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.
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.
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.
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.