The Microsoft Open Specification Promise (or OSP), is a promise by Microsoft, published in September 2006, to not assert its patents, in certain conditions, against implementations of a certain list of specifications.
Contents
- Does the OSP give any protection to free software open source projects
- Licensed technologies
- Web
- Virtualization Specifications
- Security
- XML file formats
- Binary file formats
- Windows compound formats
- Graphics formats
- Microsoft computer languages
- Robotics
- Synchronization
- Windows Rally Technologies
- Published protocols
- References
The OSP is not a licence, but rather a Covenant Not to Sue. It promises protection but doesn't grant any rights.
The OSP is limited to implementations to the extent that they conform to those specifications. This allows for conformance to be partial. So if an implementation follows the specification for some aspects, and deviates in other aspects, then the Convent Not to Sue applies only to the implementation's aspects which follow the specification.
Does the OSP give any protection to free software / open source projects?
The protections granted by the OSP are independent to the licence of implementations. There is disagreement as to whether the conditions of the OSP can be fulfilled by free software / open source projects, and whether they thus gain any protection from the OSP.
An article in Cover Pages quotes Lawrence Rosen, an attorney and lecturer at Stanford Law School, as saying,
"I'm pleased that this OSP is compatible with free and open source licenses."
GNU/Linux vendor Red Hat's stance, as communicated by lawyer Mark Webbink in 2006, is:
"Red Hat believes that the text of the OSP gives sufficient flexibility to implement the listed specifications in software licensed under free and open source licenses. We commend Microsoft’s efforts to reach out to representatives from the open source community and solicit their feedback on this text, and Microsoft's willingness to make modifications in response to our comments."
Standards lawyer Andy Updegrove said in 2006 the Open Specification Promise was
"what I consider to be a highly desirable tool for facilitating the implementation of open standards, in particular where those standards are of interest to the open source community."
However, the Software Freedom Law Center, a law firm for free software and open source software, has warned of problems with the OSP for use in free software / open source software projects. In a published analysis of the promise it states that
"...it permits implementation under free software licenses so long as the resulting code isn't used freely."
Their analysis warned of a possible inconsistency with GPL. This applies specifically to the patent promise scope being limited to conforming implementations of covered specifications only.
Effectively when an implementer owns a patent and builds that patent technology in GPL3 licensed code, the implementer grants those first party patent rights downline to all re-users of that code. When the code is reused, the OSP only applies as long as the reuse of that code is limited to implementing the covered specifications.
Other patent promises with similar limitations include IBM's Interoperability Specifications Pledge (ISP) and Sun Microsystems' OpenDocument Patent Statement. This means, for example, that use of the required Sun patented StarOffice-related technology for OpenDocument should be protected by the Sun Covenant, but reuse of the code with the patented technology for non-OpenDocument implementations is no longer protected by the related Sun covenant.
For this reason the SFLC has stated:
"The OSP cannot be relied upon by GPL developers for their implementations not because its provisions conflict with GPL, but because it does not provide the freedom that the GPL requires."
The SFLC specifically point out:
The Microsoft OSP itself mentions the GPL in two of its FAQs. In one it says,
"we can’t give anyone a legal opinion about how our language relates to the GPL or other OSS licenses".
In another, it specifically only mentions the "developers, distributors, and users of Covered Implementations", so excluding downstream developers, distributors, and users of code later derived from these "Covered Implementations" and it specifically does not mention which version of the GPL is addressed, leading some commentators to conclude that the current GPLv3 may be excluded.
Q: I am a developer/distributor/user of software that is licensed under the GPL, does the Open Specification Promise apply to me?
A: Absolutely, yes. The OSP applies to developers, distributors, and users of Covered Implementations without regard to the development model that created such implementations, or the type of copyright licenses under which they are distributed, or the business model of distributors/implementers. The OSP provides the assurance that Microsoft will not assert its Necessary Claims against anyone who make, use, sell, offer for sale, import, or distribute any Covered Implementation under any type of development or distribution model, including the GPL.
Licensed technologies
Technologies on which the Open Specification Promise applies are:
Web
Virtualization Specifications
Security
XML file formats
Binary file formats
Structure specifications
Windows compound formats
Graphics formats
Microsoft computer languages
Robotics
Synchronization
Windows Rally Technologies
Published protocols
In Microsoft's list of covered protocols there are many third-party protocols which Microsoft did not create but for which they imply they have patents which are necessary for implementation: