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

From: "Valerie See \(LCA\)" <[email-masked]>
Date: Wed, 10 Nov 2004 16:17:06 -0800

Larry, I'd tried to reach you by phone earlier today, but 
realize you may not have had time to pick up your messages.
Let me try to briefly answer your questions:

> Valerie,
>   I believe this is the relevant section of the Consent Decree:
> 
> -----
> III.E. Starting nine months after the submission of this proposed
Final 
> Judgment to the Court, Microsoft shall make available for use by third

> parties, for the sole purpose of interoperating or communicating with
a 
> Windows Operating System Product, on reasonable and non-discriminatory

> terms (consistent with Section III.I), any Communications Protocol
that 
> is, on or after the date this Final Judgment is submitted to the
Court, 
> (i) implemented in a Windows Operating System Product installed on a 
> client computer, and (ii) used to interoperate, or communicate,
natively 
> (i.e., without the addition of software code to the client operating 
> system product) with a Microsoft server operating system product. 
> -----
> 
>    It's not at all clear to me that the phrase "make available for
use"
> means that Microsoft is required to license all protocols.  For those
> protocols which are open and free of any known IPR, I don't see any
> reason for Microsoft to provide a license as they would already be 
> considered "available for use".

Regulators overseeing the decree were very concerned that 
licensees know exactly where and how to access the client-server 
protocols implemented in Windows, whether Microsoft-proprietary 
and unpublished, or published by Microsoft or others.  Accordingly, 
the programs established by Microsoft were designed to enable 
licensees to easily find all consent decree protocols, both unpublished 
and published, and obtain rights under whatever intellectual property 
rights Microsoft has.  Obviously Microsoft cannot vest itself with 
ownership rights where it has none.  The programs developed 
were carefully reviewed with the regulators and found to address 
their concerns under the decree.  

>   Further, you indicated in our phone conversation yesterday that
> Microsoft was given the option to only license those protocols upon
> which it believed it had specific rights.  So it would seem that it
was
> Microsoft's decision to include the complete list of implemented
published
> protocols in their license.
 
Larry, I am sorry if I wasn't clear, but the consent decree doesn't 
contain such an "option"; it just talks about client-server protocols 
implemented by Microsoft in Windows.  So to make absolutely sure 
of meeting consent decree requirements, and also to address the 
concern raised by regulators regarding easy identification and 
access of those protocols, the programs were developed by Microsoft 
and discussed in depth with the regulators, as indicated above.

>    Note that the July 19, 2004 Status Report states the following:
> ------
> As reported at the April 21, 2004 Status Conference, at Plaintiffs' 
> request, Microsoft has made a number of improvements to the MCPP. 
> Microsoft greatly simplified the license terms and made available 
> approximately 20 protocols using a click-through royalty-free license
on 
> MSDN. These 20 protocols had previously been offered for license only
with 
> payment of a royalty.
> ------
> 
>    The figure of 20 procotols in this report is inconsistent with
> the 130 listed in the MSDN license which is dated April 19, 2004.
> Are these 20 protocols ones where Microsoft has identified
> potential IP rights?  If so, are there IPR disclosures filed
> with the IETF for those which are IETF Documents?

Here's how this came about: In response to a suggestion from 
the regulators overseeing the consent decree, Microsoft published on 
MSDN the documentation and a royalty-free implementation license 
for a subset of protocols, previously available only under 
the Microsoft Communications Protocol Program for non-published 
proprietary protocols (for more information on this program, see
http://go.microsoft.com/fwlink/?linkid=16924).  
As mentioned before, Microsoft was required by the consent decree 
to provide a license to every client-server protocol implemented 
in Windows - so to be sure it was complying with that requirement 
with regard to published protocols, Microsoft came up with a list 
of every published client-server protocol implemented in Windows, 
then made every protocol on that list also available under the 
MSDN license.  

> > Microsoft's IPR disclosures pertaining to standards submitted to 
> > standards bodies, pursuant to standards bodies' IPR policies, are 
> > the definitive Microsoft IPR statements with respect to those 
> > standards.  The MSDN license in no way constitutes an IPR
disclosure, 
> > nor does it modify the terms of existing IPR licenses, commitments, 
> > or statements provided by Microsoft.
> >
> 
>    I realize the MSDN license is not an IPR disclosure, in fact that
> was my point.  It would seem reasonable to expect that an
> IETF participant who offers a license for specific IETF Documents
> would be willing to provide an IPR disclosure to justify their
> license.  And, yes, I do realize that this is not explicitly
> required in RFC3668.

