Shuttleworth: no negotiations with Microsoft in progress
Allegations of 'infringement of unspecified patents' carry no weight whatsoever. We dont think they have any legal merit, and they are no incentive for us to work with Microsoft on any of the wonderful things we could do together. A promise by Microsoft not to sue for infringement of unspecified patents has no value at all and is not worth paying for. It does not protect users from the real risk of a patent suit from a pure-IP-holder (Microsoft itself is regularly found to violate such patents and regularly settles such suits). People who pay protection money for that promise are likely living in a false sense of security."
Posted Jun 16, 2007 23:26 UTC (Sat)
by sjj (guest, #2020)
[Link]
He wrote:
Mark Shuttleworth, CEO of Canonical Ltd., the company behind Ubuntu, had never been as hostile towards Microsoft as some Linux leaders. I mean, this is the Linux leader who's recently said "I'd love to work with Microsoft..." (http://www.linux-watch.com/news/NS5160975921.html)
This was an expert quote-mining operation from an answer to question "So you wouldn't do a deal?", nicely documented by "Limulus":
No, absolutely not. But the time will come when the folks at Microsoft who have a clear vision for the company as a participant in this community, rather than as a hostile antagonist, will win. At that point Id love to work with Microsoft. Its not an evil empire. Its just a company that is efficiently grounded in the 1980s. New leadership and new thinking might make it a more effective partner for us. (http://limulus.wordpress.com/2007/06/15/mark-shuttleworth...)
Posted Jun 17, 2007 5:36 UTC (Sun)
by kripkenstein (guest, #43281)
[Link] (18 responses)
However, regarding "A promise by Microsoft not to sue for infringement of unspecified patents has no value at all": throughout the entire saga of Microsoft-Linux deals, I've wondered: are they *really* unspecified? Sure, publicly all Microsoft say is "200+ patents, etc." But perhaps in private their lawyers arrive at Linux (or Linux-using) company X's offices and hand them a list of the exact patents they claim are being infringed upon. They then say, "These are the patents. We will sue you on them if you don't deal with us."
In the actual deal, however, they don't specify the patents, perhaps because of legal (GPL) issues, or perhaps because that way it is all the more intimidating to other Linux companies, or some combination of the two. There is sort of an 'understanding' that the deal covers the patents previously shown, even though they are not mentioned by name in the legal documents.
So, in this theory, the result is that the patents *are* specified to the company making a deal with Microsoft. Now, speculate for a moment that some of the patents are 'valid' enough to be a problem, i.e., that they can be sued over in lengthy-enough lawsuits to drive a small Linux corporation out of business (in the US). So Linux corporations have to deal with Microsoft. And, in order to fulfill the GPL, they have no choice but to make 'covenants' that don't specify which patents are relevant. That is, perhaps Microsoft is perfectly happy to list the patents in their agreements, but the Linux side requires it, in order to be able to continue to ship a product.
Of course, all of this is speculation. But such a situation would lead to exactly what we are seeing, i.e., that many small corporate Linux distros are arriving at deals with Microsoft, deals which don't specify patents.
If this is true, then, faced with the same choice (of dealing with *specified* patents, albeit in closed doors), what will Shuttleworth do?
(Actually I think he'll continue to do exactly what he's been doing so far. Ubuntu's userbase is almost entirely Linux enthusiasts, many or most of which would abandon Ubuntu in an instant if it would make a Novell-like patent covenant with Microsoft. So Ubuntu has no choice, really, but to stand up to Microsoft. If they get sued, then perhaps they can't sell Ubuntu through Dell in the US anymore, at least temporarily, but they do still have the rest of the world, as well as added street cred.)
Posted Jun 17, 2007 5:47 UTC (Sun)
by JoeBuck (subscriber, #2330)
[Link] (8 responses)
Besides, if Microsoft told Novell about a specific patent number, and then Novell made a deal related to that patent, it seems to me that it's a GPL2 violation. The GPL2 workaround works only because of the vagueness of the threat. So I believe Novell, because their lawyers know that too.
