As the anti-OOXML crowd’s technical and editorial objections evaporate, and consequently as the reasonable people increasingly see that ISO is delivering a good result for them and jump ship, the rabid anti-OOXML misinformation campaign is ramping up. The basic strategy is to say that things are so bad that no improvement is possible, and indeed that any improvement is complicity.
But it is quite possible for the different sides to engage civilly and constructively.
OOXML Forum: AM
On Friday last week UNSW CyberSpace Law and Technology Center organized a really good day-long seminar in Sydney on the technical and legal feasibility of implementing Office Open XML, to try to get people talking.
The morning was a technical meeting: I was honoured to be invited to speak first, with 30 minutes on ISO and SC34 standards and I will be putting up my slides later. Other invited speakers include Mathew Cruikshank (who was very active in New Zealand’s vote), and Colin Jackson (NZ government angle.) Also speaking in little 10 minutes slots were a representative of IBM (same old material), and Lars Rassmussen from (notorious VML-users) Google Maps (he has a meeting report here but I don’t know why he has an “issue” with me; in any case, like Matthew, I think he is a goody.) MS had a 3 man contingent, and people were obviously trying to be on their best behaviour: Oliver Bell from Singapore was there and had blogged. Not many fireworks, I was tired and grumpy from travel so probably just as well. I was pleased to also see Standards Australia’s Alistair Teggart there too; he made some good clarifications. Prof David Vaile was very interested in what people had to say, and frequently asked for clarifications or expansions. Gnome Foundation’s Jeff Waugh was lively (in fact, he called the technical issues boring…clearly a big picture man) matched only by UNSW’s Pia Waugh. (Clarification: Jeff’s point was, I think, that other issues were more important than the technical/editorial issues of the Australian ballot comments.) (I am sure I have missed some who spoke!)
I’d stereotype the various opinions as people who didn’t see why there should be two standards, people who didn’t see the value of even one standard , people who saw the value in their own standards, people who didn’t see the value of their competition’s standards, and people who thought there should be many more standards (err, probably only me.)
OOXML Forum: PM
The afternoon was the legal session, and very interesting. Unfortunately it only looked at the OSP and didn’t cover any standards law (relation to law of fraud, anti-trust, etc.) probably because in many countries there has been no relevant case law, and in each national jurisdiction the situation will be difference. The US law is quite advanced (or, at least, explicit) here: Australia really needs some legislation to clarify the duties and rights of stakeholders in voluntary national and international standards processes. I have previpously posted some material on this blog Standards and IP for people who are interested.
First up in the afternoon was legal background material by Ron Yu, a very likeable guy. He has made a report that is available from the CybserSpace Law Centre’s website. It was mainly a discussion paper raising various issues that people had made, rather than a definitive position on anything. Then MS’ Steve Mutkoski gave a talk on OSP, mainly focusing on the similarities and differences from the Adobe, Sun and IBM equivalent. He was one of the legal team who drew up OSP and pushed for less legalize in it (using “promise” rather than “covenant” for example.) His main thrust was that the differences between the Sun, IBM and MS licenses were only cosmetic. Steve made his points well.
As it turned out, from discussions it emerged that there was really only one bone of contention, which was the meaning of “required” in the OSP. Now this is something that I have blogged about before: see the lengthy comment (search for “Matthew:”) and also here (search “Kurt #2″).
MS’ legal department have been absolutely hopeless in helping people figure this out, and if OOXML fails at the final vote, they and Steve Ballmer have the lion’s share of the blame. Many in the open source community react strongly to the memory of MS’s FUDing on Linux patents; rather than (as I tend to do) saying “oh good, at least in the standards process they are opening up their IPR” (i.e. due to things like standardization and the OSP) the MS FUD has raised suspicion to the level where people say “since they clearly want to enforce their IPR, they cannot be genuine about OSP” (i.e. there is some trick there). That Steve Mutkoski was so unprepared to answer questions about what “required” meant shows, I think, that this issue (which has been repeatedly and constantly raised over the last year) just has completely flown over the heads of the MS legal department. This part of the QA session was a pretty disappointing performance.
The issue here is that the OSP only covers “required portions” of the spec (MS, IBM, etc) promise not to enforce their patents unless you sue them. When I looked at the OSP, I went ahead and looked at all the other licenses to see what “required portion” meant, since it was clearly some kind of legal term. IBM’s license is better, because it spells it out; MS thinks it is unnecessary to spell it out since lawyers would know; they wanted to keep the OSP to one page. But they got it wrong: people think that normal language is being used.
