Writings W050601
Microsoft's IP-Infringement Specter

Continuing Toward Adoption


0.81 2017-10-20 -13:09 -0700

see also:
Professor von Clueless: 2005-12-07 Second-Guessing Microsoft on ECMA: Shape-Shifting the ODF
Professor von Clueless: 2005-12-06 Lining Up Formats for Office Documents
Professor von Clueless: 2005-11-30 Open Standards are not Open Source
Professor von Clueless: 2005-10-17 Magical Thinking and the Universal Document Elixir
Orcmid's Lair: 2005-10-13 The Comfort of Open Development Processes
Orcmid's Liar: 2005-10-11 Relaxing Patent Licenses for Open Documents
Orcmid's Lair: 2005-07-29 Consigning Software Patents to the Turing Tar Pit
Orcmid's Lair: 2005-06-09 Microsoft OX vs. OASIS OD: Is It Really Open Format vs. Open Standard?
Orcmid's Lair: 2005-06-05 Office XML's IP-Infringement Specter, I: Copyright (long)
Professor von Clueless: 2005-06-02 Microsoft Cracks Open the Word, Excel, and PowerPoint Formats in XML
Professor von Clueless: 2005-03-24 Standards as Arbitrary Solutions to Recurring Problems
Professor von Clueless: 2004-12-26 Eliminating Mutual Incomprehension in Interoperability Arrangements

This stage of my analysis tracks the early opportunities to exercise and adopt the emergent open formats for digital office-document formats.  I'm particularly fascinated by the packaging conventions and document organization that are accompanying introduction of Microsoft Office Open XML formats.  I am also interested in what OpenDocument already has available in terms of public specification.  I'm intrigued by the lessons to be drawn from both efforts about achieving interchange, interoperability and fidelity preservation using open formats and their public specifications.

1. Introduction: Open Formats Arrive
2. Adopting and Supporting the Open Formats
3. Honoring the Licenses and Materials
    3.1 The Copyright Licenses
    3.2 Schema Usage: License Considerations
    3.3 Software Implementations: Patents and Licensing Concerns
    3.4 Packaging Licensed Material
    3.5 Tracking ODF and OOX Specifications
4. Rights of Copyright Owners
    4.1 Copyright Subject Matter
4.2 Exclusive Rights
    4.3 Derivative Works, Compilations, and Collective Works
A. Source Materials
    A1. Available Materials and Licenses
    A2. Proprietary Notices
    A3. Other Resources
    A4. References
    A5. Standards Organizations


1. Introduction: Open Formats Arrive

1.1 When the OASIS OpenDocument specification was approved on May 1, 2005, I paid little attention.  Although I strongly favor opening of office-document formats, I wasn't certain that ODF was adequate, especially with my investment in the Microsoft Office System personally and for professional reasons.  I wasn't about to spend time destabilizing my current work and my own legacy materials at this point.  I didn't see much reason to pay attention, especially being in the middle of a master's degree project dissertation.

1.2 When Microsoft announced on June 1, 2005, that Office "12" would use Office Open XML as its Native Format, I stopped to look.   The Channel 9 video with Jean Paoli and Brian Jones caught my attention.  For me, the hint about the special packaging conventions was captivating.  Packaging innovations for documents have been a pet interest and I wanted to know much more.  I was also impressed by the fact that the Office 2003 XML Schemas were already available for use under the licensing conditions that were being proposed.  I had to deal with an odd reaction to the royalty-free patent license though.  Even though the royalty-free license was expanding the rights to use the licensed formats in software applications, I had this odd feeling that I was under a legal threat and constraint.  It was that "IP Infringement Specter"  that led me to begin this series of analyses.

1.3 I dug deeper as controversy surrounded the Microsoft announcements.  I researched the OASIS OpenDocument specification and the intellectual-property conditions that surrounded it.  I dug into the available Microsoft materials that are part of the Office 2003 XML Reference Schemas and their licenses.  As new announcements unfolded, I satisfied myself that parity was being reached with regard to licensing conditions and openness.  From my perspective, all progress is in the right direction:

1.4 I developed a comparison table to line up the relative status of the two approaches, ODF (Open Document) and OOX (Office Open XML).  This shows how more-advanced OpenDocument is as a public specification, while the Microsoft OOX effort will have to be more-complete and rigorous to satisfy and maintain legacy-fidelity requirements.  At some point, the maturity and coverage of the efforts will converge to a consistent level and we'll have learned what it takes to make inter-translation work and what might be pragmatically-insurmountable barriers. 

2. Adopting and Supporting the Open Formats

2.1.  I have five levels of interest in these developments:  as user, author, system architect, developer, and scholar/teacher/scientist.  These might have nothing to do with your interests.  They do account for how I allocate my energies to this subject.

