Free-software lawyers: Don't trust Microsoft's Open XML patent pledge

Prominent legal counsel the Software Freedom Law Center said that the legal terms covering Microsoft's Open XML document formats pose a patent risk to free and open-source software developers.

The SFLC on Wednesday published a legal analysis of Microsoft's Open Specification Promise (OSP), a document written to give developers the green light to make open-source products based on specifications written by Microsoft.

The OSP is meant to allay concerns over violating Microsoft patents that relate to Open XML, Microsoft's document specifications that the company is trying to have certified as a standard at the ISO (International Organization for Standardization). For example, a company could create an open-source spreadsheet or server software that can handle Open XML documents.

Microsoft is awaiting the results of a crucial vote, expected by March 29, from representatives of national standards bodies.

But the SFLC said that the OSP is not to be trusted. It said that it did the legal analysis following the close of a recent Ballot Resolution Meeting held to resolve problems with the Open XML specification.

Specifically, the SFLC concluded that the patent protections only apply to current versions of the specifications; future versions could not be covered, it noted.

Also, software developers who write code based on a Microsoft-derived specification, such as Open XML, could be limited in how that code is used. "Any code that implements the specification may also do other things in other contexts, so in effect the OSP does not cover any actual code, only some uses of code," according to the analysis.

Finally, the SFLC said that OSP-covered specifications are not compatible with the General Public License (GPL), which covers thousands of free and open-source products.

Most open-source software advocates have opposed Microsoft's effort to standardize Open XML and the SFLC is no exception.

While not attempting to clarify the text of the OSP to indicate compatibility with the GPL or provide a safe harbor through its guidance materials, Microsoft wrongly blames the free software legal community for Microsoft's failure to present a promise that satisfies the requirements of the GPL. It is true that a broad audience of developers could implement the specifications, but they would be unable to be certain that implementations based on the latest versions of the specifications would be safe from attack. They would also be unable to distribute their code for any type of use, as is integral to the GPL and to all free software.

As the final period for consideration of OOXML by ISO elapses, SFLC recommends against the establishment of OOXML as an international standard and cautions GPL implementers not to rely on the OSP.

A Microsoft representative was not immediately available for comment.

Update 5:30 p.m. PDT: A Microsoft representative pointed to previous statements on the intellectual property and Open XML. In a blog in January of this year, Jason Matusow, the company's director of corporate standards, said that there are no intellectual property issues with Open XML, dismissed claims that there are, and listed the steps Microsoft has taken to clear up any concerns regarding Open XML.

Update 9:00 a.m. PDT, March 13: Gray Knowlton, group product manager for Microsoft Office, published a detailed rebuttal of the SFLC's analysis, saying that Open XML's terms are the same or more liberal than rival document standard OpenDocument (ODF), which is supported by Microsoft foes IBM and Sun Microsystems.

This is an unfortunate report, these all represent issues that have been raised in a campaign that includes innuendo and supposition, leaving out inconvenient information and language and ignoring the same, similar, or less attractive, language that exists for ODF.