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From "Andrew C. Oliver" <acoli...@buni.org>
Subject Re: Rejection of any ENCUMBERED Microsoft Donation to POI
Date Fri, 18 Apr 2008 02:06:35 GMT
David Fisher wrote:
> Hi Andy,
> 
> Onto a constructive path:
>  

THANK YOU THIS is the email I was hoping for.

> 
> Let's see if we can move the strategy.
> 
> I think that we should request a few clarifications of the OSP, given 
> our understanding of the following five points.
> 
> (1) The partial implementation question, as Nick suggests:
> 
>> While I am personally happy with using the OSP for a partial and 
>> possibly buggy implementation, I can see that Andy isn't. If we could 
>> get Microsoft legal to make a statement on a "best-effort 
>> implementation of the spec that might happen to have some bugs", in 
>> the same way as they have done for partial implementations of the 
>> spec, that could leave everyone happy and the poi ooxml stuff in the 
>> clear.
> 
> Call this Request #1.
>

I do not have a question about partial implementation except where it 
causes a spec violation.  Say you DONT parse a graphic where you MUST or 
something (like in SVN or a snapshot build or a "we're just not ready 
yet" build).  Or where the spec says you CAN but you DO (so it isn't 
REQUIRED) and Microsoft is the patent holder (and not say UNISYS).


> (2) I would suggest that Microsoft Legal be asked to add to the Q & A[1] 
> a similar statement as for GPL.
> 
>> Q: Is this Promise consistent with open source licensing, namely the 
>> GPL? And can anyone implement the specification(s) without any 
>> concerns about Microsoft patents?
>>
>> A: The Open Specification Promise is a simple and clear way to assure 
>> that the broadest audience of developers and customers working with 
>> commercial or open source software can implement the covered 
>> specification(s). We leave it to those implementing these technologies 
>> to understand the legal environments in which they operate. This 
>> includes people operating in a GPL environment. Because the General 
>> Public License (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 licenses, but based on feedback from 
>> the open source community we believe that a broad audience of 
>> developers can implement the specification(s).
> 
> Call this Request #2.
> 

So long as it says "yes best effort is okay" and not "we won't say if 
best effort is okay".

> (3) I think that the patent situation is covered by this Q & A.
> 
>> Q: Why does Microsoft obtain patents that apply to specifications to 
>> which the Open Specification Promise apply? Is that something that 
>> others do too?
>>
>> A: Microsoft invests a significant amount of resources in research and 
>> development efforts. Like any other company that commits such 
>> resources to creating new technologies, Microsoft seeks to protect its 
>> investment by obtaining patents on the resulting innovations. At a 
>> minimum, patents have value in defending Microsoft with regard to 
>> patent infringement claims made by others. Many patent owners use 
>> their patents defensively to protect themselves against third-party 
>> law suits when they make their patents available under reasonable and 
>> non-discriminatory (RAND or RAND-Z) terms and conditions (including 
>> promises like the OSP).
> 
> Sam's defensive patent argument. is that nothing needs to be done, but 
> that you have provided a patent list and would like clarification that 
> the OSP includes, but is not limited to your list. Perhaps they would be 
> willing to more explicitly list patents.
> 
> Call this Request #3.
> 

A patent list is not required (nor necessarily practical) so long as 
best effort and "efforts necessary to be compatible with client software 
which reads/writes OOXML" would be sufficient.  the "read things that 
are not compliant with the schema anyhow" patent that I referenced (god 
I can't read those any longer I spent all night on that) concerns me and 
I don't think the OSP would cover it for instance as it is not strictly 
speaking "required" to implement the spec but may be inadvertently 
required to be compatible with say word or some of the crappy 
over-priced reporting software out there.