2.2  As an User.  I have an investment in my own electronic documents and those of my family.  Somewhere, on disks that I probably can't read any longer, and on machines in storage, I still have files and records in WordStar, Borland Sprint, and early versions of Microsoft Works.  Having a way to preserve recovery and access of those and all current materials is important to me.   I don't expect to recover the older files, but I want all materials for which there is current software to be in forms that can outlive the software and the current operating systems.  In this regard, I am a pretty staunch Microsoft Office user.  It has provided me the longest-lived legacy support of digital documents that I have ever enjoyed. 

2.3 As an Author.  For authoring, my format of choice is HTML.  You're looking at it.  My preferred authoring tool is Microsoft FrontPage, not for beautiful HTML but for the production and publishing model that it supports via FrontPage Extensions, local IIS, Visual Source Safe, and FTP.  The HTML is a public, open format.  Even when I use intermediary services like Blogger and special tools like Blogjet, I arrange to have the published HTML on a site where I can preserve and repair the material as needed.  I love the ability to make and arrange hypertexts, and it's satisfying to deliver passive, non-invasive HTML for easy viewing by readers and users.

2.4 As a System Architect.  Document processing systems have been an area of professional focus for me.   The NuovoDoc "design for document systems interoperability" says it all. 

2.5 As a Developer.  I like the opportunity to develop code that is instructive and usable for public purposes.  I think I've always had that in mind, even when I was developing closed-source products.  But mostly I never developed software that couldn't be usefully given away, whether it was or not.  I think that began with my first "official" programming job (as a "Clerk Typist A") in a department of the University of Washington in 1959, and I can credit that to the inspiration of Theodore L. Lomax (at Boeing Renton in 1958) and Calvin E. Wright (my boss at the U of W Division of Counseling and Testing Services).  I also enjoy developing examples, how to's and samples/demonstrations of the use of tools and methodologies.  Somehow, authoring, development, architecture, science and scholarship all blend together for me.

2.6 As a Scholar/Teacher/Scientist.  I have a scientific interest in our understanding of the relationship that we have with computers and how we reconcile the closed-world of computation with the lived experience and physical reality in which computers are instruments for us.  The use of data to carry language is an appealing way to pick at and demonstrate topics of that inquiry.  I will say no more about that here beyond observing that I am fascinated by Michael Kaplan's blog, Sorting It All Out.  The curious will find more at Numbering Peano and sometimes via Professor von Clueless.

3. Honoring the Licenses and Materials

I am satisfied, at this point, that the licenses and permissions around the OpenDocument format, the Office 2003 XML Schemas, and the previews of the Office "12" Open XML formats (with Open Packaging Conventions) are permissive enough for me to undertake work that I can give away without problems.  Although I choose to provide notices and warnings concerning derivatives of the work of others, I don't find that a limitation for my own purposes (e.g., for ODMA contributions).  Here's my breakdown of what the various licenses and other declarations involve.

3.1 The Copyright Licenses

3.1.1 The Copyright Holders Reserve All Rights in the Specifications.  Microsoft reserves all copyright in the specifications of the Office XML formats and of the XML Schema Definitions for those formats.  The OpenDocument 1.0 specification is similarly copyright by OASIS Open with all rights reserved (OASIS 2005c).

3.1.2 Specifications May be Freely Distributed.  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 OpenDocument 1.0 specification may also be freely reproduced and distributed, according to the Notices (OASIS 2005c, Appendix F):

This document and translations of it may be copied and furnished to others ... provided that the above copyright notice and this paragraph are included on all such copies ... .  However, this document itself does [sic] not be modified in any way ... .

3.1.4 Microsoft Does Not Permit Derivative Works.  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.

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

3.1.5 OpenDocument 1.0 Provides for Specific Derivative Works.  The same notification paragraph in the OpenDocument specification has the following language with regard to derivative works of the specification (cf. 3.1.3):

... Derivative works that comment on or otherwise explain it or assist in its implementation may be prepared, copied, published and distributed, in whole or in part, without restriction of any kind, provided that the above copyright notice and this paragraph are included on all such ... derivative works.

3.1.6 I am not clear on suitable ways to preface the requisite copyright notice.  I can determine that later.  The most interesting case for me has to do with making an HTML hyper-document version of the OpenDocument Specification.  This would provide a version that can be linked to, tied to annotations and errata, and more-conveniently referenced and navigated, including on a reader's desktop, than the PDF-format official copy of the specification.  There's a non-OpenDocument OpenOffice.org version of the document that might provide a good start after translation to OpenDocument and transformation of the resulting XML.