Posted Jun 17, 2007 7:26 UTC (Sun)
by kripkenstein (guest, #43281)
[Link] (7 responses)
Posted Jun 17, 2007 9:53 UTC (Sun)
by MathFox (guest, #6104)
[Link]
For the GPLv2 it is irrelevant that you knew about patent numbers, if your recipients can not redistribute, you can not distribute... at least that's the concept behind section 7. The MicroSoft covenants give direct recipients more rights to the software than indirect recipients, which is clearly not the GPL's intention.
Posted Jun 17, 2007 12:52 UTC (Sun)
by zotz (guest, #26117)
[Link] (5 responses)
If those companies had that knowledge given to them and didn't immediately put the word out, what does that say about them?
all the best,
drew
Posted Jun 17, 2007 13:39 UTC (Sun)
by MathFox (guest, #6104)
[Link] (4 responses)
Posted Jun 17, 2007 14:25 UTC (Sun)
by oska (guest, #25556)
[Link] (3 responses)
Why would any company sign an NDA with another company about information that company is possibly going to use to sue?
If Microsoft came along to a company and said "We believe you are encroaching on our patents" the only sensible approach is to say "OK, show us which ones". This is exactly what many developers have been saying to Microsoft - "Put up or shut up."
The last thing you would do is sign an NDA to see this information.
Posted Jun 17, 2007 15:18 UTC (Sun)
by MathFox (guest, #6104)
[Link] (1 responses)
That would explain why negotiations with Red Hat or Ubuntu didn't really start.
Posted Jun 17, 2007 23:45 UTC (Sun)
by oska (guest, #25556)
[Link]
I still find it hard to believe, but if companies have entered into such NDA's with Microsoft then they are very foolish.
Posted Jun 18, 2007 20:47 UTC (Mon)
by gdt (subscriber, #6284)
[Link]
A NDA seems to be common practice. I've read where IBM required this of Sun during a patent shake-down. I also recall that the same article had Sun finding prior art for the four described patents and IBM's negotiators saying something like: "well, here's another four, we can continue this until we find four that stick". I observe that IBM's patent revenue personel from that era now work for Microsoft.
Posted Jun 17, 2007 9:26 UTC (Sun)
by MathFox (guest, #6104)
[Link] (2 responses)
Computer programs, especially programs in source code form facilitate discussion about algorithms; patents may refer to algorithms in their descriptions and claims and there is no good way of discussing whether a specific program infringes a patent when run on a computer or whether another program forms prior art without being able to discuss algorithms in the form of computer programs. Summary distribution of software hardly carries patent infringement risks, testing and running software may infringe in some countries.
How does showing a list of patent numbers (under confidentiality) count as disclosure? Especially if the people to see that list are incapable or unable to review those patents for prior art. A team of 4 specialized patent attorneys will need a few months for a review of a stack of two hundred of patents against prior art and distributed software. Disclosing a list of patent numbers (under confidentiality) to people without the means to research and refute each individual patent is like showing a list of lottery numbers; it is arguably not proper notice.
So even if MicroSoft did disclose a list of numbers, it wasn't disclosed in a way to allow reasonable evaluation of the patents' scope and validity. There may be GPL reasons for not mentioning patent numbers explicitly, but the mentioning of MicroSoft and confidential deal in one sentence raises a red flag with me. MicroSoft may be able to put Xandros and Linspire into bankruptcy with a patent lawsuit; but those companies aren't that healthy to start with. Red Hat may survive and win the lawsuit... Ubuntu can just drop US sales.
My private theory is that Shuttleworth got an offer, but didn't think it was good enough to start discussing it. I don't know what all his reasons were, but Microsoft refusing a proper inspection of the "goods" may be one. Another likely one was the opposition against Novell's deal. There are no business reasons for Ubuntu do be on the "MicroSoft Approved Linux Distributions" list, Ubuntu became a top distro based on its own strengths (see their Dell deal); closing a MS covenant seems something for distributions on their way out.
If you think that software patents are a legal mess, I fully agree with you. Blame that on the federal circuit that watered down the checks that the USPTO was allowed to do and bended patent laws to allow software patents. Also blame the patent attorneys and their customers for writing incomprehensible applications that are aimed for maximum monopoly at minimal disclosure and management at the USPTO for encouraging examiners to award patents instead of rejecting them. There have been some changes in procedures recently that allow for public reexamination requests, but that doesn't address all the issues.
