What is Wrong with RAND?

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| I wrote yesterday that RAND terms can be discriminatory, and that in fact due
| to the Microsoft OSP, OOXML is discriminatory against the GPL and Open
| Source licenses, despite being made available under RAND terms. Microsoft's
| Jason Matusow responded with a blog entry suggesting I need to bone up on
| standards and licenses. Why Microsoft folks can't be polite is a mystery to
| me, but I persist in responding with decency. He thought it would be helpful
| to hear from lawyers on the subject. So, I did some research for him, and I
| find that there are quite a number of lawyers who agree with me.
| So here you are, Jason: what is wrong with RAND from folks whose credentials
| you will respect. They are not radical or extreme, and neither is Groklaw, as
| you will see. The problem, rather, is that Microsoft is wishing that time
| would stand still for it, and that the old, proprietary software model were
| all that there was in the world. However, like the music industry,
| Microsoft -- and standards bodies -- now have to cope with the new and modern
| software development model and licenses that foster and underpin it, not just
| the old-fashioned, closed, and patent-licensed model that Microsoft
| represents. And isn't it you at Microsoft, and your friends at CompTIA, who
| have told the governments of the world that one business model should not be
| favored over any other? How much less should a standard?



Buy, Cheat, Steal, and Lie: The OOXML Story

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| A 2007 decision from the U.S. Court of Appeals for the Third Circuit may end
| up coming back to haunt Microsoft in their ongoing U.S. antitrust battle. The *
| case revolved around claims by Broadcom that Qualcomm had deliberately
| included its patents in the Universal Mobile Telecommunications System
| standard in order to create a monopoly for its products. The appeals court
| held that if a company acts deceptively to gain adoption of a standard that
| then results in a monopoly to their advantage, they can be held to have
| violated anti-trust laws, irrespective of their right to determine the use of
| their patents. Interestingly enough, the Court of Appeals ruling relies on a
| Federal Trade Commission ruling which in turn relied on — drumroll, please —
| United States v. Microsoft, the very case that put MS under supervision in
| the first place. * * * * *
| All we can say is, we hope that with this many available avenues, something
| is done to rectify the farce acted out over the last several months.



Another Reason Microsoft's OSP Isn't Good Enough

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| Eek. I understand that to be saying that there are gaps in OSP coverage.
| You'll get documents you can't legally open unless you are using Microsoft's
| software, because the extensions found in Office but not in OOXML proper, so
| to speak, are not covered. Let me explain what I think they are saying this
| means. * *
| We knew we'd get documents we couldn't open effectively from a technical
| standpoint, without at least losing something in the translation. But if
| extensions to the OOXML format, as exemplified in Microsoft Office 2007, are
| not covered by the OSP, and evidently they are not, when you get a document
| with, say, spreadsheet macros, or DRM, what legally protects you if open the
| document? All Microsoft has to do, then, is extend the format, as it already
| has, and you then can only interoperate with them if you use Microsoft
| software too. So. OSP gaps. Nice work if you can get it. * * *


OOXML IPR problems

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| Anyway, the phrase that caught my eye last night in one of the presentations
| I was sent was “No IPR problems!”.
| I immediately thought “That should have an asterisk.” As in:
| “No IPR problems!*”
| * If you don’t care about 1) everything you need to use the spec, or 2) are
| interested in using free software.


Microsoft patents by Brian Jones

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| For fun we just did a quick search of published US patent applications
| with "Brian Jones" as an author, and "Microsoft" as the assignee.
| [...]
| Some of these, like the packing ones, seem to apply directly to OOXML. What
| isn't clear to us is why Microsoft would pursue patent protection for patents
| rights that their are promising that they won't assert over users of OOXML. *


Wishful Spinning

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| OOXML gets adopted. More and more projects are started. Let's see which of
| these would survive without funding. Meanwhile a spin factory sends out
| success stories that most bloggers find worthless to discuss. It is possible
| to get the Krauts on board that are supposed to review OOXML but would OOXML
| survive a review by the crowds? * *


Digging in the Comments: Patents

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| Patent licensing is probably the most important aspect for all third parties
| that want to implement or use the Open XML specification. Unfortunately the
| Ballot Resolution Meeting cannot discuss these aspects because only technical
| and editorial issues would get resolved. *
| [...]
| When you have a patent which covers Open XML and you refuse to license it,
| the standard process gets stalled. Large companies in the standardization
| process are reluctant to use that nuke option. Given the ambush that the
| software patent practice means today it is quite possible that Open XML
| infringes a patent and all parties eventually have an obligation to license
| it. * *


Patent threat looms large over OOXML

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| "If OOXML goes through as an ISO standard, the IT industry, government and
| business will encumbered with a 6000-page specification peppered with
| potential patent liabilities" said NZOSS President Don Christie. *
| "Patent threats have already been used to spread doubt amongst organisations
| keen to take advantage of the benefits of open source. No one knows whether
| such claims have any merit, but it is calculated to deter the development and
| use of open and alternative toolsets." *


Cyberlaw OOXML Seminar 14 December

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| However, this raises the issue - what assurance does a developer have that
| such a large specification is not the subject of third party patent claims? *
| * * * ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ ^^^^^^^^^^^^^^^^^^^
| The pedigree of the specification is certainly no reason for hope, Microsoft
| has been the target of third party patent claims for some time now including
| some high profile losses in patent suits. The fact that the specification has
| been developed behind closed doors and on a fast track means that there has
| been no adequate opportunity to evaluate the likelihood of third party patent
| claims against the specifications. The sheer size of the document suggests
| there will be at least a couple hiding in there somewhere. * * *


ISO warned about possible patent violations of DIS29500 (aka OOXML)

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| I have just send the following email to ISO members (you can find some of
| their email addresses on the INCTIS website) to warn them about the possible *
| patent ambush...