> (4) Microsoft is not going to back out of the OSP.
> 
>> Q: Is this Open Specification Promise legally binding on Microsoft and 
>> will it be available in the future to me and to others?
>>
>> A: Yes, the OSP is legally binding upon Microsoft. The OSP is a 
>> unilateral promise from Microsoft and unilateral promises may be 
>> enforced against the party making such a promise. Because the OSP 
>> states that the promise is irrevocable, it may not be withdrawn by 
>> Microsoft. The OSP is, and will be, available to everyone now and in 
>> the future for the specifications to which it applies. As stated in 
>> the OSP, the only time Microsoft can withdraw its promise against a 
>> specific person or company for a specific Covered Specification is if 
>> that person or company brings (or voluntarily participates in) a 
>> patent infringement lawsuit against Microsoft regarding Microsoft’s 
>> implementation of the same Covered Specification. This type of 
>> “suspension” clause is common industry practice.
> 
> No, Andy, they aren't going to come back later and change their mind and 
> then sue. Are you satisfied on this point? (Of course, if someone snuck 
> in some other non-OSP Microsoft IP it would a problem, but this is not 
> what we are discussing currently, is it?)
> 

So fine the "motivation" question..but don't drag me in to 20 threads 
about this and then say that I send too many mails while criticizing 
that I don't answer all of your points:

Microsoft has demonstrated until now a continued vested interest in 
re-defining open source.  One possible redefinition "Open source is a 
copyright license only, you need an EULA to use all of the IP 
implemented in POI".  I do not care to speculate very deeply but it is 
one way to embrace, extend, extinguish.  I do not want to argue over how 
their good intent protects us because it will devolve into a discussion 
about Microsoft.  I had enough of those at the start of POI and they 
were wastes of time them.  I have not had enough describing just how BAD 
OLE2CDF BIFF8 Escher, etc are and how much they need to die (we can have 
that rant in detail) and on another list on how Vista makes me very 
angry...and please someone make a full multi-platform high performance 
.NET for Linux, Solaris and Windows so I don't have to code Java anymore 
(but someone make a better regexp library for .NET first)... But a "is 
microsoft full of good intent discussion?" no that isn't interesting.

> Nick points to "the legal concept of Estoppel" that they have made this 
> promise, they have acknowledged that they know these activities have 
> occurred, and yet did nothing.

I get it but that's a dice roll.  Then you figure out the things you 
thought they said vs what they said and whether you're willing to play 
the "Make lawyers rich" and by then all POI users will have lost because 
Apache won't have the resources to engage in such a battle.  If we "just 
pull it" as sam says, we'll have inadvertently but avoidably screwed a 
lot of people in the process.  I wish to avoid that.

> 
> (5) Microsoft has acknowledged to their shareholders and the public that 
> they think this will adversely effect their revenue, but may be required 
> to make covenants such as the OSP, due to other reasons such as anti-trust.
> 
> As I pointed out in the earlier response Microsoft has acknowledged that 
> they might need to make such a covenant in a recent filing with the US 
> Securities and Exchange Commission (SEC) Quarterly Filing (Form 10-Q) [2]
> 

but that means little to POI if any thing "we're doing this for minimal 
compliance" is a warning to us.

> ------
> 
> So, I think if Microsoft put clarifications into their OSP FAQ 
> satisfying our, as yet unwritten, Requests #1, #2, #3 we would be 
> protecting all Apache Licensees, not just POI.
> 

I actually only care that it remains distributable under OSD-compatible 
terms, I don't care if it is ASL or BSD or GPL or LGPL or any legitimate 
open source license.

> Assuming these are worded correctly, would the appearance of answers to 
> address our requests on the Microsoft site cause you to remove your -1?
> 

yes of course.

> If that is true then we can proceed by either formulating specific 
> language or by asking to discuss the requests more informally with 
> Microsoft Legal.
> 
> What do we all think?
> 

This would be progress and action and I'd not want to "just get it over 
with", I'd want to help in any way I could.  So long as it resolved the 
issues as you say I'd ATM delay any rash action and in the long run turn 
to a strong +1 and I have uh hum even thought about the XBeans path and 
OOXML and some technical notes I made to offer up if they're helpful.

And I may have...a lil present.

> Myself, I would ask Sam to informally discuss these requests as "issues" 
> and see what their counsel suggests

Again very positive.

> 
> Regards,
> Dave
> 
>> [1] http://www.microsoft.com/interop/osp/default.mspx
> 
> [2] 
> http://www.sec.gov/Archives/edgar/data/789019/000119312508011476/d10q.htm
> 
> 
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