Microsoft patent non-assertion covenant is remarkable

David Berlind at ZDNet has an interesting analysis

Microsoft has issued a declaration — something it calls the Open Specification Promise — that it won't assert certain Web services patents it holds (or may hold in the future). Martin Lamonica reports:

Microsoft is pledging not to assert its patents pertaining to nearly three dozen Web services specifications–a move designed to ease concerns among developers by creating a legal environment more friendly to open-source software….The software giant published on Tuesday the Microsoft Open Specification Promise (OSP) on its Web site.

This isn't the first time that Microsoft has moved its intellectual property in the open direction (along a spectrum of closed to open), particularly when it pertains to something like Web services that's so fundamental to technology. But in many such cases, there were enough strings attached to keep open source developers from making use of Microsoft's IP even though it was being made available in some open context.  Some of Microsoft's anti-spam technologies come to mind. The licensing language for Microsoft's Office Open XML document format has gone through several iterations over the last two years, each one more open-friendly than the last.  But in this case, Microsoft cut to the chase.  Even Larry Rosen, the open source lawyer that wrote the book on open source licensing, has given the OSP his blessing.  While Microsoft is refraining from directly addressing the open source-angle, Lamonica wrote:

Lawrence Rosen, an open-source software lawyer at Rosenlaw & Einschlag in Northern California, gave open-source developers a green light to work with the Web services standards….”This OSP enables the open-source community to implement these standard specifications without having to pay any royalties to Microsoft or sign a license agreement. I'm pleased that this OSP is compatible with free and open-source licenses,” Rosen said in a statement on Microsoft's OSP site.

Another sign of acceptance could also be the silence (as of the time I published this blog) from two of the more vocal bloggers when it comes to vetting the openness of Microsoft's announcements. From his blog, IBM's vice president of standards and open source Bob Sutor offered none of his own commentary and instead only linked to two stories about the move: one the aforementioned story by Martin Lamonica and the other a review of the move by intellectual property lawyer Andrew Updegrove (who also serves as counsel to OASIS — the consortium under which a lot of the Web services specifications development takes place). Sun's chief open source officer Simon Phipps has yet to post anything to his blog. Both men are customarily very fast to expose what they view as smoke or mirrors in Microsoft's intellectual property-related announcements. That's not to say such analyses aren't forthcoming. For all I know (I haven't contacted either of them yet), lawyers from both companies could be pouring through the documentation right now, looking for red flags to make hay about.

Royalties (payments that developers must make to patent or copyright holders) are complete dealbreakers when it comes to deciding whether something is open or closed. But what few people know is that signing a license agreement, even if the technology in question is royalty-free, is another.  Requiring the signed execution of license — known as “privity” in lawyer-land — flies in the face of open source because open source allows for sublicensing (the ability to take code that was licensed to you and pass it on without going back to the licensor for permission). 

Users and developers need only agree to the license terms that come packaged with open source code. They don't have to send a signed document back to the licensor. In fact, Microsoft's privity requirement when it comes to its CallerID antispam technology was (and still is, if you ask me) the key stumbling block to the creation of an Internet anti-spam standard. Amongst those orginally charged with investigating the possible creation of such a standard, the open source-“brained” technologists walked away from the initiative when Microsoft's licensing restrictions — mainly the privity requirement — came to light.

All this said, Microsoft's motives for declaring the OSP are relatively transparent. In fact, Microsoft came right out and said as much. Again, according to Lamonica:

In an FAQ on the OSP page, Microsoft said that the move is designed to get more people to use Web services protocols–a set of XML-based standards meant to make products from different vendors work well together….”It was a simple, clear way, after looking at many different licensing approaches, to reassure a broad audience of developers and customers that the specification(s) could be used for free, easily, now and forever,” according to the FAQ.

Microsoft, I believe, is being very practical about its future here.  Looking at the .NET net architecture that the company has so heavily invested in — an architecture that's more about Web services than it is anything else — it is absolutely critical for the software giant to get its fair share of the next wave of IT spending, a lot of which will have to do with Web services and componentized software. If intelletual property rights in any way shape or form slow down the adoption of Web services, then everybody in the Web services ecosystem, Microsoft included, loses.  By taking this high road, Microsoft is recognizing that if the Web services ecosystem is allowed to flourish, that the resulting slice of the pie it gets (others will get their slices too) will be far larger than entire pie it might have been entitled to had it kept its patents to itself. 

More importantly, the issuance of this non-assertion covenant is a signal from Microsoft that it is quite prepared to change its colors and its cultures. Provided there are no gotchas (and Larry Rosen's endorsement is usually a pretty good sign their aren't), this is a new Microsoft.  One I really haven't seen yet. One I'm sure the industry will be looking forward to seeing more of.

Sun's Simon Phipps has now posted about the Promise, and he mentions that I didn't send a heads-up email that would have allowed him time to think about the announcement in depth before it was made.  Simon, I really apologize.  This was far from my intent – it was a question of neither hand knowing what the other wasn't doing.  And of the general turbulence of being at DIDW.  So I promise it won't happen again, and look forward to meeting you in person.

In light of this, it's a mark of Simon's magnanimity that his comments were generally very positive.  He made some technical points that can really only be decoded by legal experts – so I will pass them along.

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Kim Cameron

Work on identity.

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