EC probes OOXML standards-setting process

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| A spokesman for the European Commissioner for Competition, Neelie Kroes, told
| The Register that regulators were continuing to scrutinise interoperability
| issues related to Microsoft’s products following complaints from the
| Committee for Interoperable Systems (ECIS) group. *
| As part of that process, the EC formally contacted a number of national
| standards bodies, including the Norwegian Standards Institute (NSI),
| requesting more details about possible irregularities in the OOXML
| standardisation process. *
| [...]
| “It must be stressed that it is not the Commission's intention to influence
| the outcome of this process, but the Commission considers it essential to
| ensure that European competition law is not violated in the course of the
| standard setting process,” he said in an email to El Reg. *
| In January the EC began formal anti-trust probes against Microsoft in two
| cases where it was alleged that the multinational firm had abused its strong
| market position. As part of the investigation into the first case, the
| Commission said that it would scrutinise OOXML on the grounds that the
| specification doesn't work with those of competitors. * *


Could an Appeal Derail OOXML?

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| Meanwhile, the normal ISO process means that OOXML will not become an
| official standard until at least the two-month waiting period runs out.


Martin Bryan: we are getting “standardization by corporation”

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| A November informative report of Martin Bryan, Convenor, ISO/IEC JTC1/SC34
| WG1 highlights the fallout of the ECMA-376 fast-track process for ISO. He
| says he is 'glad to be retiring before the situation becomes impossible' *
| [...]
| In what is an astonishingly outspoken report, Martin Bryan, Convenor, ISO/IEC
| JTC1/SC34 WG1 has given us insight into the total mess that Microsoft/ECMA
| have caused during their scandalous, underhand and unremitting attempts to
| get - what is a very poorly written specification {i.e. DIS 29500 aka OOXML,
| AR} - approved as an ISO standard. … * *


Dysfunctional ISO - Courtesy of Microsoft


Microsoft accused of stacking ISO committee

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| In a memo sent following his last meeting as head of the working group on
| WG1, which is handling Microsoft’s application to make the Word format an ISO
| standard as ECMA 376, outgoing Governor Martin Bryan (above), an expert on
| SGML and XML, accused the company of stacking his group. *


EU Initiates Investigation Against Microsoft OOXML Push

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| But with Steve Ballmer taking over as CEO, there was supposed to be a kinder,
| gentler Microsoft - one that would play nicely with its competitors. *When
| antitrust regulators in turn challenged this new Microsoft, it issued not
| challenges to fight to the end to prove that it had done nothing illegal, but
| statements promising to "cooperate fully." * *
| But at the same time, Microsoft is still a tough competitor. *As Microsoft's
| Director of Corporate Standards Jason Matusow famously warned at his blog
| last year: *
| * * Make no mistake; all parties are looking at the full picture to find
| * * strategies that will result in the outcome they desire. Provided - of
| * * course - that they do so within the context of the rules that apply to
| * * the process, this is exactly what one should expect to happen. It is
| * * going to be a very interesting next few months. * *
| Indeed, the months that followed proved to be interesting indeed. *Microsoft
| said that some of its employees became over zealous, most flagrantly in
| Sweden, where marketing assists were promised to several business partners as
| incentives to join the national standards committee and vote for OOXM. *


EU Commission Investigating Microsoft's MSOOXML Push

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| I hope they think to investigate the smear campaigns that seem to always
| happen to anyone on the other side from Microsoft. What happened to Peter
| Quinn was by no means unique. *


Corrupt countries were more likely to support the OOXML document format

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| Is this just a random coincidence? The median of the CPI index of the above
| mentioned 70 countries is 3.95. Of the most corrupted half (CPI index less
| than 3.95) 23 or 77% voted for approval (approval or approval with comments)
| and 7 or 23% for disapproval; 5 abstained. Of the least corrupted half (CPI
| index more than 3.95) 13 or 54% voted for approval and 11 or 46% voted for
| disapproval; 11 abstained - see the table below. * * *


Microsoft accused of more OOXML standards fiddling

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| However the 11 new countries are refusing to say how they will vote. These
| include Cote d'Ivoire, Cyprus, Ecuador, Jamaica, Lebanon, Malta, Pakistan,
| Trinidad and Tobago, Turkey, Uruguay and Venezuela. Most people seem to think
| that these have been put there by Vole to make sure the standard gets pushed
| through. * *