Tuesday, November 22, 2005

Forum Shopping for Office Document Standards Bodies?

Microsoft announced on November 21, 2005 that the Microsoft Office Open XML formats—to be implemented next year by the Office 12 version of Word, Excel, and PowerPoint—would be submitted to the European Computer Manufacturers Association (ECMAInternational) and ultimately to the International Standards Organization (ISO, a.k.a. International Organization for Standardization). Backers of Microsoft's ECMA sumission are Apple, Barclays Capital, the British Library, BP, Essilor (France), Intel, NextPage, StatOil ASA and Toshiba. The story quickly rose to the top at Memeorandum. Update: November 30, 2005. For more details on the Office Open XML formats and their submission to ECMA for standardization, see Brian Jones' Office XML Formats blog and Robert Scoble's e-mail interview with Jean Paoli, a co-editor of the W3C XML 1.0 specification and the driving force behind Microsoft's InfoPath application. Jupiter Research's Joe Wilcox sheds light on Microsoft's choice of ECMAInternational as the standards body.

Update December 9, 2005: eWeek's Peter Galli reports that "Microsoft's Office Standard Gets Green Light" from ECMA "[a]t the General Assembly meeting held in Nice on December 8, 2005."

Update December 13, 2005: Microsoft published "Ecma International Standardization of OpenXML File Formats Frequently Asked Questions" and ZDNet's David Berlind "Microsoft releases FAQ on Ecma submission" article comments on the FAQ.

OpenOffice.org and its cohorts—Adobe, Corel, IBM, KDE, and Sun Microsystems—chose the Organization for the Advancement of Information Standards (OASIS) as the initial standards body for the OASIS Open Document Format for Office Applications (OpenDocument format or ODF). OASIS submitted the ODF standard to the ISO International Electrotechnical Commission's Joint Technical Committee (ISO/IEC JTC1) on September 30, 2005. Microsoft has had a long-term relationship with ECMA, having participated in the ECMAScript (JavaScript) standardization process and later submitted .NET's C# language and the Common Language Infrastructure (CLI) for ECMA and ISO/IEC standardization. Sun Microsystems, the commercial force behind OpenOffice.org, has favored OASIS since the origins of the Electronic Business XML (ebXML) and Universal Business Language (UBL) standardization process. OASIS's aegis extends to many Web services standards, such as UDDI 2.0 and 3.0.2, WS-Security, and Web Services Distributed Management (WSDM). Microsoft refused to support ebXML and UBL but was a very active participant—together with IBM—in the development of UDDI the and WS-Security specifications, plus the OASIS standards processes. Microsoft's choice of ECMA, which has no history in the document standards business, appears to me to be an example of standards-body "forum shopping." Forum Shopping Defined Wikipedia defines "forum shopping" as the "the practice adopted by some plaintiffs to get their legal case heard in the court thought most likely to provide a favourable judgment, or by some defendants who seek to have the case moved to a different court." For example, it's a common practice for individual and class-action plaintiffs to attempt try product liability cases in southeastern Texas state courts because these courts have a history of making unusually large awards to plaintiffs. Similarly defendandants in employee non-competition actions prefer California state courts, because California state law generaly favors individual rights and disdains corporate non-compete clauses. An example is the recent action filed in Washington state court by Microsoft against Google and Kai-Fu Lee, a former vice president of Microsoft's Interactive Services Division. Google, in turn, filed a motion in the California state court to throw out Microsoft's Washinton complaint. At present, the Washington action is scheduled for trial in early 2006. Note: The same CNet News.com article also describes Microsoft's non-compete action against Adam Bosworth and Tod Neilsen, who eventually ended up at Google and Borland, respectively. Click here for more on Bosworth at Google. Shopping for Standards Bodies that Support Your View of Intellectual Property Rights Primary candidates for "open" XML document format standards bodies are the W3C, OASIS, ECMA, and, possibly, IETF. (IETF is the standards body for the Atom 1.0 XML syndication format.) There is, however, considerable controversy on what constitutes an "open standard." Microsoft patent attorney Nicos L. Tslilas contends in his recent "The Threat to Innovation, Interoperability, and Government Procurement Options From Recently Proposed Definitions of 'Open Standards'" paper that standards with reasonable and non-discriminitory (RAND) patent licenses qualify as "open standards." Note: "Government Procurement Options" in the paper's title obviously refers to the Commonwealth of Massachusetts' decision to restrict state purchase of office productivity applications to those that support ODF. Following are links to intellectual property rights policies of the preceding four standards bodies, plus ISO/IEC:

