Standards Law - Latest Comments

Re: Introducing the Open Web Foundation Agreement

lawrencerosen — Thu, 19 Nov 2009 17:46:47 -0000

I posted this comment on the ComputerworldUK site, responding to the following paragraph in Glyn Moody's article:

"Now, IANAL, but it looks to me that this is problematic for licences like the GNU GPL, since it means that rights aren't passed on downstream – something that is absolutely vital for free software's licensing model to function. I look forward to hearing some lawyers' views on this issue."

Why on earth would you prefer to get a sublicense rather than a license (non-assert) direct from the patent owner?

There is no need to be paranoid. You are reading too much into the language of the GPL. You don't need a license--because OWFa gives you an even stronger promise direct from the patent owner--and the GPL doesn't care.

If you try to force the GPL into some legal formalism that requires licenses and sublicenses, you'll get an ulcer and no software. Don't worry. Under the OWFa, the patent owner won't sue you for patent infringement if you implement the specification or use such software.

/Larry

Re: Introducing the Open Web Foundation Agreement

Glyn Moody — Thu, 19 Nov 2009 15:25:43 -0000

Many thanks for those full and helpful comments. I think I follow them (IANAL)...but I wonder how they work in the specific case of GNU GPL'd code. Is it possible to write GPL'd code incorporating stuff released under the OWFa? I appreciate that downstream users of that code will also have a licence from the patent-holder, but I worry that that's not enough for the GPLv3, because:

"Whenever someone conveys software covered by GPLv3 that they've written or modified, they must provide every recipient with any patent licenses necessary to exercise the rights that the GPL gives them." (http://www.gnu.org/licenses....

My reading there is that the person licensing under the GPL must give the patent licence, not somebody else. What's your view?

Re: Introducing the Open Web Foundation Agreement

drudin — Wed, 18 Nov 2009 11:50:29 -0000

Glyn Moody raised a few questions about the OWFa on his blog at http://www.computerworlduk..... Since a response to his questions requires more than the 1000 characters his system allows, I wanted to post my response here.
----
Glyn – One of the driving goals of the OWFa was to be compatible with open source and members of various open sources communities were involved in the agreement’s development.

As to the language “a personal promise directly from me to you” that you mentioned, keep in mind that the promise is from “me,” the patent owner, to “you,” which is essentially anyone in the world who makes, uses, sells, or distributes an implementation of the specification. In other words, while you can’t technically pass on the patent rights in the non-assert section to another party, everyone in the world gets the rights under the OWFa anyway. This direct relationship between the patent grantor and each person is also intended to protect the community since it helps ensure that if a recipient of the patent grant sues anyone over their implementation of the specification, the patent grantor can terminate the rights they granted to the party that started the legal action. Legally speaking, this provision is avoiding what’s known as patent exhaustion.
To say this another way, this structure helps ensure that someone who non-defensively sues another person over an implementation of the specification cannot continue to take advantage of the rights granted under the agreement. OWFa is attempting to make a covered specification into a litigation free zone to the extent it can.

I think it’s also worth mentioning that the other section you noted, the royalty free patent commitment, is a right in addition to the patent non-assert. If someone is not happy with the patent non-assert, they can request a more traditional royalty free license. Think of this as a fallback. If you can’t live with the non-assert, you can still negotiate for a license, and in that case OWF leaves it to the patent holder and the recipient to determine those license terms on their own, provided those terms are, to use legal jargon, reasonable and non-discriminatory. This is another safety net for implementations.

From a copyright perspective, the OWFa allows for the creation of derivative works of the specification, provided those new projects provide attribution. From a patent perspective, the OWFa’s patent grant covers new projects to the extent those new projects maintain interoperability with the covered specification by keeping the required portions of the original specification.