I think I may have answered this with my answers above, but
just to be sure, we are (and remain) committed to honoring all of 
our disclosure obligations with the IETF per RFC 3667 and RFC 3668.
But that said, as I mentioned above, the list of protocols and the
license offered to meet our consent decree obligations does not 
mean that Microsoft thinks it has a claim of ownership or IP rights
on all of these protocols. If any of our IETF participants become
aware of any disclosures we need to make to meet our IETF obligations,
we will make them.

> > As noted in our briefer note above, the MSDN license in no way 
> > constitutes an IPR disclosure, nor does it modify the terms of 
> > existing IPR licenses, commitments, or statements provided by 
> > Microsoft, and IETF IPR policy rules do not require Microsoft 
> > to complete a patent search for the IETF protocols listed. That 
> > being said, I am unaware of and agree that it would be very 
> > unlikely for Microsoft to hold any patents that would be 
> > necessary to implement any IETF protocol published prior to 
> > 1990 including TCP/IP v4.
> 
>     This statement is not particularly comforting.  What about
protocols
> published after 1990?   Does this mean one can be confident in
> relying on IPR disclosures filed by Microsoft with the IETF for 
> determing which procotols Microsoft believes it has rights over?
 
As I previously mentioned, Microsoft's IPR disclosures pertaining 
to standards submitted to standards bodies, pursuant to standards 
bodies' IPR policies, are the definitive Microsoft IPR statements 
with respect to those standards.

> Or are there protocols in the list which Microsoft believes it
> may have rights over but has yet to file an IPR disclosure?
 
Please see above ;-)
 
Thanks, 
-- Val See

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---

From: "Larry J. Blunk" <[email-masked]>
Date: Sat, 13 Nov 2004 02:54:23 -0500 (EST)

> and discussed in depth with the regulators, as indicated above.

   Valerie,
      I neglected to include Section III.I of the decree which is
referenced by Section III.E.  Namely,

"Microsoft shall offer to license to ISVs, IHVs, IAPs, ICPs, and OEMs any 
intellectual property rights owned or licensable by Microsoft that are 
required to exercise any of the options or alternatives expressly provided 
to them under this Final Judgment..."

     This would indicate there is no need to license protocols for
which Microsoft has failed to identify intellectual property rights
which are owned or licensable. 

> then made every protocol on that list also available under the 

   Again, Section III.I would appear to contradict your claim that
every implemented client-server protocol must be licensed.
Further, this does not address the issue of how 20 protocols became 130
and why the the July 19 status report still contains the figure of 20
protocols -- 3 months after the license agreement was published.

  Are the regulators aware of the expansion from 20 protcols to 130,
and that there is significant doubt as to the existence of any Microsoft
intellectual property in many of these protocols?  Are the regulators
also aware that the authors of the IETF documents and the ISOC (who holds
the copyright to a number of the documents) may have significant
objections to the terms of the license agreement?  It would appear
that the rights and interests of the authors and ISOC are being ignored
here as they have not been involved in these discussions.

> aware of any disclosures we need to make to meet our IETF obligations,

     I've reviewed RFC 3668 and am quite troubled by section 7 and
your wording in the above statement.  I take this to mean it is
quite possible that there are Microsoft employees who believe that
Microsoft has IPR covering IETF Documents, but have not filed relevant
IPR disclosures as those employees are not IETF participants.  I would
consider this to be pretty significant loophole in RFC 3668 as it means
we cannot take IETF IPR disclosures to be a definitive statement on the
possible rights holdings a company believes it may possess.

> > may have rights over but has yet to file an IPR disclosure?
   Ditto.  ;-)

  Regards,
     Larry Blunk

---

From: Harald Tveit Alvestrand <[email-masked]>
Date: Sat, 13 Nov 2004 15:55:17 -0500

Val,

just wanted to say thank you for responding publicly to the concerns raised 
here - I am somewhat appalled at the strange gyrations that the web of IPR, 
secrets, disclosures, consent decrees, licensing policies, "better safe 
than sorry" and so on are forcing upon us - but as long as we can share 
information about them, it becomes easier for everyone to understand what 
they have to do!

                       Harald