Microsoft negotiating email Sender ID licensing with OSI

NewsForge recently learned of some behind the scene negotiations between Microsoft and Larry Rosen of the Open Source Initiative (OSI) regarding its controversial licensing of Sender ID. I had the chance to speak briefly this morning with Rosen about those negotiations. He quickly brushed aside a couple of my misconceptions about the issues, and about prior art, then further enlightened me with his first-hand take on these ongoing-negotiations.

In an earlier story, I wrote about the questions being raised over both the restrictions in the Sender ID license and the validity of the patent claim Microsoft is making. I prefaced the interview with those items, and Rosen began by correcting me on both points.

Rosen: There are two points that you mention, though, that I want to talk about specifically. First of all, it would be incorrect to assume that there is just one problem with the Microsoft license. There are a number of incompatibilities, including the one you mentioned. And I think they all have to be addressed.

And the second point: I don’t have any basis for making the statement that the patent itself is valid or invalid. First, no one has seen the patent, because it is not actually an issued patent. It is merely a patent application. And so the paperwork that has been filed is not available to us.

Barr: Is this the patent for the PRA?

Rosen: For Sender Id. Are you talking about something different?

Barr: I believe we are talking about the same thing. It’s the purported responsible address rather than using the TCP/IP Internet address of the envelope, they are using the addresses from the email headers.

Rosen: Right, and I don’t know, I have not seen the claims of that patent application. It has not yet ripened into a patent. To say there is prior art for it is premature.

Furthermore, there is a kind of common — I don’t mean that word in a derogatory sense — but a typical impression of what prior art is about in the world of patent law. It’s a little misunderstood, and so you have to look closely at the claims and the specification of the patent, and you have to look closely at the prior art, to determine whether something is in prior art or not. Merely to say, “Gosh, that sounds familiar, I could have done that,” or “I did that,” or “Someone did that, something similar to that,” especially in absence of an actual patent, is real premature.

Barr: Does the OSI have a position on this controversy? I notice that the Apache Software Foundation, and the Debian project, have both come out against this. Does the OSI have a position?

Rosen: The OSI has not expressed itself openly about it. I am not one to prejudge what the board of directors will choose to do.

Barr: How do you see Microsoft playing their hand on this? Do you see them as sincerely interested in reaching a compromise, or do you see them as hoping to drive a wedge between different elements of open source and free software worlds?

Rosen: I know the woman that I am working with at Microsoft, and I trust her to be as candid with me as her clients will let her be. And I trust her to negotiate with me honestly, and I have no reason to believe that she is not.

Barr: And so there are negotiations underway?

Rosen: As of last week. I haven’t heard from them this week, but I assume that they will contact me this week. Now look, I don’t know how much Microsoft is prepared to move. There are important issues at stake: they understand it, and we understand it. I think that if they listen to what we’re saying, that they can end up with a patent license that is good for them and good for us.

End of interview

It goes without saying that such an outcome would not just be good for the war on spam, but good for open source/free software in all its future points of contact with the world of proprietary software. We should all wish Larry Rosen and the others working behind the scenes the best in these critical negotiations.