Note: GTW Associates' "Intellectual Property Rights Policies of Selected Standards Developers" page has links to most recognized standards-setting organizations, except IETF. ECMA, ISO/IEC, and OASIS fully support RAND patent licensing; OASIS also defines a royalty-free (RF) licensing mode.

W3C "seeks to issue Recommendations that can be implemented on a Royalty-Free (RF) basis." However, section 7.5.3 of W3C Patent Policy, "Alternative Licensing Terms," permits a Patent Advisory Group (PAG) to "propose that specifically identified patented technology be included in the Recommendation even though such claims are not available according to the W3C RF licensing requirements of this policy."

Here's the IETF's IPR policy:

In general, IETF working groups prefer technologies with no known IPR claims or, for technologies with claims against them, an offer of royalty-free licensing. But IETF working groups have the discretion to adopt technology with a commitment of fair and non-discriminatory terms, or even with no licensing commitment, if they feel that this technology is superior enough to alternatives with fewer IPR claims or free licensing to outweigh the potential cost of the licenses.

Note: The IETF would be a logical candidate for standardizing Microsoft's recently announced Simple Sharing Extensions for RSS and OPML (SSE), but SSE's close relationship with RSS 2.0 appears to have caused them to license copyrights in the spec under the Creative Commons Attribution-ShareAlike License (version 2.5). RSS 2.0 uses this license. So far, there's no indication that Microsoft intends to extend SSE to Atom 0.3.

Thus ECMA and OASIS became the finalists in the shopping list, but Sun pre-empted OASIS with ODF. Only ECMA remains to Microsoft as an unabashed champion of RAND licensing. However, Microsoft's initial offer of RF-mode licenses for the Office 2003 XML schema and subsequent change to a "covenant not to sue" moots the RAND-mode licensing issue for all forums.

ECMAInternational is an European organization, so the European Union's xenophobic bureaucrats might consider ECMA preferable to US-based OASIS as the standards body for the millions (or billions) of mostly superfluous Microsoft Office documents the EU produces per year.

An advantage of ECMA appears to be the speed at which standards emerge from TCs. For example, Microsoft, Hewlett-Packard, and Intel submitted the C# and CLI specifications to ECMA on October 31, 2000 and ECMA ratified the two standards on December 14, 2001. The ECMA standard's gestation period was 1-1/8 years.

In contrast, Arbortext, Boeing, Corel, CSW Informatics, Drake Certivo, National Archive of Australia, New York State Office of the Attorney General, Society of Biblical Literature, Sony, Stellent and Sun Microsystems founded the OASIS Open Office XML Format TC in December 2002. The first TC draft was approved in March 2003, the second in December 2004, and the third in March 2005. OpenDocument was approved as an OASIS Standard in May 2005, almost 2-1/2 years after formation of the TC and more than twice as long as the ECMA process.

Will Two Similar XML Document Standards Emerge?

The real issue—as I see it—is: How will ISO/IEC-JTC1 react when the ECMA working group submits in 2006 an almost-identical (or at least very similar) set of XML document standards as OASIS's 2005 submittal of ODF? Will JTC1 require the competing ECMA and OASIS "standards" to be rationalized into a single ISO/IEC standard?

