When Elvis sang “Don’t be Cruel,” he certainly wasn’t referring to contracts. But contracts, like love affairs and other personal relationships, can often make the parties involved behave harshly to each other. When the rivalry involves money, as the old saying goes, business is business.
I have seen many harsh contracts, but Microsoft’s Royalty-Free Protocol License Agreement (RFPLA) is not really one of them. Although some commentators call it harsh, when you look it over with a sharp (and objective) legal eye, the RFPLA seems fairly reasonable.
Basic Contract Law
Contracts between two parties can be stripped to their essence. One party puts something on the table and in exchange, the other party also puts something on the table. We call this the party’s “consideration” in legalese.
A deal happens when each party wants what the other side has to give more than what they are giving up. The consideration is either giving up something or promising not to do something. It is instructive to apply these concepts to the Protocol License Agreement.
The RFPLA
Licensees to the RFPLA receive Microsoft’s promise not to assert copyright claims or patent claims against products that use one or more of 130 protocols when those protocols are used to interface with Windows clients.
Nearly all of the 130 protocols were developed by someone else. Some were even implemented and available more than 20 years ago, so any patents covering them would have likely expired by now.
The RFPLA limits the license to implementations that are necessary to communicate with a native Windows client, not including other software that might be added onto the client after Windows installation. The license does not cover enhancements or updates to the protocols, such as extending or changing packet types of content types beyond the listed protocols.
Typical Provisions
The license also has typical agreement provisions, such as which law applies and what happens when there is a breach and how the agreement works. Licensees submit to jurisdiction in Washington State if there is a dispute. If you think that is an outrageous advantage to Redmond, Washington-based Microsoft, take a closer look at some other agreements you are subject to, such as your cell phone carrier agreement. Compare what those agreements require if there is a dispute and Microsoft’s terms seem relatively reasonable.
If there is a breach of the agreement by a licensee, Microsoft can cancel the agreement, leaving the licensee with no license, but only if Microsoft first gives notice of the breach and an opportunity for the licensee to come into compliance.
That is fairly easy, since there are only a few actions required to comply with the terms of the agreement. One exception is that failure to include their required notice in your source code is grounds for immediate termination of the agreement.
Viral Marketing, of Sorts
The notice requirement is interesting. Microsoft requires that to enjoy the benefits of the license, you must provide notice in any source code distributed that the source code may incorporate intellectual property owned by Microsoft.
If you don’t do that, they can terminate the license immediately. The notice also requires mention of the fact that the license does not pass down with the source code and each recipient needs to contact Microsoft and mention the Microsoft e-mail address for such contact. This way, everyone is sure to find out about the RFPLA.
The RFPLA is not without criticism. Being somewhat of a stickler for using precise legal language, it should really be called a “royalty-free protocol license agreement” because its current title suggests that it is a royalty-bearing license for “free protocols.”
Labelled as Licensee
It is also fair to be concerned about having your name associated with an agreement if Microsoft uses this list of licensees to badger others to sign up, or if this agreement is used to disadvantage open-source software propagation.
Part of the consideration from licensees is that they allow Microsoft to list them as licensees. If only a few companies sign up, they might be ridiculed as members of Microsoft’s “Wimp List.”
But since there is not really any admission that Microsoft has rights in any of the protocols and there is no cost, other companies — especially large ones that are not worried about being called wimps — will not hesitate to sign up. Then everyone else can join in without being concerned about getting slapped with a derisive label.
Shades of Grey
Microsoft does not list patents or copyrights by numbers so one cannot check if they have rights covering any particular protocol. If the license agreement required significant payments or had other large consideration requirements, a diligent licensee would check first that Microsoft in fact had some rights worth licensing.
But like shades of grey, if a royalty-free license has few commitments, it may not be that critical to bother checking to see if they have any rights.