W3C (and OASIS) dealt with this very problem. I think the OSP should be redrafted to follow their wording (and of IETF), and use “normative” rather than “required”. That aligns the promise with the language of the standards and clears up some potential for confusion.
Laypeople look at “required portions” and decide that this must be in opposition to “optional portions”. Here is the MS wording from OSP:
To clarify, “Microsoft Necessary Claims” are those claims of Microsoft-owned or Microsoft-controlled patents that are necessary to implement only the required portions of the Covered Specification that are described in detail and not merely referenced in such Specification.
Predictably, IBM ’s rep was trying promote this confusion. Quite a lot of chutzpah considering that IBM in fact uses the same legal terminology in its covenant
“Necessary Claims” are those patent claims that can not be avoided by any commercially reasonable, compliant implementation of the Required Portions of a Covered Specification. “Required Portions” are those portions of a specification that must be implemented to comply with such specification. If the specification prescribes discretionary extensions, Required Portions include those portions of the discretionary extensions that must be implemented to comply with such discretionary extensions..
Intel v. Via Technologies
IBM’s wording is much clearer and better, and “required portion” is indeed a common term in these licenses. However, what if Microsoft turned around and said “We didn’t define it as a required term, and now we want to charge licenses for patents”? Lets put aside the common legal usage of required portion in licenses. Lets also put aside the small likelihood that there could be non-junk patents in the area of document processing formats (considering the maturity of Unix Publisher Workbench, TeX and so on from the 1960s to the 1980s, not to mention ISO SGML (IS 8879:1986) and its applications since 1986 and before. And lets put aside fraud issues, given the consistent public representations by dozens of top-level management from MicroSoft.
What happens with an ambiguous licenses? During the session I asked if anyone knew of any case law where “Required” was discussed, having a nag in my memory. I have looked it up again and it comes up in the case Intel v. Via Technologies, 319 F.3d 1357 (Fed. Cir. 2003 which has a discussion here. In that case, the judgement was that “required” must be given the widest interpretation (to include “optional”)
Although we agree with Intel that its reading of the plain meaning of “required by” is a reasonable one, we disagree that its reading is the only reasonable one. First, the words “required by” without any clarification could mean either non-optional protocols of AGP 2.0 or electrical interfaces or protocols that are required to perform any specification “described” in AGP 2.0, including non-optional protocols for an optional specification. For example, books “required by” a school could mean books needed for (1) “required” (non-optional) classes; or (2) any class taken, including optional classes.
The word “optional” does not occur anywhere in the license agreement.
Thus, we conclude that VIA’s and Intel’s interpretations are both reasonable readings of the license agreement. The district court erred in holding that VIA’s reading of the agreement is the only reasonable one. Nevertheless, it was harmless error because, as there is ambiguity in the agreement, the district court properly granted summary judgment of noninfringement relying on contra proferentum.
When a contract is ambiguous, the principle of contra proferentum, under Delaware law, requires that the agreement be construed against the drafter who is solely responsible for its terms.
Contra proferentum has been held determinative in resolving ambiguity in a contract that, like the agreement here, is drafted by one party and offered on a “take it or leave it” basis without meaningful negotiations.
It would be interesting to know in which other jurisdictions would also allow contra proferentum: according to Wikipedia it also includes Europe, California and international arbitration. Here in Australia, there are multiple cases that endorse the principle in various circumstances.
If I may throw a spanner in the works, the thing that I see missing from all these licenses is that they only seem to cover the of patents where use of the patents is unavoidable to implementing the spec. In other words, if there are multiple ways of implementing something, you have to use the way that is not covered by the patent. I think this is unacceptable, and something that MS, IBM and the others should fix. Don’t compete at this level, boys and girls, it is counter-productive: open up.
So it was a really enjoyable day, and I enjoyed catching up with Greg Stone, Matthew Cruikshank and the others during the breaks. I think Pia, David and the CyberLaw Policy Centre organizers did a really good job.
But outside in the world, confusion is still rampant. OASIS lawyer Andy Updegrove has never been known to say a positive thing about MicroSoft nor a negative thing about IBM, and most of the time he is happy to be one link down the S-bend from Rob Weir’s mischief, however he is really valuable when commenting on law. But it is interesting to see the level of misinformation of some of Updegrove’s readers.