3.1.7 I have no problem with honoring these conditions exactly.  Mostly I do not have to distribute copies of the specifications, whether OpenDocument 1.0 or the Microsoft specifications.  I will refer to them, and people can obtain their own copies as desired.  The possibility of a browser-navigable version of OpenDocument 1.0 is a nice nfoWare exercise at some point and it makes an easier way to refer to passages of the specification in discussions and related contributions.

3.2 Schema Usage: License Considerations

There are digital versions of the individual schemas that apply to the respective open-format definitions.   These raise interesting cases.

3.2.1 The Microsoft Schemas carry notices and licenses in the same form as the specifications (Microsoft 2003c).  Notice is carried in the schemas and there is the same exclusion of derivative works as for the specification documents (cf. Appendix A2).  However, reproduction is permitted.

3.2.2 The OpenDocument schemas carry copyright notices only (OASIS 2005d; 2005e; 2005f).  There is no other explanation or link to information in the downloadable copies of the Relax-NG schemas. 

3.2.3 I had been concerned about appeal to the schemas when repurposing material of the standardize formats.  Beside redistributing these schemas as separate files (permitted for the Microsoft ones), I had wondered about the prospects for derivative use of the schemas when what are intended to be the same elements are used in separate contexts, such as search results, document-management metadata, and so on.  I think it is easier than that:

3.3 Software Implementations: Patents and License Concerns

3.3.1 The format specifications do not specify implementations.  The OpenDocument 1.0 specification specifies conformance of XML documents to the format.  There are also conditions on conforming applications that read, process, and write the format.  But there is no condition on implementations, and the requirements for conformance are quite liberal (even loose, in some respects: cf. Table 3-1).  A public specification of OOX suitable as a public standard for an open format is not yet available for review, and these observations are not meant to imply any comparison of OpenDocument provisions with as-yet undocumented conformance conditions for OOX.  The common feature is that interpretation of the elements of the formats will need to be defined, but how those are implemented/preserved in the behavior of computer software won't be specified.

3.3.2 There are Patent Policy Statements applicable to both formats.   Each format has a blanket royalty-free patent-license declaration.  Sun Microsystems provides one for OpenDocument along with a covenant not to sue (OASIS 2005b).  Microsoft provides a royalty-free license for implementations of the Office 2003 Reference Schemas and their successors (Microsoft 2003b; 2005d).  Microsoft recently added a covenant not to sue to its current and proposed licenses (2005f).  Neither party has identified any of its patents that might apply.  If anyone else holds patents that might apply to implementations of these formats, they have been silent on the matter.

3.3.3 These licenses apply only to software that implements the formats (  This leads to the interesting topic of providing notice that software implementing the formats might work in ways that infringe on someone else's patents, and that adapting the software for some other purpose might make the royalty-free licenses (or protective covenants) unavailable.

3.3.4 Unfortunately, any software might violate patents.  It is not customary to remind software developers of that fact.  The closest we usually come is with disclaimers and requests for notification, as in the OpenDocument specification (OASIS 2005c, Appendix E):

"OASIS takes no position regarding the validity or scope of any intellectual property or other rights that might be claimed to pertain to the implementation or use of the technology described in this document or the extent to which any license under such rights might or might not be available; neither does it represent that it has made any effort to identify any such rights. Information on OASIS's procedures with respect to rights in OASIS specifications can be found at the OASIS website. ...

"OASIS invites any interested party to bring to its attention any copyrights, patents or patent applications, or other proprietary rights which may cover technology that may be required to implement this specification. ... "

3.3.5 However, when there is a royalty-free license or other covenant that protects implementers of the formats with regard to a specific (potential) patent holder, it seems polite to say so, whether a statement is required or not.  Unfortunately, the situation is not quite that simple:

3.4 Packaging Licensed Material

This section presents my personal approach to packaging, distribution, and licensing of materials subject to terms and conditions placed on the OOX and ODF specifications, schemas, and any related software.  I offer it as an example of one consistent approach.  It may be incompatible with requirements that you have. 

3.4.1 Everything in Plain Site, Known in Advance.  I have simple principles that apply to my packaging and distribution of works.  I apply the same principles with regard to the open-format specifications, schemas, and software that implements the specifications to any extent:

3.4.2 Distribution of Specifications.   The specifications are redistributable under already-available licenses.  This makes distribution easy:

3.4.3 Derivative Works of Specifications.   The OpenDocument 1.0 specification permits derivative works for a limited purpose (section 3.1.5).  To ensure honoring of the license conditions and to avoid inappropriate secondary derivatives, the Creative Commons Attribution-NoDerivatives license is appropriate for the derivative work.  The distribution of such derivatives would be safe-guarded in the same manner as the original specifications, with identification of the location of the authoritative version (section 3.4.2).

3.4.4 Distribution of Schemas.  There are two different cases:

3.4.5 Derivative Works of Schemas.  There is no provision for derivative works of schemas for OOX or ODF.  This means to me that application of validation procedures using the schemas must not result in creation of reproductions (for the ODF schemas) or of modified works for any of the schemas (3.2.3).

3.4.6 Software Implementations of the Formats.  The specifications and their licenses place no conditions on software that implements (accepts or produces) the formats.  No one who is identified as possibly having patents that might be infringed by implementations has indicated any intention to assert their patent rights.  However,

 3.4.7 Derivative Works of the Software Implementations.   For any implementations that I make of software that implements the formats, I intent to provide open-source licenses.   Typically, that means using the BSD template, as done for ODMA.  If chain of title and grant of patent license can be asserted, I will sometimes use the Academic Free License (Rosen 2005).  In any case, appropriate warnings about the licenses and covenants and claiming their applicability will be given for the isolated components.  There will be instructions that must be followed for notifying users, as in  In many respects, these are natural outgrowths of patterns for TROSTing software.

3.5 Tracking ODF and OOX Specifications

3.5.1 There is a great deal of chatter about these open-format specifications, what they (will) make available, and the degree to which they are open or not.  I have made side-by-side comparisons based on the specifications themselves and the official license statements that are available at this point in time (2005-12-19):

Table 3-1Comparison of Specifications and Licenses: ODF and OOX
Table 3-1:
ODF & OOX Approaches Compared

OASIS Open Document Format (ODF)

Microsoft Office Open XML (OOX) Format

with Sun IPR notice of 2002-12-11

with Sun  Patent Statement of 2005-09-29

with 2005-11-22 covenant not to sue and 2005-12-16  ECMA Submission

with Microsoft Schema Reference licenses (copyright and patent) Type of specification for an electronic-document format (706 pages, June 2005) for an electronic-document format (1901-page technical draft  Ecma submission as well as white papers, preview, and Office 2003 materials as of 2005-12-19) 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 [future: ECMA standards typically have no notices, are public and freely available and are automatically copyrighted; ISO/IEC specifications have all rights reserved and sometimes are available electronically without fee]
Schema Approach

OASIS Open Document Format (ODF)

Microsoft Office Open XML (OOX) Format 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 OOX representation of a complete Microsoft Office document.  The container approach is part of an abstract protocol (OPC) in which using a Zip package is one underlying implementation. licensing of schemas none stated (Sun Microsystems and OASIS Open copyright notices in the files) not determined [current licenses applicable for now] same notice and copyright license as on documentation
Compatibility & Conformance

OASIS Open Document Format (ODF)

Microsoft Office Open XML (OOX) Format 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 beyond the hint at (Microsoft 2005j) pertaining to forgivable uses of the schemas, the ECMA base-document submission has a rigorous definition of conformance and behavior of consumers and producers that is strongly directed to document-interchange fidelity (Ecma 2005). minimal conformance some preservation requirements (MUSTs) and allowances (MAYs and SHOULDs).  No minimum floor or "core" of elements and attributes is required of all implementations although this seems to have been required in the OASIS TC charter. The Ecma TC45 base-document submission defines strictly conforming consumers and producers as using only required features, always producing valid documents, and only consuming valid strictly-conforming documents.  The XML documents are required to be in Unicode using UTF8 and UTF16 encodings. foreign-element tolerance specific provisions for allowance and preservation of foreign elements, under non-duplication of ODF provisions (with it unclear what happens when ODF is extended) The Ecma TC45 base-document submission defines (non-strictly) conforming producers and consumers and their required and permitted behaviors on encounter of recognized and unrecognized extensions. custom content not determined specific allowance for custom XML incorporation started with Office 2003.  The Ecma TC45 base-document submission addresses custom content in the XML parts and the presence of additional content in the packages that carry Office Open XML format. underspecified features Cursory 2005-12-02 re-review identifies these: "2.2 Document Metadata" with arbitrary (as opposed to specifically-formed user-defined) elements;  "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); "15 Formatting Properties" permitting any attributes and elements under all <style:*-properties> elements, along with application-determined defaults; "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. Section 2, Conformance, of the Ecma TC45 base-document submission asserts that there is no undefined or unspecified behavior for strictly-conformant producers and consumers.
Patent Freedom Approach

OASIS Open Document Format (ODF)

Microsoft Office Open XML (OOX) Format

with Sun IPR notice of 2002-12-11

with Sun  Patent Statement of 2005-09-29

with 2005-11-22 covenant not to sue and future ECMA/ISO Submission

with Microsoft Schema Reference licenses (copyright and patent) royalty-free patent licensing Sun Microsystems "essential claims" royalty-free license Sun Microsystems will not enforce any of its patents, present or future covenant not to sue applies, with or without following license conditions 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 under the covenant, those portions of a software product that read and write the format 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.  The covenant not to sue will also be voided with regard to the suing party. patent-license notice none required license usable but not required under the covenant specific statement required

3.5.2 The end-games may arrive at interchange, interoperability, inter-convertibility, and independent document processor implementations, but the journeys are different.

