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

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.