This last point is actually very important and one reason why specifications require a different kind of license than source code. Source code licenses tend to be inward looking in that they cover code and what you can do with that code. Specification licenses tend to be outward looking in that they focus primarily on interoperability between different implementations of the same specification. For example, from a source code perspective, it’s fine if you take an Apache web server and tweak or change the code since it doesn’t adversely impact anyone. If, on the other hand, you were to decide to unilaterally change how the server output HTTP, you’d be breaking interoperability with every browser that is expecting to receive the HTTP standard. This would harm the entire ecosystem built around that specification.

The reason people come together to agree on a standard is for interoperability, and often times that agreement is based on any number of compromises. When a patent owner commits to making their patents available for a specification, it’s in exchange for interoperability with other implementations of the same specification. The OWFa tries to strike a balance here. The agreement allows anyone to take the specification and change it any way they’d like, but to respect the compromises and agreements that went into the specification and the ecosystem built around the specification, you can only take advantage of the patent grant for those derivative works that maintain interoperability.

Re: Patent Licensing Assurances in Standards Organizations

Law News — Thu, 14 Aug 2008 04:35:10 -0000

Thanks for the informative post

Re: In-House Counsel Blogs

Cleardocs — Mon, 11 Aug 2008 23:55:45 -0000

Thanks for this list, should make for an interesting read. I am baffled about how lawyers find the time to blog! Cheers.

Re: Standards Law Link Blog Added

probate — Sun, 27 Jul 2008 11:37:57 -0000

I own a number of probate law related websites including:
www.EstateSettlement.com
www.FreeProbateForms.com

I also have a dozen others sites let me know if you want to do some linking together.

Brian

Re: Patent Licensing Assurances in Standards Organizations

Dee Reavis — Fri, 18 Apr 2008 01:11:37 -0000

There are 2 types of patent seekers. One is the corporation using patents to preserve and protect their business. The other is the entrepreneurial inventor, who is seeking his or her fortune by patenting a idea. Only the corporation would likely find a business reason to permit usage of their intellectual property without compensation.

Re: In-House Counsel Blogs

Dominic Jaar — Mon, 16 Jul 2007 21:01:03 -0000

I'm an in-house counsel and a blogger. I've put a post on my blog and would like to know "Why in-house counsels do not blog? Or do they?" ( http://dominicjaar.blogspot... Thanks for helping me!
DJ

Re: Floor Lamps are Not Software

David Rudin — Tue, 10 Jul 2007 18:51:02 -0000

Daniel,

Thanks for your comments. I think you've raised an interesting point about music codecs. Different codecs were developed for different purposes at different times with different technologies. For example, uncompressed WAV is the format of choice for music aficionados, but it results in extremely large file sizes that wouldn't be appropriate for portable devices. Codecs like MP3 trade some quality for smaller file sizes. AAC and WMA have used advances in technology to increase quality without increasing file size. My point is that if we stopped at WAV, devices like the iPod, streaming radio, or low bandwidth voice applications like cells phones wouldn't be nearly as successful or prevalent as they are today. There simply wouldn't be enough disk size or bandwidth to make those applications practicable. Technology needs to progress and competing standards and technologies help make that happen. Locking into a single standard can lead to an dead zone in innovation.

I'd also note that devices like the iPod, Zune, and Sansa support multiple codecs, which solves the codec interoperability issue for most people.

As for Microsoft's patents in OOXML, Microsoft has been very clear that its patents in the spec are covered by the Open Specification Promise, which I've written about before. The OSP allows the use of Microsoft's necessary patents in implementations of the spec on a royalty free basis.

Re: Floor Lamps are Not Software

Daniel — Sun, 17 Jun 2007 16:01:46 -0000

For me, one good test to see whether Microoft as a company is being honest when it says it cares about interoperability is to see how well they've allowed ODF translators to integrate into Office 2007. Right now the translator that they themselves sponsored is only able to integrate their product in an absolutely ugly, klunky fashion. The day MS allows the team they sponsored-- as well as any other teams-- to integrate their translators in a manner that isn't a total pain in the rear for end users is a day I will be much less suspicious about MS's intentions.