Granted, there are clauses that exclude from the license the use of GPL-ed software, restrictions on modifications of the protocols and compliance with “Technical Documentation,” but those clauses are in the context of the license granted. Nothing in the agreement is a promise by the licensee not to do these things, just an indication that the license does not cover those things.
Careful Consideration
Curiously, Microsoft’s attempt to bias against the use of GPL-ed software implementing protocols for interfacing with Windows clients might backfire. If those implementing protocol software have to choose between a free software version of a protocol driver and an RFPLA version, they might implement two versions.
After a while, they might get tired of implementing multiple versions (as happened many times in the desktop computer industry) and drop one version. Microsoft has to realize that the RFPLA with Microsoft’s viral marketing notice might be the one that is dropped.
Unlike Elvis, it is not necessary to burst into song to determine if Microsoft’s RFPLA is harsh, callous, insensitive, ruthless, or even cruel. A careful examination of the contract agreement will help the user make an objective decision based on what sort of consideration they expect in return for what they are comfortable giving up. After all, business is business.
Phil Albert, a LinuxInsider columnist, is a patent attorney and partner with the San Francisco office of the intellectual property law firm Townsend and Townsend and Crew LLP.
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You note at the end that the GPL writers are still free to implement their own version of the protocol. This has always been the case, and always should be, though I fear that the presence of these licenses is to spread fear that such an implementation is illegal. Perhaps with enough licensees, Microsoft could attempt to convince a judge that the license does indeed have value. "Look at all of these people who think I do really own this idea and are willing to pay for it."
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The benefit for Mictrosoft is great. Companies don’t like to compete – it’s expensive and takes effort. If you can get laywers or "FUD" to take care of competition for you, then you can just relax and rake in the profits. On the other hand, for the consumer the existance of Samba and Open Office and now Firefox is forcing Microsoft to improve their products and try to compete (begrudgingly it seems) on merit.
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Past cases have supported the idea that protocols in themselves have no protection. Samba exists to serve Windows Shares. Open Office can read Word Format. There exist open source clients for proprietry instant message systems, and no owner of the proprietry system has tried to turn around and say "But we own the protocol – its ours! you’re not licensed to implement it!"
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Even a case of a peripheral maker’s attempt to use the DMCA to prevent the peripheral being used with "anauthorised" software failed. Our governements have long supported the market for non-branded printer consumables, even where the disposable print head attached to the unbranded ink cartridge uses a proprietry protocol to talk to the printer.
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The question then becomes – what right to Microsoft have to even sell these licenses? It is noted that they don’t mention what patents they have, yet even the patenting of protocols is controversial and not implemented worldwide. Do Microsoft really own what they are selling?
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It would be like me claiming that the view of my house is my intellectual property, and selling licenses to anyone who comes within sight of it. I’d have to charge enyone who drove down our street. In this world of Intellectual Property land grabs, that is something that I can just imagine a company trying on. The problem is, that few people would question them.
The license is more Microsoft FUD, plain and simple. They want people to get confused and assume that somehow MS has rights to protocols, even when they didn’t invent them. Why else create a license that has the sort of rediculous requirements this has? I mean, what the heck purpose would there be in attaching the Microsoft name, in any way shape or form, to a program that impliments HTTP, just so that it conforms to this license when talking to a Microsoft based web server, for example? None. They have no legal right to the protocol in the first place, so the existance of such a notice only engenders potential confusion over who, if anyone, even owns it. This in turn makes it easier for them to glue on some ultimately unnecessary, but proprietary junk on the protocol (also conveniently covered as outside the scope of the license), then sue people for trying to design something that is interoperable, but doesn’t use the open standard. Apparently they still haven’t figured out that such nonsense is illegal, you can’t prevent companies from producing interoperable software and people despise proprietary protocols when developing web applications. Everything they have done since Linux started to gain market share has been either FUD or some idiot attempt to do an end run around the legal issues. This is imho, just another tactic in there, "the GPL isn’t actually legal and neither is open source", battle front. If you can’t convince them with non-existant facts, baffle them with pure high grade bullshit.