Sender ID

By Steven Vaughan-Nichols  |  Posted 2004-11-05 Print this article Print

Lawrence Rosen, a partner in the law firm Rosenlaw & Einschlag and author of "Open Source Licensing: Software Freedom and Intellectual Property Law," said he thinks Blunk "raises very interesting and important questions."

"As much as I can tell, this is the same license that the open-source community found unacceptable in the Sender ID matter," Rosen said. "Microsoft now seems to be imposing that agreement on many other potential IETF standards.
"This is probably Microsofts strategy, to impose licensing friction in the open-source distribution process," he said. "IETFs failure to respond appropriately to the Sender ID proposal has left the door wide open for this mischief."

Click here to read about how the IETF shut down the MARID (MTA Authorization Records in DNS) working group because of Sender ID concerns. Glenn Peterson, an IP attorney and shareholder with Sacramento-based law firm McDonough Holland & Allen, agreed with Blunk "It is not clear to what degree, if any, that Microsoft has enforceable intellectual property rights in the 130 protocols identified in the so-called royalty-free license agreement."

"Thus, by signing the agreement as it presently stands, one might be agreeing to certain things gratuitously, meaning simply that the licensee agrees to give Microsoft continuing control over how the protocols are used," Peterson said. "Among other things, the agreement gives Microsoft ongoing control over enhancements and updates, including the right to charge a license for them in the future."

"The Technical Documentation compliance requirement ensures that Microsoft maintains control over interoperations and improvements to the protocols," he said, adding that this is of even more concern. "Basically, it prohibits researchers from making enhancements designed to improve interoperative performance."

Moving along, Peterson said, "The agreement also allows Microsoft to terminate the licensee on 30 days notice, and subjects the licensee to the jurisdiction of Washington state courts. It further provides that Microsoft recover legal fees incurred in any dispute over the agreement."

What this all adds up to is that the "lack of specificity of rights holdings combined with the restrictive requirements of the agreement are both cause for concern and require further discussion," Peterson said. "Without refinement and clarification of the rights actually conveyed in the agreement, licensees may be shackling themselves with significant contractual burdens that would not apply in the public domain."

"To me, this looks a lot like Tom Sawyers unpainted fence. Thought to be a grand opportunity at first, Huck Finn soon realized that he was just painting someone elses fence for free," Peterson said.

Microsoft, however, has said it believes the issue is really just a misunderstanding.

"Microsoft is aware of the letter to the IAB and is working on a response to the concerns raised by the letter author and on providing clarity about our participation in standards-setting activities," said Mark Martin, a Microsoft spokesperson. "In the end, we believe this is simply a misunderstanding which we are working hard to clarify."

Check out eWEEK.coms for Microsoft and Windows news, views and analysis.

Steven J. Vaughan-Nichols is editor at large for Ziff Davis Enterprise. Prior to becoming a technology journalist, Vaughan-Nichols worked at NASA and the Department of Defense on numerous major technological projects. Since then, he's focused on covering the technology and business issues that make a real difference to the people in the industry.

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