Posted Jun 18, 2007 21:19 UTC (Mon)
by Wol (subscriber, #4433)
[Link] (1 responses)
If I were in charge of a distro like Mark, seeing as I live in a jurisdiction without software patents, I'd just respond "sue me - you'll end up paying to have the suit dismissed with prejudice".
Given that our courts have a tendency to award costs anyway, I can't expect a court not to award costs against somebody bringing a nuisance lawsuit with no basis in law...
Cheers, Posted Jun 17, 2007 16:58 UTC (Sun)
by mmarq (guest, #2332)
[Link] (4 responses)
Well, lets see if i can follow in the footsteps of your point:
Imagine i'm a Linux operator inside US and M$ cames to me with that,
' you'd better deal and pay ': they would say
- didn't IBM pledge a basket of very god patents for OSS 'protection' and intention of defending them ??... bet M$ violates almost all of those!
- didn't Novell pledge a basket of very god patents for OSS 'protection' and intention of defending them ??... bet M$ violates almost all of those!
- didn't RH pledge a basket(smaller in number) of very god patents for OSS 'protection' and intention of defending them ??... bet M$ violates almost all of those!
' not so fast M$ ': i would say
But then there is a void !... M$ would be suing me, not an entire community, they surely wont allow me enough time to change to GPLv3, and place the issue of patents under international OSS community bodies , with the immediate treat of a counter suing ... Their strategy is :
- Divide and conquer;
- Get invaluable FUD arguments;
- Get the most money possible out of it;
Cant 'i' and anybody 'else' in equal situation, get from Linux Foundation, FSF, EFF or any other body, a pledge to get to my aid if things get ruff ?
M$ cuts deals with Novell about patents, IBM also i believe, and are trying to get the rest, so that nobody will be suing them about the *MANY PATENTS THEY( M$ ) ARE VIOLATING *...
hey!, but aren't those *PLEDGE* Novell, IBM and others patents at the responsibility of a specific OSS body ??... Why cant the *community of OSS developers and operators* get the same neutrality of a cross deal that Novell and IBM have,... without having to sign anything further with M$ !!??
Surely something can be done. Where is the community ??
"" In the actual deal, however, they don't specify the patents, perhaps because of legal (GPL) issues, or perhaps because that way... "
They don't reveal them because their strategy is based on an individual base deals... cutting off the community in bits, not letting the agglutinating GPLv3 to take hold fast if ever... divide and conquer.
*LINUX CORPORATIONS DON'T HAVE TO DEAL WITH M$*... representative international OSS bodies should in name of ALL.... unless... unless those bigger Linux Corporations wont mind to see the smaller and vulnerable ones fried by M$.
The big boys are left alone, because they are pledge to specific server tasks and because they already have deals anyway... but the smaller ones, the big fountains of innovation inside OSS, specially in the desktop arena, where things like, NX remote desk capabilities, LSTP, AIXGL/XGL, Beryl/compiz, KDE and Gnome are making M$ look like a monkey 'a la vista'... get their strength drained out...
"" Of course, all of this is speculation. But such a situation would lead to exactly what we are seeing, i.e. ""
oh... you have made a very good post here, IMO. Dont be shy. Its beyond speculation or conspiracy theories,... is in front of everybody eyes if they want to see it.
Posted Jun 18, 2007 13:12 UTC (Mon)
by ofeeley (guest, #36105)
[Link] (3 responses)
Huh?
XGL == Novell (David Reveman etc)
I thought that the majority of the KDE and GNOME developers were sponsored by either Red Hat or Novell?
You leave the kernel out of your list, but there's a hand article here:
which shows that people payed by Red Hat make the most changes to the kernel by several metrics.
So, do you have any backing for the above assertions?
Posted Jun 18, 2007 16:14 UTC (Mon)
by mmarq (guest, #2332)
[Link]
"" I thought that the majority of the KDE and GNOME developers were sponsored by either Red Hat or Novell? ""
Yes i believe they are, but the projects are independent in a large scale, and with agreed and respected large design guidelines, trying to follow standardization efforts and guidelines... and how hard it was to achieve the present 'status quo' (nasty that Gnome vs KDE war)!,... and how much it remains to be done?
