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

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

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: [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.