Can Microsoft Sue Open Office Users?

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

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 U.S. Securities and Exchange Commission filings this week.

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

Open Office 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.

New Users Vulnerable

While the agreement effectively safeguards a large group of Open Office 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 LLP in New York City, 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 Open Office 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 Open Office is "as strong as ever" and adding that Microsoft has always had the right to sue Open Office 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."

Open Office developers are somewhat confused by the "legalese" language in the clause, says Louis Suarez-Potts, a senior community development manager with CollabNet, who works on the Open Office 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.

Cause for Concern?

But one open source advocate is 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 Web site, 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 writes in an e-mail interview.

The contract clause may have been necessary because of Sun's intimate relationship with the Open Office project, analysts say. Sun engineers are the major contributors to Open Office and the Santa Clara, California, 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 Open Office users are indemnified by the Sun-Microsoft agreement, says Matt Rosoff, 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 organization," he says.

Ironically, the contract clause has come to light just as Microsoft is beginning to make overtures toward the Open Office development community. Microsoft's German subsidiary, Microsoft Germany GmbH, 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 criticized by Open Office developers for its refusal to participate in an OASIS-led (Organization for the Advancement of Structured Information Standards) effort to develop a standard file format for productivity applications.

Microsoft decided to participate in the conference to learn about Open Office and "take an active part in the dialogue and to discuss important topics related to open standards," says Sandra Schwan, a Microsoft spokesperson, via e-mail. "This conference is not about selling products," she says.

The Open Office Conference 2004 charges exhibitors $613 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.

Joris Evers of the IDG News Service contributed to this report.

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