If the battle goes hard for differentiation and interoperability, as Linspire CEO says that 'Linux is not Windows', meaning differentiation, which should clearly not be a decisive factor, and instead **is a dangerous illusion** considering the past BSDs and 'Open' initiative failures with terrible consequences for Unix adoption, when everyone started to seek differentiation instead of standards, and because of past records of M$ which have only allowed interoperability to the point they please... messing APIs, changing protocols without notice, 'bubby' trapping code... and their immense FUD machine always blaming the other part!
So this differentiation can easily be extrapolated in spirit to Linspire is neither Suse or RH or Mandriva or Ubuntu... or Sabayon or PCLinuxOS or Linux XP... or any other way around, and we can easily expect much more pressure for *those sponsored or payed developers* to follow internal guidelines instead of the common standardization efforts.
In servers the issue is transparent because differentiation is based mostly on cleanness of code and support quality, and is not feature intense or have any visual impact, and so standards hold.
On the desktop all hell breaks loose for standards.
**Funny that Beryl+compiz will manage to integrate but AiXGL and XGL dont !!?** ,... and why isn't NX server integrated in the Xorg project, considering that X is such a good network protocol ?
... PERHAPS SMALLER INSTITUTIONS (guys!) MANAGE TO MOVE FASTER, INTER-OPERATE BETTER AND FASTER, AND INNOVATE FASTER THAN BIG CORPORATIONS!...
So M$ plays a nice guy, offers interoperability - which they should guaranty anyway by international regulatory bodies and courts of law orders - promoting heavily with it that differentiation trump card, for prospects of adoption and financial gains... but what that they are trying to achieve is to torpedo Linux standards, specially on the Desktop.
IMO so far, the best interoperability effort with M$ was ODF. It made them scared since a long time and willing to go along with it. That is the way to go, because *those that don't learn the teachings of history are doomed to repeat the same mistakes themselfs*.
... so why cant Linux learn from Unix history... and be a dominant desktop powerhouse instead ?
Posted Jun 18, 2007 17:23 UTC (Mon)
by halla (subscriber, #14185)
[Link] (1 responses)
Actually, you're wrong, about KDE at least. The large majority of KDE developers are volunteers
Posted Jul 9, 2007 15:41 UTC (Mon)
by hazelsct (guest, #3659)
[Link]
Posted Jun 18, 2007 14:16 UTC (Mon)
by riel (subscriber, #3142)
[Link]
I guess we can judge the value of these unspecified patents by the
amount of money that Novell, Xandros and others paid Microsoft.
Oh wait, Microsoft paid *them*. Does that imply these patents have a
negative value? :)
Posted Jun 20, 2007 1:59 UTC (Wed)
by xoddam (guest, #2322)
[Link]
> Unmissverständlich
As an aside, this has made clear to me that stuff published by Steven J. Vaughan-Nichols (linux-watch.org) is highly suspect.The journalistic standards of Steven J. Vaughan-Nichols
Excellent, this is nice to see stated explicitly.Shuttleworth: no negotiations with Microsoft in progress
The instant Microsoft names specific patents, the word will go out to seek prior art to break those patents, or other related patents held by Linux-friendly companies that Microsoft might be infringing. Also, for many patents technical workarounds are possible.
Shuttleworth: no negotiations with Microsoft in progress
Shuttleworth: no negotiations with Microsoft in progress
The instant Microsoft names specific patents, the word will go out to seek prior art to break those patents
Well, my point was, how do you know that they haven't *already* named all the specific patents, behind closed doors, and that is how they got Novell, Xandros and Linspire to sign agreements with them?
As I said, the threat may be, "Here are the specific patents. Deal with us or get sued." So they have to deal. But the only deal they can make is one which *doesn't* mention patents (or they run afoul of the GPL, and their business falls apart), so the final agreement is a vague covenant not to sue.
So Microsoft do name patents, but in the dynamic I just described, neither party ends up making them public knowledge, so no-one can go out to seek prior art to break the patents. Sort of a self-perpetuating cycle, actually.
Besides, if Microsoft told Novell about a specific patent number, and then Novell made a deal related to that patent, it seems to me that it's a GPL2 violation. The GPL2 workaround works only because of the vagueness of the threat. So I believe Novell, because their lawyers know that too.
