Supplementing David Berlind’s Extensive Research: Who Said What When

David Berlind has done a great job of doing some deep digging on what the players knew, and when they knew it, as Massachusetts made its OpenDocument decision. I interviewed all of the same players (and more)while the decision was being made, and fill in some of the gaps.

In September, I dedicated the entire issue of the Consortium Standards Bulletin to the decision of Massachusetts to adopt the OpenDocument format. The feature article was called Massachusetts and OpenDocument: A Brave New World?, and was based on detailed interviews with all of the main players in this ongoing saga.


David Berlind, over at ZDNet, in his Between the Lines blog with Dan Farber, has also been covering this story, and has just posted an exhaustive piece, based on extensive interviews with many of those involved. The piece is so long (c. 9,000 words) that I’ve only had time to give it a fast read, but there’s all kinds of good data in there that deserves the type of thorough read that I hope to give it tomorrow after a good night’s sleep.


True, some of the prose is a bit over the top (the piece begins, “Warning. If you read any further, you will find yourself at ground 0.0 of the biggest battle the computer industry has ever seen.” Ahem. Yes, indeed), but certainly this is in fact a real donnybrook that will be a good watch for many months yet to come.


Since we are already in that phase of history where those involved (losers especially) try to recreate what has just happened to reflect best on their own roles, it should be useful for me to provide detail on what the same people were saying *before* Massachusetts announced its final decision, so here we go.


In this entry, I’ll talk about two things: whether Microsoft was justified in feeling surprised by the Massachusetts decision, and second, what was really going on with the Sun announcement on ODF patents.


To set the stage: My interviews occurred on and between September 20 and 26 (with most occurring before the Massachusetts decision was announced the night of September 23) , and included Alan Yates and Nick Tsilas (MS), Michael Brauer(Sun), Peter Quinn (MA), Patrick Gannon, Mary McCrae and Carol Geyer (OASIS),and Jonathan Zuck and Morgan Reed of the Association for Competitive Technology (who opposed the Massachusetts proposal), among others.



I. Genuine Surprise, or Public Posture?



One question that I asked many of those that I talked to was whether Microsoft should be surprised if Massachusetts rejected the MS XML Reference Schema. I also asked everyone whether it would in fact be difficult or impossible for Microsoft to support OpenDocument without running into backward compatibility issues. With the exception of Alan Yates, everyone to whom I posed these questions said that Microsoft should not be surprised and that backward compatibility issues did not appear to be significant, based on everything they knew.


Peter Quinn (who I interviewed the day before the formal announcement) said that while he obviously couldn’t speak for Microsoft, he thought that Massachusetts had been sufficiently clear that the final decision should be no surprise, and that he had heard nothing during the final comment period that would justify a reversal in the Commonwealth’s position.


When I posed the same question to Alan Yates, his response was to the effect that he simply couldn’t believe that Massachusetts would make a decision that he believed to be so wrong headed.


So was this a public stance, or an honest representation?


I won’t pretend to say that I know the answer to that question, and David goes into this much more thoroughly than I had occasion to do in any event. I think that it is fair to say, however, that if Microsoft did sincerely believe that Massachusetts would not make the decision that it did, that it was blinding itself from taking in data that others were able to process more accurately. So it would appear that if Alan’s expressions of surprise were sincere, that Microsoft’s belief in the virtue of it’s position and technology prevented it from appreciating that Peter Quinn and Secretary Kriss might actually value other criteria sufficiently highly to lead them to a different balancing of values.



II. The Sun Licensing Announcement



While I learned confidentially during my interviews that Sun intended to clarify it’s position on any patents that it owned that might be infringed by an implementation of OpenDocument, I was unfortunately not at liberty to disclose that at the time my issue was released (the Sun announcement was made at approximately the same time my issue was finalized).


The question of whether there were “openness” problems with OpenDocument, however, had been raised in my interviews with Microsoft, and I had therefore inquired into it in many of my interviews. In David’s piece, he wonders whether there was a conspiracy on this point. In fact, I specifically asked Peter Quinn if he was aware of any problems with any Sun patents, and his reply was that he was unaware of any such issue. He also stated that no one had raised that as an objection or an issue.


Turning to the mechanics of the Sun announcement, I do need to clarify one point from David’s story: the Sun announcement that it “would not assert” it’s patents against OpenDocument adopters is not as radical as David thinks, when he states:

What made Sun’s idea of a non-assertion covenant unique is that it’s the sort of covenant that mentions no patents in particular, but that gives developers carte blanche access to any of the issuer’s patents they need to implement a particular specification without having to agree to or sign a license. Thus, it’s sort of a license-less license. The idea is so progressive that some believe it could be more than just a next step towards non-proliferation of open source licenses (in other words, if no licenses are required, there’s nothing to proliferate), but also the next step towards a different attitude when it comes to the software patent issues that currently plague the industry.

While the exact wording of the non-assertion pledge might have taken time to niggle out, the concept is neither new nor novel (I’ve used it myself in a number of standard setting organization intellectual property policies over the years). To give Sun credit, many patent attorneys believe that there are subtle weaknesses in a non-assertion covenant, when compared to a license, that prevent most of them from finding the alternative broadly acceptable. Sun has a more open attitude towards this approach than any other major corporation that I’ve negotiated with, and Jonathan Nimer, a Sun attorney that works with standard setting organizations, has advocated its use previously in a number of organizations with which he and I have been involved.



That’s it for now. I look forward to giving David’s post a much more thorough read tomorrow, and will try and fit in some more data and observations in the midst of a weekend trip to New York, time and opportunity providing.




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