A case in point. While I don’t see this issue as primarily IBM versus MS (that is one aspect but there are also open source people and industry people and governments occupying all positions: pro, neutral, con, don’t care, be fair, make it right, etc) nevertheless I think IBM’s strategy has long been that since they cannot prevent DIS 29500 being fixed and adopted, they need to shoot the messenger and blacken ISO’s name. In fact, IBM’s Bob Sutor is quite open about who IBM are really interested in, no shame in that: when asked about Open XML and ODF and ISO he replies
I think we have collectively educated and permanently changed the policies of procurement people in many organizations around the world.
Recently, IBM marketing guy Rob Weir has not had much to blog on, since according to JTC1 rules (which they are trying to get strictly enforced following their meeting in Australia last month) ballot resolution discussions are private. This rule is intended to stop hysteria and allow the participants the full range to describe options without outsiders citing proposals and options as done deals. (I.e. exactly what Rob has been doing, such as his complaint that the early issues dealt with were the trivial ones, to try to prop up the crumbling argument that there would be no changes to DIS 29500 in response to the National Body comments) People who are interested in participating have had a year to join their national standards body’s committees and come to grips with all the issues and procedures. So Rob came up with a great spin: Microsoft is bad because, PERFIDY! they are following the rules…
Anyway, Andy’s blog on this was a real classic according to the formula. He picks up on Weir’s message of the day, and links to both Weir and MS’ Brian Jones, which is some balance. Then, in further imitation of fairness, he quotes “Pamela Jones” (Groklaw) but her article is also just a riff from Weir’s tune. Pamela manages to find some minor wording issue based on some material on the SC34 website (the FAQ is really clear on the issue, I thought): Pamela because most people in ISO committees do not have English as their first language, it is not a good idea to try to find the worst meaning in phrasing: material on a general webpage is just general material and you are wasting people’s time by trying to read too much into them. Then, based on the spurious idea of the vote being taken at the meeting, off she goes with imagined opportunities for conspiracies and so on. Again, it is the basic strategy: FUD. Take the most lurid interpretation possible, try to discredit the process.
In politics, this kind of spin is called “innoculation”. What you do is try to get ahead of your opponent by coming in early with responses to them. For example, “Six lies the Democrats will tell you” or whatever. The intent is that then the public will hear any statements through the framework established by you. (Indeed, IBM’s Bob Sutor even talked of having a competition for this.)
Andy’s blog has a similar comical moment: after given some of the smaller details of an ECMA press release, where ECMA rolls over on some of the most contentious issues which previously the Echo Chamber had told us would never be changed, Updegrove says
Despite the meagerness of the sampling of recommendations described in the press release, it is possible to get an idea of the degree to which Ecma and Microsoft are willing to go in order to secure a final, favorable vote.
What Andy: no “How great, we got what we asked for!” instead a complaint about the press release being meagre (oh no, not enough material for a convincing spin) and then the corker that this shows “the lengths” they will go to! PERFIDY! They are refusing to act unreasonably! PERFIDY! They are giving in to user demands! So despite this utterly clear evidence that the process looks like it is working (ECMA proposes a standard, national bodies consider it and make comments, ECMA and the national bodies work out constructive solutions to them, the way that every other fast-tracked ISO standard procedes), instead it is supposed to be bad news. It is hard for me to think why it isn’t kind of pathetic.
Anyway, the thing that grabbed my attention about this blog item was that there had been four small discussion threads. And all of them were based on wrong information.
- The first makes a statement about maintenance, but the maintenance regime has not been decided yet. (See the SC34 Kyoto minutes 8.1
- The second is some FUD on copyright. Yet the ECMA copyright is very clear.
- The third claims that ISO requires two implementations. (Actually, now that Apple has about 10 different independent implementations of parts of OOXML released or in the works, claims about the impossibility of implementation are looking increasingly implausible.)
- The fourth is that OOXML could not have gone through the PAS process, as ODF did. (I made a reply giving the actual JTC1 directives on the issue: Appendix M) This last claim is often based on the idea that OOXML is a really rotten spec from the technical writing POV: ODF is contrasted. However, the fact is that all specs when looked at in detail have a large number of things to improve. Look at the Japanese defect report for ODF which has finally surfaced: 98 problems ranging from trivial editorial (’An’ not ‘A’) to the incorrect (#68) to the incomplete (#75) to the inconsistent (#88). The thing to do with errors is fix them, not augur calamity or incompetence cheap points from them.
A world of confusion. The emperor’s new clothes are tremendously well-ventilated.
UPDATE: There is a pretty fair summary of the UNSW seminar article over a ZDNET Australia (though it should say “death wish” not “death threat”!)
UPDATE: There is a good re-statement of MS’ position on the various licenses at Baker and McKenzie which addresses some of the IP issues of interest better: optionality and GPL in particular.