Sun Microsystems' Tim Bray questions the need for two XML document standards in his recent "Thought Experiments" post (updated November 27, 2005.) His distaste for the Office Open XML format undoubtedly derives from his employer's position as the promulgator of OpenOffice and ODF. This conclusion is supported by Bray's position as co-chair of the IETF Atom Working Group. As Microsoft's Dare Obasanjo points out in his "Tim Bray's Hypocrisy and Competing XML Formats" post:

I find it extremely ironic that one of the driving forces behind creating a redundant and duplicative XML format for website syndication would be one of the first to claim that we only need one XML format to solve any problem. For those who aren't in the know, Tim Bray is one of the chairs of the Atom Working Group in the IETF whose primary goal is to create a competing format to RSS 2.0 which does basically the same thing. In fact Tim Bray has written a decent number of posts attempting to explain why we need multiple XML formats for syndicating blog posts, news and enclosures on the Web.

Update December 9, 2005: ZDNet's David Berlind analyzes the ECMA standards path and the issue of pontentially duplicate (or almost-duplicate) ISO stanards in his extended "Microsoft standard proposal turns spotlight to Ecma's process" post. Open Standards vs. Open Source

Open Source advocates insist that standards bodies adapt their Intellectual Property Rights (IPR) policies to accommodate the GNU General Public License (GPL). David Berlind, one of ZDNet's open-source bloggers, raises the issue of what qualifies to him as an "open standard" in his "Public discourse under way over definition of 'open'", "Apache falls victim to OASIS patent shelter," and "Open source: Are Microsoft and other holdouts about to crack?" posts. Joe Wilcox weighs in again with "Assessing the Fallout," an analysis that emphasizes openness and Microsoft's moves to displace Adobe products with equivalents or act/look-alikes engineered in Redmond. Dennis Hamilton sheds additional light on the issue, including copyright ownership, in his November 30, 2005 "Open Standards are not Open Source" post.

Note: I'll believe that IBM is a legitimate "open source" and "open standards" proponent when they open-source their current version of DB2, and other commercial applications and operating systems under royalty-free, fully sublicensable terms.

The degree of the openness of the "open standards" process is difficult to resolve. As an example, the OASIS ODF Technical Committee (TC) has 14 members. Three members are Sun employees, three work for IBM, and one each are employed by Adobe Systems, Intel, and OASIS. Three are listed as individuals: Patrick Durusau is Director of Research and Development at the Society of Biblical Literature; Gary Edwards is principal of Open Business Stack Systems; and David Faure is the maintainer of the KWord and KOffice libraries.

As an example of ECMA TC membership, the TC39 - TG2 - C# technical group has the following 14 nominated representatives: BEA Systems, Borland, COSC of the University of Canterbury, HP, Hitachi, IBM, Indiana University, Intel, IT University of Copenhagen, Macromedia, Mainsoft, Microsoft, Novell, and Plum Hall.

Presumably, the 11 backing organizations listed in the press release will join the future ECMA TC/TG. However, only the 18 Ordinary Members of ECMA have a right to vote. Of the backing organizations, only Microsoft, Intel, and Toshiba are Ordinary Members. How membership status affects an individual organization's right to insist on modifications to a proposed standard isn't clear from ECMA's Web site.

Update November 29, 2005: David Berlind's semi-autobiographical peaen to openness in standards, "It's not about OpenDocument vs MS. It's about open standards," didn't identify the employment of members of the OASIS ODF TC nor mention the control that Sun and IBM exerts over ODF through the TC.

Microsoft's Covenent Not To Sue

Traditionally, Microsoft has favored RAND-mode patent licensing but has granted RF licenses for some IP, such as the Office 2003 XML schemas. The terms of these licensing modes require application developers and users to sign a written contract. Brian Jones says, regarding changes to Microsoft's licensing approach:

[I]n order to clear up any other uncertainties related to how and where you can use our formats, we are moving away from our royalty free license, and instead we are going to provide a very simple and general statement that we make an irrevocable commitment not to sue. I'm not a lawyer, but from what I can see, this "covenant not to sue" looks like it should clear the way for GPL development which was a concern for some folks.

