Subject: Concerns regarding Microsoft's Royalty Free Protocol License Agreement

From: "Larry J. Blunk" <[email-masked]>
Date: Sat, 30 Oct 2004 03:32:12 -0400 (EDT)

Dear IAB members,

    I wish to express my concerns regarding Microsoft's Royalty Free
Protocol License Agreement dated Apr 19, 2004 and published on their
website at the following URL --
http://msdn.microsoft.com/library/en-us/randz/protocol/royalty_free_protocol_license_agreement.asp.
Additionally, a FAQ document is available at the following location --
http://msdn.microsoft.com/library/en-us/randz/protocol/published_protocols_and_royalty-free_license_faq.asp

   The Agreement specifies a total of 130 protocols which Microsoft
is offering for license "under any applicable intellectual property rights
that Microsoft may have...".  Many of the listed protocols are RFC
documents, including, but not limited to, the core TCP/IP v4 and TCP/IP v6
protocol specifications.  Microsoft does not specify how this list of
protocols was derived and to what extent they have investigated their
possible rights holdings over these protocols.  The list appears
to be a near, but not completely, exhaustive list of public protocols
implemented in Microsoft products.  For example, the SMTP protocol is
missing from the list.

   A review of IPR notices filed by Microsoft with the IETF reveals only
a small number of filings which would apply to the protocols listed
in the Agreement.  The vast majority of RFC's referenced in the Agreement
have no corresponding IPR notices filed with the IETF.

   The fact that a significant number of protocols date from the early 
1980's, a time during which Microsoft had little patent activity, suggests
that there is no reason to suspect that Microsoft has any patent rights
to these early protocols (such as the TCP/IP v4 core
protocols).  Further, in the unlikely event that applicable patents
may be discovered, they would have likely expired at this point.

   Microsoft also mentions possible copyrights in referenced Technical
Documentation.  However, it is my understanding that should Microsoft
copyrights be contained in the documentation, it is Microsoft's obligation
to the identify the copyrighted text and have it removed in order to
mitigate damages.  Additionally, I do not believe mere copyrights provide
the right to dictate the "use" of the documentation in the implementation
of protocols.  In my opinion, it also shows a lack of respect
for the authors' rights and the terms on which they submitted these
documents to the IETF.  Further, it unfairly implies the authors may have
illegaly incorporated Microsoft copyrighted material without giving the
authors a chance to refute such implications.

   It is my concern that by merely suggesting they may hold applicable
rights to these protocols, Microsoft is injecting a significant amount of
unwarranted uncertainty and doubt regarding non-Microsoft
implementations of these protocols.  It is quite likely that an individual
or organization would be intimidated into signing the license agreement
simply due to Microsoft's vast financial and legal resources.  Further,
because Microsoft provides no reference to any proof of applicable
rights holdings (such as patent numbers), it is impossible to
ascertain whether Microsoft indeed has legitimate rights holdings.

   Of additional concern is the onerous and restrictive conditions
attached to the license agreement.  In particular, the limitations
which restrict implementations to "Server Software or a component of
Server Software" and the requirement that implementations "are compliant
with the relevant Technical Documentation."

   The "Server Software" requirement and definition, including such
amorphous concepts as how software is "marketed", would likely exclude
many open source and embedded software
implementations.  It is difficult to imagine how such a requirement could
meet anyone's definition of "reasonable and non-discriminatory".  I
mention RAND terms as the document is located under a directory entitled
"randz" on Microsoft's website.

   The Technical Documentation compliance requirement would, in a number
of cases, cause implementations to interoperate poorly, or not at all, due
to flaws and errors in the RFC documents.  Further, it would prohibit
researchers from making enhancements and improvements to the protocols.

   In summary, I would like to request a statement from the IAB providing
commentary on this Agreement and seeking clarification from Microsoft.
I believe the lack of specificity of rights holdings (and corresponding
IPR notices), as well as the restrictive requirements of the
Agreement, are cause for significant concern.

ADDITIONAL NOTE:
    It appears this Agreement may have been referenced in United States v.
Microsoft "Joint Status Report on Microsoft's Compliance with the Final
Judgements" dated January 16, 2004.  The report can be found at
http://www.usdoj.gov/atr/cases/f202100/202129.htm
     In the report, reference is made to the fact that,
"Microsoft will soon be releasing a much shorter license
agreement, making approximately two dozens (sic) protocols available on
a royalty-free basis...".  If this is indeed true, one wonders how
two dozen protocols, perhaps where Microsoft may have had a
reasonable belief of rights holdings, became the much larger list
of 130 protocols present in the Agreement.

  Sincerely,
    Larry J. Blunk

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