Writings W050601
Microsoft's IP-Infringement Specter

Analysis 0.30

orcmid>writings>
2005>06>

W050601c>
0.30 2017-10-20 -13:09 -0700


see also:
Professor von Clueless: 2005-06-02 Microsoft Cracks Open the Word, Excel, and PowerPoint Formats in XML
Orcmid's Lair: 2005-06-05 Office XML's IP-Infringement Specter, I: Copyright (long)

Orcmid's Lair: 2005-06-09 Microsoft OX vs. OASIS OD: Is It Really Open Format vs. Open Standard?

Professor von Clueless in the Blunder Dome: Microsoft Cracks Open the Word, Excel, and PowerPoint Formats in XML.  I’m excited about the June 2 announcement of the Office XML Open Format to become the default Microsoft Office document format.  It is particularly pleasing that support for the format will be retrofitted to Offices 2000, XP, and 2003. 

Iím also concerned that the Office 2003 XML Reference Schemas license may not cover use cases that are important to me and, I think, that may be even more important to Microsoft.  In this lengthy entry, I unwind as much as I can figure out about how the copyright elements of the license can be made to work and where the restrictions of the license seem to pinch too much. 

I end with the observation that itís great that Microsoft is opening up its approach so far ahead of the next Microsoft Office release.  There is a sizable window where everyoneís concerns can be addressed before the formats and their license are locked down.

1. Introduction: The Specter Thing
2. The Proposed Benefits of OX and the License
3. The Copyright-Leftness of the License
    3.1 The Copyright Portion of the License
    3.2 My Practices: A Specific Comparison
    3.3 The Copyright-Mixing Bind
    3.4 The Derivative-Use Bind
[the Patent-License Cases will be explored separately]
A. Source Materials
    A1. Available Materials and License
    A2. Proprietary Notices
    A3. Other Resources

1. Introduction: The Specter Thing

1.1 I’m fascinated by the opportunity for other applications and services to interwork with the “OX” formats (my term for the new DOCX, XLSX, and PPTX).  The same license also covers the current but non-OX XML formats usable with Excel, InfoPath, OneNote, Project, Research Services (from Office applications to research resources, including Encarta), Visio, and Word (i.e., WordML).  The OX formats are judged by their developers to be good enough and rich enough to become the default formats in place of the current DocFiles of key Microsoft Office applications Word, Excel, and PowerPoint.  Some of the other XML formats in Office are for specialized usage (e.g., imports into OneNote).

1.2 What’s this specter thing?  I find myself having a weird emotional reaction (“feeling dirtied” off-and-on) over the license, and it appears to be because its language raises the specter of infringement.  By that I mean that I am now wary of the prospect of committing an infringing act.  That’s despite the license’s excusing of actions that could be infringing acts in the absence of the license.  That’s what I mean about the IP-Infringement Specter. 

1.3 The prospect of unintended (or IP-ignorant) infringement is the same as it always has been.  Yet the fact that Microsoft provides a royalty-free, conditional and limited license that points out the prospect in its terms actually raises my anxiety level.  My gut reaction is to keep my distance and not embark on something that would have me be tainted by the license strictures.  (This aversion led me finally to destroy the CD that comes with the Shared Source CLI Essentials book, once I realized I could be tainted by examining its contents.)  I have no idea how I end up in that mood, but I will bet small sums that I am not the only one who reacts in this way, and some will accompany that with speculations of dastardly Microsoft conduct and perpetuation of property-centered evils.

1.4 Because I think OX is a big deal, and I would love to find out that it is safe to play with the formats and the opportunities they represent for novel application, extensions, and variants, I want to slay this demon of mine.

1.5 I propose to take the license apart, piece by piece and satisfy myself that I can work with it.  This post deals with the copyright license.  The patent license is thornier for me, and I'll address that in a later post.

2. The Proposed Benefits of OX and the License

2.1 Microsoft Senior Vice President Stefen Sinofsky identifies the intended benefits in his Microsoft PressPass Q&A:

“We have used [XML] as the foundation for the new Office XML Open Format, which is an open, published document format.  In addition, we are publishing with it a royalty-free license, so any customer or technology provider can use the file format in its own systems without financial consideration to Microsoft.  This will ensure that the new file format can be used by everyone to create, access, and modify documents in this format.”

2.2 I have no idea what there is about a document format that requires a license, and that’s all right.  There’s not much harm in Microsoft being over-generous and providing a royalty-free license to something that maybe can’t be owned.  I as licensee then don’t have to worry about whether or not there is a property right and which bits of the whole happen to be that property.  I am very fond of licenses that allow me to remain unworried and have very simple compliance conditions.