4. Rights of Copyright Owners

In discussing copyright and licensing of copyright, it is important to understand the way that copyright is defined, what the exclusive (assignable and licensable) rights are, and what important terms such as collective work, compilation, and derivative work are in the language of copyright codes themselves.   All of the following material is taken directly from the United States Copyright Code (LoC 2000).  The selections are chosen to be informative about the copyright treatment of software, specifications, and documentation.  The source material should be consulted for additional considerations, including special exceptions.  Citation forms beginning "17 U.S.C" are to sections of Title 17 of the United States Code and are covered in the Copyright Code document.  The web page for access to that material should be consulted for recent changes.

4.1 Copyright Subject Matter

4.1.1 The Basic Condition.  There is a minimum, general qualification for being subject matter in which copyright can subsist (17 U.S.C. § 102(a)):

Copyright protection subsists, in accordance with this title [17 U.S.C.], in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. 

4.1.2 Fixing in a Tangible Medium.  There is a specific definition of what it takes for a work to be "fixed" (17 U.S.C. § 101):

A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

4.1.3 Computer Software is a Literary Work.  As subject matter of copyright, computer software is treated as a literary work (17 U.S.C. § 101, 17 U.S.C. § 102(a)):

“Literary works” are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.

4.1.4 Not All Aspects of Copyrighted Works Are Subject Matter of Copyright.  It is important to understand that not everything about the work (or that the work is about) is subject matter of copyright (17 U.S.C. § 102(b)):

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

4.1.5 Only Your Authorship is Original for Your Copyright.  With regard to the copyrightable subject matter, the copyright is only for that part that is original to you and there is a clear line between that and preexisting material (17 U.S.C. § 103):

(a) The subject matter of copyright as specified by section 102 includes compilations [4.3.2] and derivative works [4.3.1], but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

4.2 Exclusive Rights

4.2.1 The List of Six.  The copyright owner (the author's employer in the case of a work made for hire) has six exclusive rights with regard to the subject matter (17 U.S.C. § 106):

Subject to sections 107 through 121 [creating a variety of exceptions], the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works [4.3.1] based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

4.2.2 Public Display and Performance.  Public display and performance has specific meaning for subject matter of copyright (17 U.S.C. § 101):

To perform or display a work “publicly” means—

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

4.2.3 Exceptions and Fair Use.  Non-public display and performance is an exception to the exclusive rights of copyright owners.  There are other exceptions granted to libraries (for archiving and preservation), to owners of software (for backup), and for certain special classroom performances.  Perhaps of greatest importance in the case of specifications, documentation, software, and perhaps schemas is the fair use.  There is no automatic determination of fair use.  This portion of the code limits the applicability of fair use but leaves actual determination of the bounds within that to be resolved in the courts on a case-by-case basis. (17 U.S.C. § 101):

Notwithstanding the provisions of sections 106 and 106A [for exclusive rights, see 4.2.1], the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. 

4.3 Derivative Works, Compilations, and Collective Works

These terms are used heavily in discussion of open-source licenses.  They have specific meaning under copyright law and it is important to use the terms consistently.  The use of a preexisting copyrighted work in any of these ways is one of the exclusive rights of the preexisting work's copyright owner (section 4.2.1).

4.3.1 Derivative Works (17 U.S.C. § 101):

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.

4.3.2 Compilations.  Publication of compilations involves reproducing of works.  A compilation is different than a derivative work, though it might contain derivative works and it might have derivative works (but see 4.1.5).  Specifically (17 U.S.C. § 101):

A “compilation” is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term “compilation” includes collective works.

4.3.3 Collective Works. Collective works are treated as compilations (4.3.2).  (17 U.S.C. § 101):

A “collective work” is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole. 

A. Source Materials

A1. Available Material and Licenses

Microsoft proposes to make the OOX formats available under the same terms as existing (pre-OOX) Office 2003 XML Reference Schemas.   Current materials, license information, and previews are available for on-line access and download:

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 (Microsoft 2003a):

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 (OOX for short).

