Updated: Microsoft clarifies its promise not to sue for OOXML

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5:45 pm ET Feburary 15, 2008 - The question of which unilateral promise from Microsoft is supposed to apply to its Office Open XML format suite was supposed to have been clarified this morning by the company. At least that was the plan, and in the end, the matter may actually be settled, but in the middle, at least, there was more than a little confusion.

Here is the story as we now understand it: Microsoft's position, according to a spokesperson with whom BetaNews spoke this afternoon, is that the company did indeed originally release OOXML under the Open Specification Promise (OSP) in September 2006, as indicated by this blog posting at the time from the company's director of corporate standards, Jason Matusow.

There, Matusow lists OOXML as one of the charter entries listed under the new Promise, and he also specifically distinguishes the OSP from the "covenant not to sue" (CNS) under which other intellectual property had been offered previously.

Any indication that developers may have had in the intervening period that OOXML was actually covered by a CNS and not by the OSP, the spokesperson indicated to us, would be a mis-perception on the developers' part -- including, apparently, some whom we quoted this morning.

The spokesperson indicated earlier this afternoon, in updating our original story this morning, that today's extension of the OSP by Microsoft actually does go one step further, as many were actually expecting: The binary formats for Office 2003 were also added to the Open Specification Promise.

Now developers no longer need to request access to the binary file format documentation in writing or by mail, the spokesperson said; they can now download all the documentation they need directly from Microsoft.

The spokesperson did agree that today's move should clarify any confusion about the matter that developers may have had before.

12:26 pm EST - In another carefully timed move to garner support for its document format still under consideration for an international standard, Microsoft today altered clarified the terms under which use of its Office Open XML format by developers is permitted.

Though it was probably bound to happen anyway, the timing of the move is important: With its Office System Developers' Conference in San Jose this week coming to a close, and with a committee of the ISO standards organization in Geneva set to examine its responses to over 3,500 of its members' concerns, Microsoft moved today to place its Office Open XML document formats under its Open Specification Promise (OSP).

That document, which is unilateral and which Microsoft claims is binding, essentially states that the company will never raise claims of infringement against anyone using the formats and protocols listed -- which now include OOXML -- so long as that person or company doesn't raise infringement claims against Microsoft.

The move probably comes as a response to open source developers who raised concerns well over a year ago that the covenant under which OOXML was being released -- which went by a longer name, but which was also called simply the "Covenant Not to Sue" (CNS), which currently applies to the Office 2003 binary file formats -- wasn't in keeping with the spirit of open source.

A November 2006 letter by the CTO of the Software Freedom Law Center raised that issue at the start of the whole international standards debate over OOXML. "A careful examination of Microsoft's Patent Pledge for Non-Compensated Developers reveals that it has little value," Bradley Kuhn wrote then. "The patent covenant only applies to software that you develop at home and keep for yourself; the promises don't extend to others when you distribute. You cannot pass the rights to your downstream recipients, even to the maintainers of larger projects on which your contribution is built."

While the OSP is more explicit and formal, it also doesn't make any express references to downstream recipients' rights. One reason, some say, is because the specification is a unilateral promise rather than a license.

Microsoft's approach to the issue, expressed in its FAQ on the same page as the OSP, is to leave it to others to decide. "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)," the FAQ reads, leaving open to speculation even the matter of whether the OSP deserves a singular or plural noun. "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," the FAQ continues, "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)."

The company is even leaving open the matter of which specification applies, or which takes precedence -- the OSP or the CNS -- to the general community.

"Some have asked whether we would apply the OSP to Ecma Office Open XML," reads a new portion of the FAQ published just this morning. "We don't know whether some will choose the OSP over the CNS, but we want to make that an option."

Last week, representatives of European Union lawmakers declined to confirm for BetaNews the details of a story that had appeared in the Wall Street Journal. The story claimed lawmakers were investigating Microsoft for allegedly misusing its dominance in office applications to gain favorable treatment for OOXML during the standards process. Evidence of the company's behavior first turned up last August.

What was unusual about this decline is that such investigations in the past have been presented with almost all the production values of a political fundraiser. If such an investigation is indeed taking place, the European Commission may be reserving official comment until after the ISO review process in Geneva.

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