[odf-discuss] Partial implementations

[marbux]

On 11/4/06, Alex Hudson <alex at stratagia.co.uk> wrote:
>
> marbux wrote:
> > I see that Microsoft finally a few days ago did finally adopt a
> > different covenant for MOOX, the OSP. (Odd they didn't get any press
> > on that one.) I have been saying all along that the Office 2003 CNS
> > would not be the document used for MOOX and I was right.
>
> Both the Office 2003 CNS *and* the OSP apply. It's a choice, but you can
> accept either.
>
> > They most certainly do not say the same thing. The CNS is
> unintelligible.
>
> I think that's a bit unfair. You may not like the terms or the use of
> the words "necessary" and "conform", but I have no trouble understanding
> what it means - they're problems not recognised by other analysts, eg.
>
> http://www.consortiuminfo.org/standardsblog/article.php?story=20060126111840467
> .
>
> I don't see that the fact Andy chose not to go over the ground I had
already ploughed as highly significant. I am quite confident that he would
agree the language is problematic. And if you think you understand what the
covenant means, may I suggest that you have misunderstood the sentence that
reads, "No other rights except those expressly stated in this covenant shall
be deemed granted, waived or received by implication, or estoppel, or
otherwise."

Microsoft "covenants that it will not seek to enforce any of its patent
claims *necessary to conform* to the technical specifications." The problem
with the clause is that no patent *claims" are necessary to conform to a
specification. Software is written in code, not in patent claims. And that
leaves the reader in the position where the actual meaning must be
*implied." But the sentence quoted above expressly forbids implying any
rights not *expressly* stated. If a right is not "expressly" granted, it
does not exist. And such limitations are interpreted quite literally by the
courts when it comes to contract law.

"Expressly" is a synonym of "explicitly." <
http://wordnet.princeton.edu/perl/webwn?s=expressly>. And "explicit" means
"precisely and clearly expressed or readily observable; leaving *nothing* to
implication." <http://wordnet.princeton.edu/perl/webwn?s=explicit>.

>From a legal standpoint, the CNS is garbage in/garbage out. The quoted
sentence forbids any rewrite. The covenant lives or dies on its express
wording, and the clause quoted above is nonsensical. You are interpreting it
to say something it does not actually say, and that requires unadulterated
"implication." See <http://wordnet.princeton.edu/perl/webwn?s=implication>.

Law is often squishy, but in some areas it is as literal and unforgiving as
software algorithms. This is one of them. Now there are arguments that could
be made based on Microsoft's concurrent public statements that went far
beyond what the covenant actually says, but such arguments would necessarily
involve principles of waiver and/or estoppel. But the quoted sentence
forbids reliance on waiver or estoppel.

The bottom line is that a court might rule either way and since it is purely
a matter of interpreting a written contract, i.e., a question of law, a
court of appeals might also rule either way. (Lower courts are given no
deference on their legal -- as opposed to factual -- rulings.) That
practically guarantees that an appeal would be taken by the side that lost
in the lower court. There is no sound basis for predicting which way either
court would rule.

The question is whether anyone would want to build a business on such an
unstable foundation. The fact that Microsoft portrayed the replacement
license as an alternative does not repair the covenant not to sue. The CNS
is not worth the paper it is written on just from its ambiguity. If you add
the 3-step process of whittling developers' rights discussed at some length
in my article, I would defy anyone to definitively know what the CNS allows
and what it forbids. Certainly the lawyer who whipped it out was not
concerned with his work product's clarity.

Best regards,

Marbux
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