A4. References

Berlind, David (2005).
Top Open Source Lawyer Blesses New Terms on Microsoft's XML File Format.  Between the Lines: The Blog for Discriminating Tech Buyers, Blogs section, ZDNet, 2005 November 28, 8:02am.  Available at <http://blogs.zdnet.com/BTL/?p=2192>.
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. (2001a)
RELAX NG Specification.  Committee Specification, 2001 December 3, 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).
     There is a tutorial that is very useful in understanding RELAX NG schemas (Clark & Murata 2001b).  Although the OASIS OpenDocument 1.0 specification cites this on-line document, the ISO standard is freely available (ISO/IEC 2003).
Clark, James., Murata Makato, eds. (2001b)
RELAX NG Tutorial.  Committee Specification, 2001 December 3, RELAX NG TC, Organization for the Advancement of Structured Information Standards (OASIS), Billerica, MA.  Available at <http://oasis-open.org/committees/relax-ng/tutorial-20011203.html> (accessed 2005-11-23).
Ecma (2005).
Office Open XML Document Interchange Specification: Base Document. Submitted to Ecma TC45 by Microsoft December 2005.   Document Ecma/TC45/2005/008.  Available at <http://www.ecma-international.org/activities/Office%20Open%20XML%20Formats/> (accessed 2005-12-19)
     The base document is available in Zip format (9.7 MB containing the 14MB PDF).  The PDF is available directly, for those who prefer that, and the slides of the General Assembly presentation (2.3MB PowerPoint with notes or 2.0 MB PDF) are also available.  The 1901-page document has an active (click-the-links) table of contents and is relatively easy to navigate and to search.
      Section ("clause") 2 contains rigorous conformance definition and describes its important purposes.
FSF (2002).
Various Licenses and Comments About Them.  GNU Project, Free Software Foundation (Boston, MA: 1999, 2000, 2001, 2002).  Available at <http://www.gnu.org/philosophy/license-list.html> (accessed 2005-12-04)
Galli, Peter (2005).
MS Office XML Formats Not OK with GNU.  Linux & Open Source News, eWeek.com (2005 June 17).  Available at <http://www.eweek.com/article2/0,1759,1829355,00.asp?kc=EWRSS03119TX1K0000594>.
     The statement on which the fuss is based is one attributed to an interview with Richard Stallman: «The conditions imposed by the current license governing the use of the formats are "designed to prohibit all free software. It covers only code that implements, precisely, the Microsoft formats, which means that a program under this license does not permit modification," Stallman told eWEEK in an interview.»  Notice the leap from a license with a limited applicability to the presumption that it prohibits anything else, yet the same logic applies to anyone's offering of a similarly-contingent royalty-free license (or a covenant) whether there is a requirement for notice or not.  It's the license that's contingent, not the modifiability of the software. 
ISO/IEC (2003).
Information Technology — Document Schema Definition Language (DSDL) — Part 2: Regular-grammar-based validation - RELAX NG, First edition 2003-12-01, International Standard ISO/IEC 19757-2:2003(E).  Freely available as Zipped Adobe PDF file at <http://standards.iso.org/ittf/PubliclyAvailableStandards/c037605_ISO_IEC_19757-2_2003(E).zip> (accessed 2005-11-22).
LoC (2000).
Copyright Law of the United States and Related Laws Contained in Title 17 of the United States Code.  Circular 92, U. S. Copyright Office, Library of Congress (Washington, DC: April 2000).  Adobe PDF file available via <http://www.copyright.gov/title17/> (accessed 2005-12-05).
Microsoft (2003a).
Legal Notice: Microsoft Office 2003 XML Reference Schemas.  MSDN On-Line, Microsoft Software Developer Network, Microsoft Corporation, Redmond, WA (undated).  Available at <http://msdn.microsoft.com/library/en-us/odcXMLRef/html/odcXMLRefLegalNotice.asp?frame=true>.
Microsoft (2003b).
Office 2003 XML Reference Schema Patent License.  File Formats and Schema Licensing, Intellectual Property, About Microsoft, Microsoft.com, Microsoft Corporation, Redmond WA (2003-12-03; updated 2005-01-27).   Available at <http://www.microsoft.com/mscorp/ip/format/xmlpatentlicense.asp>.
     This license requires explicit notice in source code, documentation, and licenses.  The license and notices must require that all copies and derivative works preserve the notice.  This last appears to require preservation of the notice whether or not the conditions of the license apply.  This is not, however, a narrowing of the license in the sense prohibited by the GPL, although it certainly suggests that the original work cannot be a derivative work under the GPL.  The remedy that I propose (and would employ in any case) is to minimize and segregate the (original) software that implements the format such that non-derivative substitutes can be made when the terms and conditions of the license are unacceptable or have simply become inapplicable.  This says nothing about whether or not Microsoft might have patents that apply to the derivative work (let alone the original work), merely that the license is not being accepted.
Microsoft (2003c).
Office 2003 XML Reference Schemas.  5.56 MB Microsoft Installer file xsdref.msi, Microsoft Download Center, Microsoft.com, Microsoft Corporation, Redmond WA (version 4, 2005-01-14).  Available at <http://www.microsoft.com/downloads/details.aspx?familyid=fe118952-3547-420a-a412-00a2662442d9&displaylang=en>.

