'Brecage
        • You don't 'get it' Bit

          This isn't about open source.

          This is about Mass (the customer) deciding what they want. MS has chosen not to give Mass what they want and you get bent out of shape because Mass doesn't bend to Microsoft's will.

          In the real world you either give the customer what they want or you lose the sale. Why doesn't the same idea seem to apply here with you and MS Bit?
          Tim Patterson
          • I believe I wrote something to the same effect...

            and the title was:

            Microsoft vs Mass.: What ever happened to 'The customer is always right'?

            http://blogs.zdnet.com/BTL/?p=1903

            db
            dberlind
    • Comparisons

      [i]An observation: advocates of ODF rarely treat the format as a better choice for delivering functionality.[/i]

      http://www.groklaw.net/article.php?story=20051125144611543
      Yagotta B. Kidding
      • The article is forthright about its biases.

        I know I'm in for a difficult read when the author uses "she" and "her" in places where they don't belong.
        Change "anyone who is good at his job" to "anyone who is good at her job", and the author is flaunting political correctness over just communicating a point.

        And the chance the author could be persuasive disappears entirely when I am instructed that I should compare ODF and Microsoft formats based on two criteria: which of the two is simpler(?) and which of the two reuses (is closer to) existing standards?

        So I should prefer the format which does less and has fewer innovations.

        The author has lost my credence very quickly. A known fact would become doubtful in this company.

        Still, sometimes I read for the energy arising from aggravation, and this blatant, simple propaganda was good for that purpose.
        Anton Philidor
        • indeed!

          [i]So I should prefer the format which does less and has fewer innovations.[/i]

          Yes, Anton, I laugh to say: you should prefer the Microsoft format which does nothing and has fewer innovations.

          A file format does nothing, Anton. A file format is a repository for data. You're confusing the data with the programs that operate upon the data. This differentiation is not semantic, Anton. Two programs may operate on the same data and one program may be more powerful than the other. Likewise a single program may implement the same functionality over two disparate formats with no evil done to the underlying data.

          Once we jump from binary data to XML stored data, compatible extension is simple. A properly written parser can ignore what the program cannot process.

          Now, having read both specification for DOCX and ODF, I've not read a single functionality in one that wasn't duplicated in the other. Please, if you see one that isn't in the other, give me the page references and I'll happily re-evaluate. Please, don't respond with guesses and what you read somewhere. Be objective: page numbers, please.

          As for Massachusetts? My hat is off to Kriss and Quinn. They took Microsoft to the brink and scared them enough to crack their formats open. First Microsoft applies for peer review. Now Microsoft opens their license almost as much as Sun's license. Microsoft has only two more hurdles to leap before they can be accepted in MA.

          You'll find you like being able to send DOCX to your OOo-using friends.
          John Le'Brecage
        • Nice spin

          [i]And the chance the author could be persuasive disappears entirely when I am instructed that I should compare ODF and Microsoft formats based on two criteria: which of the two is simpler(?) and which of the two reuses (is closer to) existing standards?

          So I should prefer the format which does less and has fewer innovations.[/i]

          The comparison did not evaluate "simpler," it evaluated "understandable." [1][2] Even so, "simpler" does not imply "does less." In fact, there are innumerable examples of the exact opposite [3].

          Likewise, reinvention of the wheel does not guarantee innovation. For instance, there is no added merit to replacing TCP/IP with a different but equivalent communications scheme and there are considerable costs.

          A point that the comparison should, perhaps, have given more emphasis was the semantic ambiguity of the Microsoft format. Being a non-mixed content schema, the MS format requires a custom parser rather than being parsable using one of the formally provable context-free parsers, for instance.

          This in turn means that any implementation of Microsoft's format will have a long, slow debugging history. The chances of Microsoft's implementation of their own format actually matching the spec is remote; this is usually not a problem for them (thus their usual language on the primacy of shipping code over specifications). If they manage to get their format formally adopted, however, it would be no end amusing should it turn out that MS Office fails to comply.

          [1] My read of all the single-letter tags in the MS namespace is that someone never got beyond original BASIC programming to realize that human legibility is a Good Thing.
          [2] "Understandable" is important in terms of reducing bugs both on initial implementation and in maintenance.
          [3] One classic example is orthogonal vs. non-orthogonal systems, including instruction-set design.
          Yagotta B. Kidding
  • Where's the catch? Well, duh!

    We can now read Office 2003 documents and .... Microsoft is about to release a new version of Office.

    It doesn't take a genius to figure out what's about to happen.
    jinko
    • Well genius, explain it to us.

      Give us your impression of exactlly what the license says or means (like the open source lawyer did.) What, you have never read even the first line? You have no clue what your talking about? Your just rtanting to hear yourself rant?

      I see.....
      No_Ax_to_Grind
      • read the post

        Even though the grand parent post isn't all that well-written, and jinko could have been more polite, you answered something completely different. It's not what the license says, it's what license it's all about.

        I also had the same issue: the lawyer talked about the 2003 schemas... where we are all talking about Office 12's XML Schemas. A typo perhaps? Probably but it seems the article is completely missing the point. Clarification would be welcome.
        nachokb