Subject: RE: Interesting "almost open source" Microsoft tactic
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Tue, 2 Mar 2004 20:29:45 -0800

FWIW, this is a comment I sent to license-discuss about the Microsoft Office
2003 XML Reference Schema Patent License:

> -----Original Message-----
> From: Lawrence E. Rosen [mailto:lrosen@rosenlaw.com]
> Sent: Wednesday, November 26, 2003 6:48 PM
> To: licensing@apache.org; license-discuss@opensource.org
> Subject: RE: Microsoft Office 2003 XML Schemas
> 
> 
> I have some concerns about the Office 2003 XML Reference
> Schema Patent License.  I shared these concerns with my 
> friends at Microsoft and I want to share them with you too.
> 
> Generally I found the patent license to be a good one, mostly
> because Microsoft has decided to license these patents 
> royalty-free (e.g., zero price).  Other aspects of the 
> license are a little more dicey:
> 
> 1. The Microsoft license requires full compliance with
> Microsoft's specifications.  I don't understand why Microsoft 
> needs to own the specification for such schemas.  Suppose 
> someone wants to use those patents in ways extending or 
> surpassing Microsoft's specifications?  Why should they need 
> Microsoft's approval?  This limitation is not compatible with 
> open source principles under which licensees have the right 
> to create derivative works.  Nor is such a limitation 
> necessary, given Microsoft's market dominance in office 
> applications, to ensure that all implementations will 
> actually support their specification.  What does Microsoft 
> need to fear from broader uses of those patents?
> 
> 2. There is an "advertising" clause that requires that a
> notice be placed in copies of product documentation.  I 
> suggested to Microsoft that a notice in the source code 
> should be sufficient to protect their interests.
> 
> 3. The following sentence seems to me to be incompatible with
> the GPL: "You are not licensed to distribute a Licensed 
> Implementation under license terms and conditions that 
> prohibit the terms and conditions of this license."  But I'm 
> not sure, and I'm not the one to interpret the GPL.
> 
> 4. The Microsoft patent license is not sublicenseable.  This
> makes it very difficult for a downstream licensor to know the 
> terms under which he receives software incorporating the 
> patents.  That is why Microsoft wants the notice (see item 2 
> above).  I'd rather have a sublicenseable license.
> 
> 5. This license contains a termination provision "if you sue
> Microsoft for patent infringement over claims relating to 
> reading or writing of files that comply with the Office 
> Schemas."  This is a broader ground for termination than the 
> license grant.  That's done a lot in open source licenses, 
> but do we want to agree to it in the case where Microsoft 
> owns and controls the specifications for implementations of 
> the patents?
> 
> /Larry Rosen

> -----Original Message-----
> From: Stephen J. Turnbull [mailto:turnbull@sk.tsukuba.ac.jp] 
> On Behalf Of Stephen J. Turnbull
> Sent: Monday, March 01, 2004 10:03 PM
> To: La Monte H.P. Yarroll
> Cc: cnd@knowprose.com; ken_i_m@elegantinnovations.net; fsb@crynwr.com
> Subject: Re: Interesting "almost open source" Microsoft tactic
> 
> 
> >>>>> "La" == La Monte H P Yarroll <piggy@timesys.com> writes:
> 
>     La> I'm still reserving judgement.  Their latest spate of openish
>     La> licenses are much closer to meeting Stallman's definition of
>     La> Free Software than I ever expected from that company.
> 
> Bill can read Shapiro and Varian just like anyone else.
> 
>     La> E.g. it looks like OpenOffice.org will really be able to
>     La> implement fully-compatable file readers for the MS-published
>     La> formats.
> 
> But what good does it do?  Go read Rick Moen on djb's 
> licenses (it used to be 
> http://www.linuxmafia.org/~rick/faq/#djb, but > he's rearranged 
> his site), and then reflect that instead of an honest 
> curmudgeon like djb, a malicious commercial troll controls 
> MSFT patent licensing.  I don't think that without perpetual 
> licensing, and probably sublicensing, too, of patents it 
> really qualifies---MSFT can legally (and successfully, I bet) 
> do to anybody who implements under that license what SCO 
> tried to do with Unix, and what Unisys did with LZW.  AFAICT, 
> YMMV, IANAL, don't shoot me I'm only the piano player, etc.
> 
> It looks to me like MSFT has scored a PR coup here (ie, 
> they've recovered back to "whew, maybe they're not Satan"), 
> but real progress from the point of view of FLOSS?  I'm not 
> holding my breath.
> 
> 
> -- 
> Institute of Policy and Planning Sciences     
> http://turnbull.sk.tsukuba.ac.jp
> University of Tsukuba        
>             Tennodai 1-1-1 Tsukuba 305-8573 JAPAN
>                Ask not how you can "do" free software business;
>               ask what your business can "do for" free software.
>