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
     The "covenant not to sue" in this proposal is not the one that has been introduced for the Office 2003 XML Reference Schemas. -- dh:2005-11-22
Microsoft (2005e).
Open Packaging Conventions: Specification and Reference Guide, version 0.75 pre-release draft.  Microsoft Corporation, Redmond, WA, 2005-09-13.  Available for download in a Microsoft-signed self-extracting Zip file under cover of a Technical Document Agreement at <http://www.microsoft.com/whdc/xps/xpspkg.mspx>.  Also see XPS 0.75 (Microsoft 2005i).
Microsoft (2005f).
Microsoft Covenant Regarding Office 2003 XML Reference Schemas.  Office XML Reference Schemas Licensing, Microsoft Office System Product Information,  Microsoft Office Online, Microsoft Corporation, Redmond, WA (undated).  Web page, available at <http://www.microsoft.com/office/xml/covenant.mspx> (accessed 2005-11-22).  Referenced in the open letter from Steve Sinofsky, this covenant is in effect as part of Office 2003 XML Reference Schema licensing.
Microsoft (2005g).
Office 2003 XML Reference Schemas License Overview.  Office XML Reference Schemas Licensing, Microsoft Office System Product Information,  Microsoft Office Online, Microsoft Corporation, Redmond, WA (undated).  Web page, available at <http://www.microsoft.com/office/xml/licenseoverview.mspx> (accessed 2005-11-22).
     The November 2005 additional covenant and an explanation of how it applies to the previous licensing is included, along with links to elements of the previous licensing requirements.  The licenses remain in effect and usable.  Briefly, the covenant is not a license but a commitment on the part of Microsoft not to assert any claims against implementations of the formats except for an user of the formats that asserts their own patent claims against implementation of the formats and sues Microsoft or one of its affiliates.  The previous license terms remain available and exercisable by implementers.
     These licenses are concrete in that they apply to existing, specific licensed works.  In addition, these license are proposed as the models for future licenses of the Office "12" Open XML Schemas and related initiatives, such as the Open Packaging Conventions that are used as part of the Office "12" Open XML formats.
Microsoft (2005h).
New Covenant vs. Old License for Office 2003 XML Reference Schemas.  Office XML Reference Schemas Licensing, Microsoft Office System Product Information,  Microsoft Office Online, Microsoft Corporation, Redmond, WA (undated).  Web page, available at <http://www.microsoft.com/office/xml/newvsold.mspx> (accessed 2005-11-22).
     This page under the License Overview describes what the covenant provides.  The covenant can be relied upon immediately in applications of the Office 2003 XML Reference Schemas.  The royalty-free license arrangement continues to be usable and available for those who prefer it.  The covenant applies whether or not the royalty-free license is employed.
Microsoft (2005i).
XML Paper Specification, version 0.75 pre-release draft.  2005 September 13 update, 2.25MB Zip self-extracting file,  Available for download under read-review-feedback Technical Document Agreement at <http://www.microsoft.com/whdc/xps/xpsspec.mspx> (accessed 2005-09-24).
     This application of the Open Packaging Conventions is important as an illustrative use of OPC and for its relationship to Office "12" and other technologies being developed along the Windows Presentation Foundation (WPF) parade to Windows Vista.  In document-management, record-management and document-processing regimes, OPC is important, as are both XPS and the OOX formats. 
Microsoft (2005j).
Ecma International Standardization of Open XML File Formats Frequently Asked Questions.  Tech Central, The Future of Microsoft Office: Get Information About the Next Release, Microsoft Office Online.  Available at <http://www.microsoft.com/office/preview/developers/ecmafaq.mspx> (accessed 2005-12-18).
     The benefit of the covenant not to sue is clarified:  "Anyone is free to work with a subset of the specifications, and anyone is free to create extensions to the specifications. A 'conformant' use is simply one that does not modify the specification."
Milton, Vicki (2005).
Re: Public Level of the XPS and OPC Specifications.  Fifth Post on the thread, "I hope this format starts to leak before the next OS," XML Paper Specification (XPS) discussion forum, Windows Vista Development Forum Group, MSDN Communities on-line forums, Microsoft Corporation, Redmond, WA: 2005-11-29T01:44.  Available at <http://forums.microsoft.com/MSDN/ShowPost.aspx?PostID=149951&SiteID=1>.
     Vicki Milton of the Microsoft development team clarifies that the Technical Document Agreements (TDAs) are not non-disclosure agreements and public discussion is not prohibited.  I re-examined the OPC specification and I still find the legal notice inside the document frightening enough to dissuade me from much public discussion until a new edition of those specifications is issued with friendlier TDA.
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).
OASIS (2005d).
OpenDocument v1.0 Relax-NG Schema.  Normative schema extracted from the specification (OASIS 2005c).  Organization for the Advancement of Structured Information Standards (OASIS), Billerica, MA. Relax-NG file, 2005 May 1.  Available at <http://www.oasis-open.org/committees/download.php/12571/OpenDocument-schema-v1.0-os.rng> (accessed 2005-06-08).
OASIS (2005e).
OpenDocument v1.0 Manifest Relax-NG Schema.  Normative schema extracted from the specification (OASIS 2005c, Chapter 17).  Organization for the Advancement of Structured Information Standards (OASIS), Billerica, MA. Relax-NG file, 2005 May 1.  Available at <http://www.oasis-open.org/committees/download.php/12570/OpenDocument-manifest-schema-v1.0-os.rng> (accessed 2005-12-02)
OASIS (2005f).
OpenDocument v1.0 Strict Relax-NG Schema.  Strict schema extracted from the specification (OASIS 2005c, Appendix A).  Organization for the Advancement of Structured Information Standards (OASIS), Billerica, MA.  Relax-NG file, 2005 May 1.  Available at <http://www.oasis-open.org/committees/download.php/12569/OpenDocument-strict-schema-v1.0-os.rng> (accessed 2005-12-02)
     The schema definition in this file derives the strict schema by including the normative grammar (OASIS 2005d) from a local file and over-riding the fifteen definitions of patterns that might have strict and non-strict components.
OSI (2005a).
Open Source Definition 1.9.  Open Source Initiative (undated).  Available at <http://opensource.org/docs/definition.php>.  (accessed 2005-12-04)
     There is a new item (10) that did not appear in the original OSD 1.9 document.  This obscurely-worded clause is directed at specific forms for obtaining assent to a license as a contractual agreement.  The AFL and OSL licenses apparently satisfy the intent of that clause well-enough to retain their OSI-approved status (Rosen 2005, pp.206-207).
OSI (2005b).
Open Source Initiative (OSI).  Web site home page, <http://www.opensource.org> (accessed on 2005-12-04)
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.
     There is extensive discussion of GPL compatibility, sublicensing, patent defenses, and the crafting of an academic (AFL) and a reciprocal (OSL) license that can be applied to any copyrightable work.  There are also wise words that apply to difficulties that arise when amateurs (including me) write licenses.  Notices on the OSI site asserts that Rosen now endorses only the later AFL 2.1 and OSL 2.1 licenses (OSI 2005b).  Those or later versions should be relied upon instead of the versions in the book.  Rosen disagrees that the AFL is incompatible with the GPL.
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/>.