Also, the music formats are a great example of what we don't want to happen, and of the benefits of ODF. It would be much better for consumers and for the industry at large if we all had standardization on patent-free, legally-unrestricted formats, like OGG. I recall Microsoft itself felt the sting of patent stupidity when it had to shell out millions for MP3 patents. It's even more difficult for smaller companies to innovate and create new services because they have to worry about file format licensing issues, and they don't have a huge wallet like Microsoft. As a consumer, I don't want to have to deal with the hassle of worrying about different formats; the whole issue is one that was largely imposed upon us by Apple, Microsoft, et al, in an attempt by them to create walled gardens of music services and hardware. The whole inability to play some formats on some players and other formats on other players has been a real pain for end users. So your comparison is actually apt, but I think it argues against your point.

The less legally restricted, the better. Microsoft has been way too vague about MSOOXML and patents, and companies and governments should be worried that MS will be litigious (or threaten litigation in order to extract money from companies) somewhere down the road regarding MSOOXML-related tools. This is probably less likely to happen with ODF-related tools.

Re: Floor Lamps are Not Software

G Fernandes — Fri, 16 Feb 2007 07:14:26 -0000

David

IBM, and many others who believe that user data does in fact belong to the user (as opposed to the application that manipulates it) are supporting ODF simply because it is vendor neutral. Microsoft had ample opportunity to do so.

Your (Microsoft's) format is a mis-leadingly named (intentionally perhaps?) XMLisation of the Microsoft Office document formats. It is not a standard specification - it is a XML conversion of the existing Microsoft document formats. In being that, it is not vendor-neutral. Nor is it implementable by any third party that might wish to implement it.

And, though you may THINK that Brian Jones has addressed technical issues with Microsoft Office XML ( I refuse to call it Office Open XML and indulge in misleading people ), the specification ( I simillarly refuse to call that which is not a standard, a standard - especially with such precedence as ECMA-script, a "standard" which Microsoft used to make web-sites exclusively compatible with IE and a nightmare to view with any other browser ) is rampant with indications of how a feature should be implemented (with pointers to Microsoft Office features) while at the same time being vague about patents covering those features in those version of the implementing software and vague about the implementation itself.

Brian Jones also has no good reason for not using the ISO Date Format or, in fact, ANY of the existing standards that COULD be used to ENSURE INTEROPERABILITY (isn't that what you SAY your format provides? Or are you just pretending?).

What good reason could anyone ever give for making February 1900 a Leap Year?

When you state that Floor Lamps are not Software you bypass the real issue - standardization to promote interoperability.

But then, as was made obvious by Burke and Yates lobbying against the Massacussets State decision to mandate the ODF format, Microsoft seemingly wants to ensure that their format - a single vendor format - remains permanently controlled by them. Neither truly open, nor truly interoperable. Therefore relegating users to be vendor dependent.

That is the sole aim of this sham of a standard - show me but ONE alternative implementation that is NOT Microsoft. On the other hand, ODF already has several credible interoperable implementations - the IBM Lotus Suite, WordPerfect and OpenOffice.

The problem with "lawyers, marketers, business people and lobbyists" - ANY non-technical person for that matter - entering a discussion on a topic they obviously understand less than sattisfactorily is simply this - they are not qualified to understand the problems and therefore not qualified to generalise (as you have done) and judge the situation.

You have clearly not even aware of the tactics (Embrace, Extend, Extinguish) that your very own Marketing department practices.

I'd strongly advise you to indulge in more internal communication before passing judgement on external technical statements. And, while you're at it, try not to categorise technically researched and technically provable flaws as "lobbying". Also kindly note that every individuals opinion is their own and not necessarily that of the Organization that employs them.

Re: Floor Lamps are Not Software

Barton Smith — Thu, 15 Feb 2007 21:12:20 -0000

I don't believe IBM is trying to prevent adoption of OOXML - I believe they're promoting what organizations and governments around the world are already supporting, which is ODF. Same with Google and Sun. I think Microsoft just needs to adapt to a world in which their products are now viewed as inferior to free alternatives - as a result, plainly, of abusing consumer trust. Governments don't usually sue companies that help consumers.

