The MS Covenant Not to Sue: Sending a Mixed Message - Sun's Simon Phipps has some helpful observations on the Microsoft covenent not to sue: In the spirit of contribution, then, here are six observations about their covenant:
1. Patent protection is contingent on a conformant implementation. "Conformant" is not defined, meaning there is uncertainty needing legal advice.
2. There is no provision for partial implementation, meaning true community-based development is not covered until complete.
3. It may well mean that implementation of just a word processor is impossible -- it implies that you have to implement everything (spreadsheets & all) to reach the bar.
4. It is specific to the version currently existing, meaning I can be hooked into supporting it now, but when Office 12 or Office 13 comes out & I update to be compatible with the format in that I can get sued. The covenant Sun uses creates ongoing protection.
5. It does not grant patents to the ECMA standard as it only applies to Office 11 XML. This means a new covenant will be needed for the ECMA work.
6. If the same form of words were used for a contribution to ECMA, then those prototyping the ongoing evolution of the standard as ECMA changed it would lose protection the instant any change was made. It applies only to Microsoft's input, not to ECMA's output. Or maybe they would rather ECMA didn't change anything?Together, these six problems seem to be show-stoppers for open source, no matter how positive Brian Jones or even Larry Rosen may feel about it all -- as David Berlind says, we only know they won't sue what they unilaterally consider to be "conforming" uses. As it stands, I don't think their covenant gives open source developers sufficient confidence to implement the spec it covers, let alone the forthcoming specs that it doesn't. Assuming Microsoft intends, as they say, to open their data formats, we expect to see some further work and clarification to address these issues. I had similar questions, particularly the what-does-conforming-mean question? Why isn't that defined? And if it isn't, how could you ever know where the line is? Phipps writes that it's an issue needing legal advice. But if Microsoft doesn't define it, the lawyers won't know either. And may I just point out in passing that being an ECMA standard doesn't mean it is open? ECMA follows a RAND policy, the terms of which are incompatible with the GPL and most OS licenses. And in a FAQ on Office 2003 XML Reference Schemas, Microsoft tells us something interesting about RAND terms: Q.Are Microsoft's licenses for its Office 2003 XML Reference Schemas RAND?A.While there is no formal definition of RAND (reasonable and non-discriminatory), we believe that all of the terms in our licenses for the Office 2003 XML Reference Schemas are RAND. The patent license, including the defensive suspension clause and all other terms, are terms customarily found in standards-related patent licenses. Catch that? "No formal definition." Or, wiggle room. This ECMA Powerpoint document states that ECMA doesn't define RAND either, and that's not all it doesn't do: IPR Policy Ecma does not:Assess the essentiality of patents for implementation of a standardRegister patents used in standards orDefine the term "Reasonable And Non Discriminatory" (RAND)Instead, members grant (not necessarily royalty-free) licences under RAND terms, by defaultIf, in very rare cases, contributing members do not accept RAND terms, there are several options:Ecma stops the projectParticipants collectively buy the licenseParticipants circumvent the patent by alternative implementations of the standard How reassuring do you find that? Here, the patent covenant not to sue means you don't need to get a license from Microsoft on the schemas, but the point I'm making is that RAND does not equal Open. If anything, the opposite. I believe the requirement in Massachusetts is not just that a format be a standard, but that it be an *open* standard. ECMA in no way speaks to that important requirement, in my view. So, if Microsoft wishes to qualify in a way that won't elicit derision, it still would have some work to do to qualify even if ECMA rubberstamps its application. ECMA describes itself like this: Ecma is driven by industry to meet the needs of industry, generating a healthy competitive landscape based on differentiation of products and services, rather than technology models, generating confidence among vendors and users of new technology. When a standards body says it is "driven by industry to meet the needs of industry", you might want to consider what that means in this context. The Commonwealth is trying to meet the needs of government, not the needs of Microsoft, presumably. ECMA has no such agenda. We won't need to guess as to the result. Novell's Miguel de Icaza writes: Novell will be sending some folks from our Open Office team to the newly created ECMA TC45 working group. We hope to determine if the standard will be open enough and the details complete enough to allow for interoperability. The whole Internet world is watching, so Microsoft will have to be real, or it will become obvious. I asked Marbux to explain Microsoft's covenant to me, and hence to all of us here, and to list everything he sees. If you only have time to read one section, I'd suggest section 3. [Groklaw] I have to wonder how many people are going to end up being fooled by this. Hint if M$ wanted to have a real open format that could have simply adobpted OpenDoc.