Is Microsoft Ready to Assert IP Rights over the Internet?

[David Farber <dave () farber net>]

Begin forwarded message:

From: "Robert J. Berger" <rberger () ibd com>
Date: November 7, 2004 11:54:15 AM EST
To: Dewayne Hendricks <dewayne () warpspeed com>, Dave Farber 
<dave () farber net>
Subject: Is Microsoft Ready to Assert IP Rights over the Internet?

Is Microsoft Ready to Assert IP Rights over the Internet?
November 5, 2004

 By   Steven J. Vaughan-Nichols
http://www.eweek.com/article2/0,1759,1714680,00.asp

Has Microsoft been trying to retroactively claim IP
(intellectual property) rights over many of the Internet's basic
protocols? Larry J. Blunk, senior engineer for networking
research and development at Merit Network Inc., believes that
might be the case.

Blunk expressed these concerns about Microsoft's Royalty Free
Protocol License Agreement in a recent note to the IETF's
Intellectual Property Rights Working Group. Specifically, Blunk
suggested that Microsoft seemed to be claiming IP rights to many
vital Internet protocols. And by so doing, "Microsoft is
injecting a significant amount of unwarranted uncertainty and
doubt regarding non-Microsoft implementations of these
protocols," Blunk said.


Blunk pointed out that Microsoft is claiming some form of IP
rights over "a total of 130 protocols which Microsoft is
offering for license."

"Many of the listed protocols are [IETF] RFC [request for
comment] documents, including but not limited to the core TCP/IP
v4 and TCP/IP v6 protocol specifications," he said in his note.

Some of the RFC protocols that Microsoft asserts that it may
have IP rights over, such as the TCP/IP protocols and the DNS
(Domain Name System), form the very bedrock of the Internet's
network infrastructure.

"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," Blunk said. "The list
appears to be a near but not completely exhaustive list of
public protocols implemented in Microsoft products.


"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," he
said. "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."

Does Blunk, who is an engineer, have a legitimate point with his
IP legal concerns? Several lawyers said they think he does.


 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 Microsoft's strategy, to impose licensing
friction in the open-source distribution process," he
said. "IETF's 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.  http://www.eweek.com/article2/0,1759,1649726,00.asp

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 Sawyer's unpainted
fence. Thought to be a grand opportunity at first, Huck Finn
soon realized that he was just painting someone else's 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."

--
Robert J. Berger - Internet Bandwidth Development, LLC.
Voice: 408-882-4755 eFax: +1-408-490-2868
http://www.ibd.com


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