2.3 Microsoft presents the offer as an important one, so it is useful to find out what it provides for.  I’m aligned with the stated outcome: ensuring the ability to use the format(s) to create, access, and modify documents.  I am learning, however, that “in this format” is actually limiting in unexpected ways.

2.4 My natural inclination is to discover the actual terms of the license, its limitations, and any conditions that must be satisfied.  So I have gone looking.  Here’s what I make of it.  You can check the original sources, review my rationale, and apply your own yardstick.

3. The Copyright-Leftness of the License

When I think about licenses having to do with software, my first thought is about copyright and the range of licenses that interest the developer community.  I include the range of Creative Commons licenses as well as those that satisfy the Open Source Definition (1.9).

3.1 The Copyright Portion of the License

3.1.1 Microsoft reserves all copyright in the specifications of the Office XML formats and of the XML Schema Definitions for those formats.

3.1.2 Along with Microsoft’s copyright notice, there is the grant of a perpetual, non-exclusive, limited copyright license that begins:

Permission to copy, display and distribute the contents of this document (the “Specification”), in any medium for any purpose without fee or royalty is hereby granted, provided that you include the following notice on ALL copies of the Specification, or portions thereof, that you make.

3.1.3 The specified notice is exactly the same as the one that Microsoft uses in its own copies, linking to the same license document.  The required-notice exhibit is followed by this additional stipulation, making it clear what is not being granted too:

No right to create modifications or derivatives of this Specification is granted herein.

3.1.4 The simplest well-known license with comparable limitations (based on copyright alone) is the Creative Commons Attribution-No Derivatives license.

3.1.5 I have no problem with honoring these conditions exactly.  Well, the specter comes up and I have to keep reminding myself that it is an illusion.  As I work through some of these cases, I notice that  the specter is fading.

3.1.6 There are some difficulties when I want to use the material in ways that I think Microsoft wants to encourage and where literal preservation doesn’t work.  For those cases, a statement akin to the Creative Commons Attribution-Share Alike license would have me be more confident that I donít need to negotiate a specific license for each such occasion.  In a situation where someone isnít willing to share derivatives, they are no worse off with a share-alike license than with the Microsoft no-derivatives version.  Also, as the owner of the copyright, a share-alike provision does not constrain Microsoftís use of its own material in any way whatsoever.  And if Microsoft isnít willing to accept the share-alike offerings of others, they are no worse off than anyone else in that situation.  (For that matter, Microsoft is in a far better position to negotiate alternative licenses than are many smaller operations.  If there's a non-specter downside to this for Microsoft, I'm not the one who can say what it is.)

3.2 My Practices: A Specific Comparison

3.2.1 I want to illustrate the practices that are required where these Microsoft-licensed materials are distributed as part of collective/composite works covered by different over-all licenses.  I'm drawing on my own practices:

3.2.2 I want people to be able to make use of my works and, by applying very simple practices, to be unconcerned whether or not their use constitutes creation of a derivative work.

3.2.3 I am not lobbying for the adoption of this approach by others.  These choices are merely single instance of the wide range of exclusive rights that copyright holders can exercise as they see fit.  I bring up my approach here because it provides a grounded, worked set of comparative examples that I am completely familiar with.

3.3 The Copyright-Mixing Bind

3.3.1 When materials having different licenses are commingled in an electronic packaging, it is easy for a recipient to overlook the additional restrictions that may accompany some of the items.  There is a fair amount of carelessness about that in open-source packages (and some commercial ones) that I have encountered.  I don't want any recipient of my work to be led astray by how I package materials together.  I apply two complimentary practices for making differences in licensing of companion materials very clear:

3.3.2 Finally, when I am not authorized to redistribute material (or the recipient is not similarly entitled—the redistribution right is not transferable), I will apply the same methodology that I use in public software-development efforts that rely on available but non-redistributable materials.  For example, the ActiveODMA development tree is being organized with a nodist subsection

3.3.3 The nodist subsection is for instructions on how to obtain the material and install it in a way that works for the open-source ActiveODMA development projects.

3.3.4 In this regard, the Microsoft license presents no greater burden for me than any other license that permits redistribution and is materially different than the one the containing contribution is under.  I have the same difficulty packaging software that is created with the GNU Public License (GPL) in my distributions as I do packaging material under the Microsoft Office XML Reference Schema license.

3.4 The Derivative-Use Bind

3.4.1 The prohibition on creation of derivative works is a different problem.  There is nothing I can do, short of negotiating a separate license (one that would likely not be transferable to recipients of my work) if I have a compelling interest in creating a derivative work.  Unless there is some sort of share-alike provision, I can't pass it on and I would be reluctant to engage in such an arrangement.  I would have to step out of the Open Source Definition and I am unwilling to do that.

3.4.2 There is no bind here without a compelling interest in making derivative use (including derivative works).  In the case of OX and the Office XML Reference Schemas, I think there are three important cases:

3.4.3 It strikes me that these are valuable cases that can be claimed to involve the creation of derivative works.  It might not be in Microsoft's interest to discourage some or all of these cases.  I favor allowance of derivative works with an appropriate weakening of the license's restrictions.  In particular, it provides a zone of safety for developers who are unclear when and whether an use constitutes creation of a derivative work. 

3.4.4 Whatever the concerns that Microsoft has in this area, I notice two important opportunities that result from the early announcement and discussion:

A. Source Materials

A1. Available Material and License

Microsoft proposes to make the OX formats available under the same terms that existing (non-OX) Office XML documentation and schemas are provided.   Those materials and their license information can be accessed and downloaded in a couple of ways:

A2. Proprietary Notices

A2.1 At the bottom of the Office XML Software Development Kit web pages and the HTML Help pages, there is a consistent notice:

A2.2 In the XML Schema files themselves, there is also license text.  The text is the same as that in the reference HTML version in the on-line MSDN Library linked just above.  the following declaration is typical (from visio.xsd dated 2004-03-04–10:39):

<xsd:annotation>
<xsd:documentation>
Permission to copy, display and distribute the contents of this document (the “Specification”), in any medium for any purpose without fee or royalty is hereby granted, provided that you include the following notice on ALL copies of the Specification, or portions thereof, that you make:
 
Copyright (c) Microsoft Corporation.  All rights reserved.  Permission to copy, display and distribute this document is available at:  http://msdn.microsoft.com/library/en-us/odcXMLRef/html/odcXMLRefLegalNotice.asp?frame=true.
 
No right to create modifications or derivatives of this Specification is granted herein.
 
There is a separate patent license available to parties interested in implementing software programs that can read and write files that conform to the Specification.  This patent license is available at this location:  http://www.microsoft.com/mscorp/ip/format/xmlpatentlicense.asp.
 
THE SPECIFICATION IS PROVIDED "AS IS" AND MICROSOFT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE; THAT THE CONTENTS OF THE SPECIFICATION ARE SUITABLE FOR ANY PURPOSE; NOR THAT THE IMPLEMENTATION OF SUCH CONTENTS WILL NOT INFRINGE ANY THIRD PARTY PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER RIGHTS.
 
MICROSOFT WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO ANY USE OR DISTRIBUTION OF THE SPECIFICATION.
 
The name and trademarks of Microsoft may NOT be used in any manner, including advertising or publicity pertaining to the Specification or its contents without specific, written prior permission. Title to copyright in the Specification will at all times remain with Microsoft.No other rights are granted by implication, estoppel or otherwise.
</xsd:documentation>
</xsd:annotation>

A3. Other Resources

There are a variety of on-line resources with coverage of the Microsoft Office XML Open Format (OXOF or OX for short, and yes, I have been known to read Piers Anthony).


0.30 2005-10-08-15:15 Freeze in canonical location
This material and its further modification happens in the canonical location, orcmid/writings/2005/06/ with links to the previous location preserved by including these pages there.  This is all in response to an insight I had while working on ODMdev and to be reflected eventually on all nfoCentrale.net sites (more back-factoring, you've got to love it).  The format is adjusted here, with linking to later material.  There is no modification of the textual content and any links to this material should all continue to work.  This page is obsoleted by the separate Analysis 0.50 page.
0.26 2005-06-05-00:51 Clean-up edits
Reflect the changes and fixes introduced while editing the blog entry.  Link to the blog entry.
0.25 2005-06-04-22:38 Complete the Draft of Copyright Cases
The sections pertinent to making a crisper blog entry on the copyright cases are completed.
0.00 2005-06-04-15:22 Initiate Analysis
Create placeholder for the first draft of my analysis here.

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created 2005-06-04-15:22 -0700 (pdt) by orcmid
$$Author: Orcmid $
$$Date: 17-10-20 13:09 $
$$Revision: 83 $