Re: Floor Lamps are Not Software

David Rudin — Thu, 15 Feb 2007 18:18:23 -0000

I believe most, if not all of your questions have already been addressed. A good place to start would be Brian Jones's blog at http://blogs.msdn.com/brian....

I think a point you should consider is why lawyers, marketers, business people, and lobbyists have become involved in what would normally be a technical discussion. While I would very much like to leave the "technical points to technical people," the ODF versus Open XML debate is no longer merely a technical debate.

IBM and its supporters are actively seeking government mandation of ODF throughout the world and hence trying to eliminate choice in document formats. While the technical details of document formats are best left to engineers to debate, when those proponents lobby governments to adopt one and only one technical specification, lobbyists and lawyers become part of the discussion.

Re: Floor Lamps are Not Software

G Fernandes — Thu, 15 Feb 2007 08:13:26 -0000

[QUOTE]IBM wants to prevent that competition.[/QUOTE]

Pardon? Were you born after the DoJs Anti-trust case against Microsoft? Have you not heard of the Halloween documents? Or was that several hundred years before your time?

[QUOTE]Hence, NEMA 14-30 and 14-50 receptacles[/QUOTE]

So do you suggest ODF for real interoperability and OOXML for Microsoft interoperability only? Or what is the point of that comparison? Do you wish to imply that Documents come in two flavors - high-power and low-power?

[QUOTE]The problem is that software standards, which are generally concerned with software interoperability, are different than electrical standards, which govern physical objects.[/QUOTE]

Or at least thats how Microsoft would LIKE them to be - right? So that Microsoft can continue to own users data and prevent interoperability.

If you really wanted to prove that Microsoft is interested in interoperability why dont you answer just the following simple questions?
1. Why did Microsoft not participate in ODF?
2. Why has Microsoft used vague terms throughout the OOXML specification (to the effect that a specific functionality should mimic that which is present in certain archaic versions of Microsoft Office) while not providing concrete specification for behavior?
3. Why has Microsoft chosen to specify bugs in past versions as part of the OOXML standard - see Excel treatment of leap-years which is clearly wrong?
4. Why has Microsoft not re-used widely available and used standards from the W3C and other standards bodies - SVG, MathML, ISO Date Format etc. etc. etc.?

Or, why don't you go back to being a lawyer and leave such geeky technical points to technical people - like Rob - who understand what they're talking about?

Re: DRM and Approaches to Interoperability

David Rudin — Tue, 13 Feb 2007 12:19:14 -0000

In this post, I wasn't taking a position one way or another on DRM. Ultimately, content owners will need to decide how they will distribute their content and what the usage rules will be if they choose to use DRM. My point is that DRM interoperability is not only possible, but is supported by Microsoft technologies.

Re: DRM and Approaches to Interoperability

xtd — Tue, 13 Feb 2007 01:21:49 -0000

David,

Your interoperability arguement falls short unless you plan on putting your new DRM on music cds.

If there is no need to protect cds then there is no need to protect digtal music downloads.

There also no need for yet another Mircosoft DRM.

Re: Back from the DVD CCA

Glen Turner — Sat, 10 Feb 2007 03:58:21 -0000

"By way of background, the DVD CCA is a rather unique organization."

That's understating it. The Australian Consumer and Competition Commission named the CCA an international cartel which exists to promote a anti-consumer region coding scheme.

Re: Patent Damages and Defensive Patents

David Rudin — Wed, 07 Feb 2007 20:22:42 -0000

Luis,

Thanks for your comments. Microsoft is interested in patents for a variety of reasons, including defensive purposes. It does not mean that Microsoft will not enforce its patents if necessary. But, by looking at our track record with regard to patent litigation, our use of patents offensively is exceedingly rare.

