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From "Andrew C. Oliver" <acoli...@buni.org>
Subject Re: Rejection of any ENCUMBERED Microsoft Donation to POI
Date Tue, 15 Apr 2008 02:15:54 GMT
First, thank you nick for the most productive piece of this thread. 
This is a neutral authoritative disinterested legal analysis.

 > Section 3.2 in particular is worth a read, since it does appear to
 > clarify that there is a non-discriminatory, free of charge license on
 > all the Microsoft patents, so we (and our users) are OK. The whole
 > document's only about 10 pages, so I'd strongly recommend that people
 > have a read of it.

no Nick, it specifically addresses my issue in a very negative light. 
See the section on Partial implementation.  In fact it raises another 
issue (OSD #10 http://www.opensource.org/docs/definition.php).  Also 
note that RAND terms are often not compatible or conducive to an open 
source implementation (as the document indirectly addresses elsewhere).

With regards to the part of the Partial Implementation section that 
concerns me read this:

===quote===
It then goes on to state that the grant is applicable only to the extent 
that that implementation (referred to as a 'Covered
Specification') "conforms" to one of the listed specifications. "

...

Limiting the applicability of the promise only to fully compliant 
implementations does not appear on its face to be an unreasonable 
condition, because partial implementations potentially may undermine the 
integrity of the standard or specification. Non-conforming or 
non-compliant implementations may also give rise to unpredictable 
consequences that the parties promulgating the standard or
specification may want, or indeed need, to take action to prevent. 
However, such a limitation may be more restrictive from an implementer’s 
perspective, especially when the lack of ‘full’ compliace is the result 
of programming errors and not as a result of intentional partial 
implementation due to the nature of the device or software implementing 
the specification.

...
===quote===

This means that the OSP does not cover what is currently in the 
repository for instance.  For the OSP to mean anything you have to get 
Microsoft to agree that it *conforms* or Microsoft needs to develop some 
standard for judging conformance (such as a TCK licensed under one of 
microsoft's open source licenses) or Microsoft needs to explain that a 
"best effort" with "bugs" which conforms to the "fullest extent possible 
on the runtime environment" have coverage (meaning they "conform").

There is still an issue we need to resolve.  Microsoft signing the 
CLA-C, appropriately clarifying the OSP, or developing a standard for 
judging "conformance" (which should extend to running POI on devices 
where it is not possible to fully "conform") would satisfy me.

I'm not trying to be intractable here, but POI needs to stay open 
source.  I'm still -1 until the issue is resolved.  I'm comfortable 
reverting it (given GR's statement w/regards to copyright) once this 
issue is appropriately resolved.

-Andy

Nick Burch wrote:
> On Mon, 14 Apr 2008, Andrew C. Oliver wrote:
>> Get explicit clarification on the OSP from an actual lawyer or Microsoft.
> 
> Baker & McKenize, who are a top IP law firm, have actually produced such 
> a report/clarification on the OSP:
> http://www.bakernet.com/NR/rdonlyres/EEE2F422-F747-42CA-9DAA-E72F751A2FFA/0/london_it_openxmlstandardisation_publication_jan08.pdf

> 
> 
> Section 3.2 in particular is worth a read, since it does appear to 
> clarify that there is a non-discriminatory, free of charge license on 
> all the Microsoft patents, so we (and our users) are OK. The whole 
> document's only about 10 pages, so I'd strongly recommend that people 
> have a read of it.
> 
> Nick
> 
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