A5. Standards Organizations

The use of recognized standards organizations for establishing formal document-format specifications of formats is  a prominent concern.  The following organizations are mentioned in this regard.  Each organization has a site where you can find out more about their operation, how specifications are developed, who is allowed to vote on the approval of charters and specifications, and who is allowed to participate in various other ways.

0.81 2005-12-23-15:35  Reflect availability of the Ecma TC45 OOX base document
Draft provisions around conformance and approach are reflected in the analysis.  Routine addition of links and editorial tweaks occurs without advancing the version.
0.80 2005-12-18-21:50 Tracking Progress
The small steps of progress into 2006 are tracked here as needed.  Adjustments will be accumulated in versions of a single page until something momentous arises.   My resolution of open-source licensing approaches and the Microsoft FAQ on the Ecma submission and covenant not to sue are tied into the analysis.
0.75 2005-12-06-21:59 Take Affirmative Approach to Open-Format Adoption
Recast in terms of how I approach open-format support and adoption as an user and as a developer of document-processing software.
0.65 2005-11-30-19:49 Reflect the Intention to Submit Office XML to ECMA
OK, there's more reason to update the table as the saga continues.  I am still putting the constructive efforts elsewhere, and simply updating this analysis as events require.
  This will clear the decks for a more-straightforward 0.75 analysis.
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 Office Open 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 2005-12-18-20:52 -0800 (pst) by orcmid
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