Promise from Microsoft not to sue over standards

The 'promise' has received a positive reaction from the open source community, amid ongoing scrutiny of Microsoft's competitive practices
Written by Matthew Broersma, Contributor

Microsoft has published a "promise not to sue" for 35 Web services standards, a move that should make it easier for the standards to be implemented in open source projects.

The Open Specification Promise (OSP), published on Tuesday on Microsoft's interoperability page, appears as Microsoft faces ongoing legal troubles over its competitive practices, particularly where it comes to open source software.

"Microsoft irrevocably promises not to assert any Microsoft Necessary Claims against you for making, using, selling, offering for sale, importing or distributing any implementation to the extent it conforms to a Covered Specification," the promise begins.

The open source-friendly terms of the promise notably contrast with those under which Microsoft has offered to license Windows communications protocols, which effectively exclude open source projects, according to critics. Microsoft was obliged to license the protocols under landmark antitrust remedies imposed by the European Commission.

The promise is different in several ways from the RAND (reasonable and non-discriminatory) terms applying to the Windows communications protocols, as well from as the promise given by Microsoft when it helped develop the Web Services standards in the first place, according to standards attorney Andy Updegrove.

For one thing, the promise is "self-executing", meaning the organisation implementing the protocol doesn't have to do anything other than stay within the conditions of the covenant, Updegrove said.

"There is no need for sublicensing," Microsoft wrote in the FAQ accompanying the promise. "This promise is directly applicable to you and everyone else who wants to use it. Accordingly, your distributees, customers and vendors can directly take advantage of this same promise, and have the exact same protection that you have."

Such conditions are "a key requirement of many of the most popular open source licences", Updegrove wrote in an analysis published on his Standards Blog.

Another difference is that all the terms of the covenant are out in the open, instead of being selectively disclosed, Updegrove pointed out.

Microsoft shied away from giving an explicit opinion on the terms' compatibility with the GNU General Public License (GPL).

"Because the 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 licences, but based on feedback from the open source community we believe that a broad audience of developers can implement the specification(s)," the FAQ states.

Nevertheless, the promise appears to be a positive move to encourage the use of standards, according to Updegrove and other industry observers. Prominent open source attorney Lawrence Rosen and Red Hat both issued statements praising the move.

"I see Microsoft's introduction of the OSP as a good step by Microsoft to further enable collaboration between software vendors and the open source community," Rosen stated.

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