Well, this is an interesting question. I'm not a lawyer so I don't know the answer; however, it seems to me that if patents were mentioned during *informal* discussions before the negotiation of the deal, then those discussions have no legal binding.
What does seem like a legal issue is that, if there is in fact an 'understanding' of the actual patents relevant, then not disclosing those patents to the shareholders may break some fairly recent legislation passed in the US. But again, IANAL, so I don't know.
We should be looking at section 7 of the GPLv2:
Shuttleworth: no negotiations with Microsoft in progress
If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.
While we haven't seen the details of the MicroSoft covenants (funny that there exist secret contracts covering you, where you don't know the terms), we have no choice than to believe Eben Moglen that the Microsoft-Novell deal is not infringing on the GPLv2. I think it required very skillful lawyering to avoid the above quoted section 7. I guess that the wording "knowingly rely" in the GPLv3 is inspired by Moglen's evaluation of the covenants.
Anyone who's followed MicroSoft knows that the company doesn't care about breaking contracts or laws, as long as they get away with it. MicroSoft thinks it can get away with breaking the GPL and they seem to be right: Novell gets all the blame.
"Well, my point was, how do you know that they haven't *already* named all the specific patents, behind closed doors, and that is how they got Novell, Xandros and Linspire to sign agreements with them?"Shuttleworth: no negotiations with Microsoft in progress
zotz/drew, can you say Non Disclosure Agreement and what that says about how Microsoft perceives the strength of its patents?Shuttleworth: no negotiations with Microsoft in progress
Sorry MathFox but you're being a little obtuse.Shuttleworth: no negotiations with Microsoft in progress
I have from "generally reliable sources" that Microsoft ask you to sign a rather obtuse NDA, before they start the patent negotiations.Shuttleworth: no negotiations with Microsoft in progress
Well then, my apologies.Shuttleworth: no negotiations with Microsoft in progress
NDA seems usual
Point zero: I am not a laywer, seek professional advice for your legal problemsShuttleworth: no negotiations with Microsoft in progress
Point one: Patents were introduced to create a public record of inventions; the temporary monopoly was the reward for publication of a true invention.
Point two: The patent offices world wide have watered down the meaning of "true invention" to "novelty" under pressure of their appellate courts.
Point three: The SCOTUS recently ruled that computer programs are not patentable, but that a computer running a specific program may be infringing on patents.
Point four: Software patents are not recognized world-wide; even the SCOTUS has indicated that it is interested in reviewing their legal status for the USA.
Are software patents valid in South Africa?Shuttleworth: no negotiations with Microsoft in progress
Wol
"" throughout the entire saga of Microsoft-Linux deals, I've wondered: are they *really* unspecified? Sure, publicly all Microsoft say is "200+ patents, etc." But perhaps in private their lawyers arrive at Linux (or Linux-using) company X's offices and hand them a list of the exact patents they claim are being infringed upon. They then say, "These are the patents... "SO WHERE IS THE COMMUNITY... haan !?
"" So Linux corporations have to deal with Microsoft. And, in order to fulfill the GPL, they have no choice but to make 'covenants' that don't specify which patents are relevant. ""
QUOTE: "The big boys are left alone [...] but the smaller ones, the big fountains of innovation inside OSS, specially in the desktop arena, where things like, NX remote desk capabilities, LSTP, AIXGL/XGL, Beryl/compiz, KDE and Gnome are making M$ look like a monkey 'a la vista'... get their strength drained out..."SO WHERE IS THE COMMUNITY... haan !?
AIGLX == RedHat (KristianHøgsberg, AdamJackston etc)
http://lwn.net/Articles/222773/
Sorry for the loose language SO WHERE IS THE COMMUNITY... haan !?
"I thought that the majority of the KDE and GNOME developers were sponsored by either Red Hat SO WHERE IS THE COMMUNITY... haan !?
or Novell?"
working on KDE their spare time. Which, of course, makes the achievement of KDE even more
amazing.
Can you back this up? Where are the data summaries like the LWN lists of who wrote the 2.6.2x kernels?SO WHERE IS THE COMMUNITY... haan !?
Shuttleworth: no negotiations with Microsoft in progress
"A promise by Microsoft not to sue for infringement of
unspecified patents has no value at all"
I learned a great new word from one of the trackbacks:A great new word: