Writings W050601
Microsoft's IP-Infringement Specter

Analysis 0.50


0.50 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?
Orcmid's Liar: 2005-10-11 Relaxing Patent Licenses for Open Documents

I was 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.  There will also be licensing based on the current arrangement for the Office 2003 XML Reference Schemas. 

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 OOX 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
    3.5 Open Formats vs. Open Standards
4. Further Discussion
A. Source Materials
    A1. Available Materials and License
    A2. Proprietary Notices
    A3. Other Resources
    A4. References


1. Introduction: The Specter Thing

1.1 I’m fascinated by the opportunity for other applications and services to inter-work 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 such as 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) and are not expected to receive the same attention in the march toward release of Office "12" (the working number of the next yet-to-be-named version) in 2006.

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 to think that I'd destroyed the CD-ROM 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 cursory way here.

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 had no idea what there is about a document format that requires a license, and that’s all right.  My initial  thinking was that 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 The license they are referring to is not the copyright license on the specifications and schemas, it is with regard to programs that process the format.  It's the patent situation that the royalty-free license covers.  There are two licenses involved.  One on the copyrighted subject matter and one on patent claims that might impact software that processes the format (or does something else, and relying on the invention covered by the patent claims).

2.4 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.

2.5 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 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::

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 (section 3.4).  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 transfered), 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 license 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:

3.5 Open Formats vs. Open Standards?

3.5.1 There is some chatter about Microsoft's Open Format not being truly open, and that true open-ness means no encumbering patents.  Rather than argue the point, I think a reality check is called for.  Here's what I have found by applying a modest level of diligence:

Table 3-1Comparison of Specifications and Licenses: ODF and OX

OASIS Open Document Format (ODF)

Microsoft Open Office XML (OX) Format

with Sun IPR notice of 2002-12-11

with Sun  Patent Statement of 2005-09-29

with Microsoft Office XML Reference Schemas licenses (copyright and patent) Type of specification for an electronic-document format (706 pages, June 2005) for an electronic-document format (only white papers and preview, plus Office 2003 materials as of 2005-10-09) progenitors OpenOffice.org (OOo) XML Microsoft Office 97 through Microsoft Office 2003 default format and details derivative work of specification solely for discussion and explanation excluded schema methodology Relax-NG schema definition (504k) XSD: XML Schema Definitions (following guide and preview approach) schema approach One normative (relaxed), one (non-normative) strict, including one Zip packaging specification and schema for manifests.  Optionally, single or multiple XML documents serve as parts in the ODF representation of a complete OpenDocument document. family of XSDs cover the package, common elements, and product-specific structures for Word, Excel, and PowerPoint.  Multiple XML documents serve as parts and relationships of parts in the OX representation of a complete Microsoft Office document. licensing of schemas none stated (Sun Microsystems and OASIS Open copyright notices in the files) same notice and copyright license as on documentation specified compatibility some (forks earlier OpenOffice.org format); format support now claimed for some recent software releases; interchange and degree of conforming feature implementations remains to be assessed; no conformance-assessment mechanism has been announced (2005-10-09) round-trip fidelity with Microsoft Office binary-format documents, Office 2000-2003 and Office "12"; assumption: down-level behavior appears to be based on current default-formats approach (e.g., via "Word 97-2003 Document" format). defined conformance yes not determined minimal conformance some preservation requirements (MUSTs) and allowances (MAYs and SHOULDs).  No minimum floor or "core" of elements and attributes required of all implementations appears to be defined although required by the OASIS TC charter. not determined foreign-element tolerance specific provisions for allowance and preservation of foreign elements, under non-duplication of ODF provisions (unclear what happens when ODF extended) not determined custom content not determined specific allowance for custom XML incorporation starting with Office 2003; also a prospect for the package conventions. underspecified features Cursory 2005-10-09 examination reveals these: "2.4.6 Cursor Position Setting" and any other introductions of markup-embedded processing instructions; "6.3.10 Expression Fields" and other areas appealing to unidentified namespaces for formulae in the content of attributes (6.7.6 for text, 8.1.3 for table cells); "2.5.1 Scripts" again for appealing to unidentified namespaces, absence of script-language representation in the content of an attribute, and no identification of the document-model by which the script interacts with the document and anything else (also 6.6.6).  The impact of this on conformance verification and contractual-specification of OpenDocument compliance is unclear.  The coining of styles and formats may be more problematic, as may be reliance on macros and DDE.  More systematic analysis is required. not determined royalty-free patent licensing Sun Microsystems "essential claims" royalty-free license Sun Microsystems will not enforce any of its patents, present or future Microsoft "necessary claims" royalty-free license patent-license scope limitation only where unavoidable in order to implement the specification, and only to implement the specification any implementation of ODF 1.0 and subsequent versions in which Sun participates to an extent that OASIS rules apply in regard to IPR only where unavoidable in those portions of a software product that read and write files that are fully compliant with the specification of the schemas patent reciprocity required Yes. No.  License is terminated for any party that attempts to assert patent rights against any ODF implementation. No.  Suing Microsoft or affiliates for infringement of a related patent claim will terminate the license for the complaining party. patent-license notice none required specific statement required

3.5.2 The Microsoft Office XML Reference Schemas license establishes open formats.  One of the new openings that Microsoft celebrates is making it easy to repurpose documents in those formats, ingesting the formats without requiring Microsoft Office software.  Likewise, one may produce documents in those formats as a repurposing of other material.  This is not the same as what is called an open standard, in that the technical determination of the format is entirely by Microsoft, with primary attention on fidelity to the format as defined by Microsoft Office products.

3.5.3 Although I think there is a speculative case for wanting to make derivative works of the OX and ODF formats, I want to make it clear that Microsoft has provided what it promised: An open format.  It's a proprietary open format the way TIFF, PDF, and GIF are.  It's more open (or less proprietary, take your pick) than MP3 is.  It is determined by a single specifier, the same as FORTRAN, C Language, and Java (and a lot more) were during their early lives.  I think the same considerations apply to ODF, although it might make interchange barriers between implementations even more likely than it appears they already will be.

3.5.4 It's the ODF and OX schemas that can't be "repurposed."  That's what I am picking at when I claim there's a derivative-use bind.  That may turn out to be unimportant.  We need to find out.

3.5.5 Is this the difference between (merely!) an open format and an open standard?  Or is there no material difference? 

3.5.6 The term "standard" is being bent a little in comparing the Microsoft Office Formats and the OpenDocument format. 

3.5.7 That OASIS declares a 706-page unimplemented specification as being an "OASIS Standard" is fairly amazing

3.5.8 It seems to me that OpenDocument must be demonstrated to accommodate the Microsoft Office format, not the reverse.  Can OpenDocument accurately represent documents created in Microsoft Office, preserving all of the features of those documents?  Can faithful conversion be done mechanically?   That's the legacy challenge that must be dealt with.  It doesn't strike me that the burden of proof is Microsoft's.

4. Further Discussion

4.1 I had considered further topics to be covered:

4. Copyrights vs. Patents
5. The Perpetual Patent Wraith
6. The Open-Standards Patent Finesse
7. The Microsoft Office XML License
8. Impact on Open-Source Distributions

4.2 I think it is better to develop these, and some of the material already here, for use independent of the OX and ODF considerations and comparisons.  That will be done as part of work on TROSTing.org.  If I revisit either OX or ODF in greater detail, that will probably be related to how these become interesting for document-management systems.  That will emerge, at some point, on the DMware site and perhaps some ActiveODMA project.

-- Dennis E. Hamilton
2005 October 10

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):

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 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.

A3. Other Resources

There are a variety of on-line resources with coverage of the Microsoft Open Office XML Format (OOXF or OX for short).

A4. References

Bradner, Scott O. (1996).

The Internet Standards Process -- Revision 3.  IETF Best Current Practice 9, RFC 2026, Network Working Group, Internet Engineering Task Force.  October.  Available at <http://www.ietf.org/rfc/rfc2026.txt>

Clark, James., Murata, Makato, eds. (2001)

RELAX NG Specification.  Committee Specification 3 December 2001, RELAX NG TC, Organization for the Advancement of Structured Information Standards (OASIS), Billerica, MA.  Available at <http://oasis-open.org/committees/relax-ng/spec-20011203.html> (accessed 2005-10-10).

Microsoft (2005a).
Microsoft Office Open XML Format Architecture Guide.  Preview for Developers, White Paper, Microsoft Office Online, Microsoft Corporation, Redmond, WA.  249kb Microsft Word 97-2003 Document, 2005-06-03.  Available at <http://www.microsoft.com/office/preview/developers/devpaper.mspx> (accessed 2005-10-08).
Microsoft (2005b).
Microsoft Office Open XML Formats Guide.  New File Formats for "Office 12," White Paper, Microsoft Office Online, Microsoft Corporation, Redmond WA.  114kb Microsoft Word 97-2003 Document, 2005-05-31.  Available at <http://www.microsoft.com/office/preview/developers/fileguide.mspx> (accessed 2005-10-08)
Microsoft (2005c).
Office "12" XML Schema Reference - PDC 2005 Preview, version 092205, Download Details, Microsoft Download Center, Web Page, Microsoft, Redmond, WA: 2005-09-22.  Available at <http://www.microsoft.com/downloads/details.aspx?FamilyId=15805380-F2C0-4B80-9AD1-2CB0C300AEF9&displaylang=en> (accessed 2005-10-08).
     There is a 1252 kB Zip File as well as links to other resources on Office XML.  There is also a self-installing version.  The HTML documentation in the Zip file requires that the contents be unpacked into a file-system directory for access and viewing.  The current licensing approach is covered.
Microsoft (2005d).
Open Packaging Conventions Licensing Overview.  Working Document, Specifications and License Downloads, XML Paper Specification (XPS), WHDC, Microsoft Corporation, Redmond, WA.  Web page, available at <http://www.microsoft.com/whdc/xps/pkglicense.mspx> (accessed 2005-10-08).
     The Office XML Reference Schema license is being used as the basis for other licensings.  This page provides a convenient description for the form being considered for the important new packaging technique that is used for the OX formats in Office "12" and for the Microsoft XML Paper Specification (XPS), first known as "Metro."  -- dh:2005-10-09
Microsoft (2005e).
Open Packaging Conventions: Specification and Reference Guide, version 0.75.  Microsoft Corporation, Redmond, WA, 2005-09-13.  Available for download in a Microsoft-signed self-extracting Zip file under cover of a restrictive license at <http://www.microsoft.com/whdc/xps/xpspkg.mspx>.
OASIS (2005a).
OASIS Open Document Format for Office Documents (OpenDocument) TC.  Technical Committee web page.  Organization for the Advancement of Structured Information Standards (OASIS), Billerica, MA.  Available at <http://www.oasis-open.org/committees/tc_home.php?wg_abbrev=office> (accessed 2005-10-09).
OASIS (2005b).
OASIS Open Document TC IPR Policy Statement.  Technical Committee IPR Web Page.  Organization for the Advancement of Structured Information Standards (OASIS), Billerica, MA.  Available at <http://www.oasis-open.org/committees/office/ipr.php> (accessed 2005-10-09).  The IPR statements are provided in reverse-chronological sequence.
OASIS (2005c)
Open Document Format for Office Applications (OpenDocument) v1.0: OASIS Standard 1 May 2005.  Organization for the Advancement of Structured Information Standards (OASIS), Billerica, MA.  Adobe PDF file, 706pp.  Available at <http://docs.oasis-open.org/office/v1.0/OpenDocument-v1.0-os.pdf> (accessed 2005-10-09).
Rosen, Lawrence (2005).
Open Source Licensing: Software Freedom and Intellectual Property Law.  Prentice-Hall PTR, Upper Saddle River, NJ.  ISBN 0-13-148787-6 pbk.
Stutz, David., Neward, Ted., Shilling, Geoff (2003).
Shared Source CLI Essentials: Exploring Microsoft's Rotor & the ECMA CLI.  O'Reilly, Sebastopol, CA.  ISBN 0-596-00351-X pbk+CD-ROM.
     I regret ever examining the CD-ROM, because I don't want to be tainted by the Shared Source license and its limitations.  I thought I had destroyed it when I realized what the temptation was, but I recently found it on a shelf while looking for something else.  I have managed to find it again and seal it back into the book pocket where I won't displace it once more.  But I don't want to ever inspect it again.  The only code I want to see of the CLI is that which is provided with Mono, the open-source implementation.  I will gladly use the book as a guide to standard characteristics of the CLI and things that are worth knowing about it (not the PAL and the Rotor implementation).  The title of the book should have been a tip-off, but I had to be curious.  Fortunately, I didn't learn anything that's not in the text of the book.  -- dh:2005-10-09.
W3C (2004a).
XML Schema Part 1: Structures, Second edition, W3C Recommendation 28 October 2004.  World Wide Web Consortium.  Available at <http://www.w3.org/TR/2004/REC-xmlschema-1-20041028/>.
W3C (2004b).
XML Schema Part 2: Datatypes, Second edition, W3C Recommendation 28 October 2004.  World Wide Web Consortium.  Available at <http://www.w3.org/TR/2004/REC-xmlschema-2-20041028/>.

0.65 2005-11-29-13:35 Reflect Availability of later version
0.50 2005-10-11-12:09 Develop Updated Canonical Version
The page is moved to the canonical location, orcmid/writings/2005/06 and developed to serve as the latest version, incorporating more information on the license differences for Open Document Format (ODF) and Open Office XML (OOX).
0.27 2005-06-05-13:18 Initiate Patent Coverage
The 0.26 version is branched for customization to build to an 0.50 Analysis
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.

Construction Zone (Hard Hat Area) You are navigating Orcmid's Lair

created 2005-06-05-13:18 -0700 (pdt) by orcmid
$$Author: Orcmid $
$$Date: 17-10-20 13:09 $
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