Robert Scoble asked Jean Paoli, "Do I need to sign, or agree to, any licensing agreements to use the formats?" Paoli responded:

No, for the specifications and in our work with Ecma International, we are offering a broad “covenant not to sue” to anyone who uses our formats. This is a new approach that continues our open and royalty-free approach. We think it will be broadly appealing to developers, including most open source developers. ([B]y the way you did not have to sign anything even before this announcement.)

Whether a covenant not to sue does "clear up any other uncertainties," which appear to be the former requirements to apply for and receive a royalty-free license, remains to be seen. Brian added a November 22, 2005 post that explains the covenant not to sue in greater detail. The post includes a link to the "Microsoft Covenant Regarding Office 2003 XML Reference Schemas," which Brian advises will apply to the Office 12 schemas when they're released. Attorney Andy Updegrove's "Microsoft's Format Covenant Fails Comparison Test with Sun's" post purports to compare Microsoft's covenant for Office XML documents with Sun's "Sun OpenDocument Patent Statement" for the ODF published by OASIS. As Microsoft did for the Office 2003 XML reference schemas, (Sun had earlier (in 2002) offered an reciprocal-RF-format IP license for the OpenOffice.org XML File Format Specification.) eWeek's Steven J. Vaughan-Nichols expands on Updegrove's analysis to castigate Microsoft (as usual) in his November 23, 2005 "Legal Analyst Sees Defects in Microsoft Open XML Initiative" piece for the magazine's Linux & Open Source department.

David Berlind's 11/28/2005 ZDNet blog post, "Top open source lawyer blesses new terms on Microsoft's XML file format," says that Larry Rosen, the Open Source Initiative's (OSI) first secretary and general secretary has endorsed Microsoft's "covenant not to sue" approach. The blog item contains the full text of Rosen's statement. ZDNet's Martin Lamonica reports in his "Mass. warms to Microsoft Office standard" article:, "The state is 'optimistic' that Microsoft's Office Open XML document formats will meet the standard for an 'open format' set by Massachusetts, according to a statement issued Wednesday by Gov. Mitt Romney." CMP TechWeb ran a similar story by W. David Gardner, "Mass. Flips, Sides With Microsoft," on the same date.

Judging from most of the 50+ comments to the Scobelizer post and the 450 or so on SlashDot, few—if any—free-lance Open Source proponents would accept any free license or assertion of no license required from Microsoft for the Office Open XML format, no matter who endorses them. The issue for these hard-core folks won't be settled until Microsoft open-sources Office and Windows. eWeek's David Coursey takes up this issue in his "Bill Gates Is Not the Next Linus Torvalds" op-ed article.

More from the trade press on 11/22/2005: Ingrid Marson, ZDNet UK: "Microsoft's standardization move divides experts"; David Berlind, ZDNet's Between the Lines blogger: "Microsoft ECMA/ISO move could give Office formats new lease on life"; John Carroll's ZDNet blog (Carroll is a programmer and Microsoft employee): "Office XML as ECMA and ISO Standard?"; Paul Murphy's ZDNet blog: "OASIS? XML? Permanence?"; Steven Vaughan-Nichols and Mary Jane Foley, eWeek: "From the Outside Looking In: Analysts, Developers on Microsoft, Open Standards"; Steven Vaughan-Nichols, eWeek: "Liar, Liar, Pants on Fire: Microsoft and Open Standards"; David Coursey, eWeek: "How Open Can Microsoft's Formats Be?"; Peter Galli, eWeek: "Microsoft Opens Office File Formats"; Elizabeth Montalbano and Simon Taylor, Computerworld: "Update: Microsoft to open Office document format". Some ZDNet pieces indicated that the reporter(s) hadn't checked all resources available on 11/21/2005. Entries from InfoWorld and InformationWeek were (surprisingly) missing in action as of 3:00 p.m. PST. --rj Disclaimer: I am not an attorney and this post does not purport to offer legal advice.