It's worthwhile to consider that the patent licensing deals you mentioned were not one way. Just as those companies received patent benefits from Microsoft, Microsoft also gained patent benefits from those companies. Clearly, both sides of the deal appreciated the value of the other's patents and acted accordingly. It's not just about avoiding litigation. It's also about getting access to technology for the betterment of your products and customers.

Re: Patent Damages and Defensive Patents

Luis Villa — Mon, 05 Feb 2007 03:43:33 -0000

I think most reasonable people understand that defensive patents are a necessity, but given MS's track record, you can understand why no one will trust MS further than you can be thrown :) If MS truly is interested only in defensive uses, you could resolve the PR problem by disclaiming offensive uses of your patents, as Red Hat has done. You'll understand why no one holds their breath for that, of course :)

[One might add that Apple, Sun, Novell, and others who have licensed the use of your patents must have had some reason to do so- clearly they thought that there was some threat of offensive usage of your patents? Or is there some other explanation there?]

Re: The RSS Controversy

monkchips — Thu, 04 Jan 2007 11:00:26 -0000

I don't carry a knife or gun when i travel in a hostile environment.

I really dont like the status quo argument. the system is frigged and you're contributing to it. if you want to try and fix it then get real and do something and show *leadership*.

leadership comes from doing something others aren't doing, rather than just following others. your argument boils down to - we like to do things like IBM used to. If you're comfortable with that at Microsoft then so be it.

Re: The RSS Controversy

David Rudin — Thu, 04 Jan 2007 00:43:18 -0000

James,

As I said in my post, Microsoft uses its patents for a number of purposes, including licensing, cross licensing, and defensive purposes. There is no doubt that there are problems with our current patent system and Microsoft has advocated for reform. But until reform happen, we need to work within the current system.

The reality is that Microsoft ships tens of millions of copies of its software. With those distributions comes the risk of infringing third party patents. In addition to the damages that may be incurred is the risk of injunction. In light of the hostile environment, it is simply prudent to obtain patents for defensive purposes. In the case of the RSS related patents, Microsoft is increasingly including RSS related features in its products. Having patents to protect these products, including Windows and Office, is sensible from a legal perspective.

Re: The RSS Controversy

monkchips — Tue, 02 Jan 2007 12:34:26 -0000

on reflection let me push back a lot harder. you have a CEO that signs a deal around patents with an OSS company - then roll out the threats about unspecified infringements the following week. that statement was clearly negative use of IP. its called a chilling effect. come on guys-a bit more context is required if you want to make the nicey nicey claim.

Re: The RSS Controversy

monkchips — Tue, 02 Jan 2007 12:15:30 -0000

its a pretty yucky argument, don and david, if it boils down to defensive positioning - they do so we do. MS should patent what it truly believes is an innovation, after all due diligence is carried out, not just play a numbers game. that would be real leadership. you are all (major patent holders) currently effectively creating patent system denial of service attacks.

also kind of hinky that this patent application came within days of the positive decision to creativecommons license your RSS extensions. but the connection wasn't made at the time.

and sorry don but your argument doesnt wash at all. we shouldt be concerned if the patent applications are negated by prior art because MS probably wouldnt choose to use them offensively anyway? can you run that by me again?

I try not to be kneejerk, but specious patent claims is a real bugbear for me.

Re: The RSS Controversy

Don Dodge — Sat, 23 Dec 2006 08:55:10 -0000

David, Excellent post. Thanks for the link. Balance and objectivity on this subject is rare.

I believe, based on my observations of Microsoft, that these patent applications are simply a defensive move to protect against potential lawsuits.

Others believe, without any basis in fact, that Microsoft is up to no good. These are the people who see evil in everything Microsoft does.

I would support criticism if Microsoft tried to extract royalties or stifle innovation with these patents. Premature criticism is not warranted.

Thank you,

Don Dodge

Re: In-House Counsel Blogs

monkchips — Tue, 14 Nov 2006 11:51:36 -0000

more and more overlords emerging. i thought it legal bloggers was brave, but a legal counsel at a tobacco company - hfs