Sun–Microsoft deal raises Open Office questions

Redmond reserves the right to sue open source effort, but Sun protects itself

Microsoft this week said that is looking for ways to work more closely with developers of the OpenOffice.org open source project, while at the same time apparently reserving the right to sue them, according to a legal agreement made public this week between Microsoft and OpenOffice.org's major sponsor, Sun.

The agreement in question was signed in April of this year as part of Sun and Microsoft's landmark multibillion dollar settlement. It was released as part of Sun's annual US Securities and Exchange Commission filings on Monday.

The April agreement says Microsoft can seek damages from OpenOffice.org users or distributors for any copy of OpenOffice.org installed after April 1, 2004. However, users of Sun's commercial distribution of OpenOffice.org called StarOffice are protected from legal liabilities under the agreement, says Russ Castronovo, a spokesman for Sun.

OpenOffice.org includes a word processor, spreadsheet and presentation software based on technology Sun acquired in its 1999 purchase of Germany's Star Division. Sun released the code under an open source license in 2000.

While the agreement effectively safeguards a large group of OpenOffice.org users from Microsoft, it leaves new users vulnerable to potential legal action, says Richard Donovan, head of the antitrust practice at Kelley Drye and Warren in New York, who has followed the agreement. "From now on, you're on notice that if you're still putting Open Office out there, Microsoft is reserving the right to go after you," he says.

The fact that Sun has granted Microsoft the right to seek damages for OpenOffice.org after the April 1 date may indicate a weakening in Sun's support for the open source project, Donovan says. Agreeing to the clause would "only make sense if Sun had decided as a corporate strategy that they did not intend to pursue Open Office very vigorously afterwards," he says.

Sun's Castronovo disagrees with Donovan's assessment, saying that Sun's support for OpenOffice.org was "as strong as ever" and adding that Microsoft has always had the right to sue OpenOffice.org users. "That existed before, so nothing changed in that respect, he says. "Open source software is typically provided without warranty and liability coverage. Open Office is no different."

OpenOffice.org developers were somewhat confused by the "legalese" language in the clause, says Louis Suárez-Potts, a senior community development manager with CollabNet who works on the project. But Sun's level of support for the project has not changed since the April announcement, he says. "I don't see this special chumminess [between Sun and Microsoft] as affecting our work," he says.

But one open source advocate was troubled by the clause.

"It's ominous, because it means that Microsoft is holding open their right to sue end users of Open Office for patent infringement. And Sun is protecting itself by exempting StarOffice from exposure," says Pamela Jones, editor of the Groklaw.net website, which covers legal issues relating to Linux and open source software.

"It raises questions about Sun's motives in agreeing to such a deal, but it really shines the spotlight on what Microsoft thought was important to exempt from the Sun-Microsoft patent truce," she wrote in an email interview.

The contract clause may have been necessary because of Sun's intimate relationship with the OpenOffice.org project, analysts say. Sun engineers are the major contributors to OpenOffice.org and the company retains the copyright to all software that is contributed to the project.

Because of this tight relationship, Microsoft may have felt it necessary to remove any ambiguity about whether or not OpenOffice.org users are indemnified by the Sun–Microsoft agreement, says Matt Rosoff, an analyst with Directions on Microsoft. "They wanted to make it clear that ... just because Sun and Microsoft have a cross-licensing agreement, that doesn't mean that Sun has the right to turn that indemnification over to an open source organisation," he says.

Ironically, the contract clause has come to light just as Microsoft is beginning to make overtures toward the OpenOffice.org development community. Microsoft's German subsidiary plans to exhibit at the Open Office Conference 2004 being held in Berlin next week.

Though Microsoft offers XML support with its Microsoft Office 2003 productivity software, the company has been criticised by OpenOffice.org developers for its refusal to participate in an effort led by OASIS (the Organisation for the Advancement of Structured Information Standards) to develop a standard file format for productivity applications.

Microsoft decided to participate in the conference to learn about OpenOffice.org and "take an active part in the dialogue and to discuss important topics related to open standards," said Sandra Schwan, a Microsoft spokeswoman, via email. "This conference is not about selling products," she wrote.

The Open Office Conference 2004 charges exhibitors €500 to participate in the conference. It attracted 300 attendees during its inaugural event last year.

Microsoft declined to comment on specifics of its April agreement with Sun.

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