Microsoft seeks input on promise not to sue individuals

I just shake my head at Microsoft's antics sometimes. They seem like the classic out of touch parent who can't understand why kids like this new fangled rock'n'roll kid Elvis. Why, Frank Sinatra is at his peak, still going strong, isn't that good enough? Kids these days ....

The individual covenant is for any OSS development, for any project, done in any geography—as long as it is done non-commercially. We want to get the covenant to the point where it is clear that even if the code ends up being used in a commercial sense, the individual who did the work remains covered by the covenant—only the entity that is bringing the code to market commercially is responsible for clearing that product for use (like ANY other commercial entity bringing a product to market).

Of course, this is still useless for FLOSS authors (even if the "covenant" were truly binding on MS, which doesn't seem to be the case). They will graciously permit you to write software that comes with a Microsoft tax, and to thank them because they won't sue you (maybe) for doing them this service.

Thank you, Novell, for participating in this farce.

Largely, it seems that people who participate are saying "Why have these covenants? Why not just tell us what infringes your IP and let us fix it? Obviously, because you want to remain the brutal, crushing force you are now."

There are 3 ways I can see this going; (1) some really big, powerful company that supports the GPL will set them right, or (2) people in the Free Software world will figure a way to disarm them somehow. Or, Microsoft will wake up and realize they can actually *gain* by supporting Free Software (less likely of course...)

Meanwhile, back in the real world, real people continue to do real work, ignoring the uncivilized howling and grunts from the northwest as they try to clean up the messes made by the beast and its worshippers.

An OSS developing individual has no money (so claims of damages is largely pointless) and if source code is released under the GPL, cannot be retracted by the original developer.

I always assumed that a developer could have his project/code destroyed by (treats of) patents suits, but never have to pay up. I've certainly never been scared of being sued, only that something I wrote could be nullified.

Jason,
Some of your comments reveal a misunderstanding of what Free Software is. You said above, "Approximately 50% of Linux (common distributions) is made up of components use under non-Free Software licenses." This is simply false; even those distributions that include non-free pieces only have small non-free portions, and both Fedora and Debian are major distributions that are 100% Free Software. I suspect that you are confusing "Free Software" with "GPL software". It wouldn't surprise me if approximately half of an average Linux distribution were covered by the GPL, with the other half covered by various other Free Software licenses.

Whether software is covered under the GPL or not, to be Free Software (or Open Source, if you prefer that term) it must allow redistribution by all receivers, with the same rights they received the software under. I understand that Microsoft is not a fan of this model, but there is no compromise possible on this point. Redistribution must allow preserving rights, or else it isn't Free Software.

Or, to be succinct about it: Free Software must allow users to become distributors who can in turn compete with their own distributors. Otherwise it is not Free Software (or Open Source).

The Microsoft/Novell patent arrangement attempts to sidestep this, apparently thinking that by using the word "covenant" instead of "license" everyone will think it's OK. But no matter what you call it, it will likely result in both Novell and Microsoft losing distribution rights to any GPL code (and possibly otherwise-licensed code) on which Microsoft asserts patent rights.

I also think your reaction to Bradley Kuhn is interesting. You say you don't agree with everything in his post. I see his post as primarily factual, other than some recommendations to the Free Software community. What specifically do you disagree with there, and how is it non-factual?

I can't remember exactly what I wrote, but it went something like this:

I'd love to give you my input, but I have a policy against posting profanity on a publicly-accessible archive.

Microsoft's policy is a cynical, evil FUD-filled ploy designed to make Linux users afraid that maybe they will be sued. You and your evil minions should stop pretending to be interested in the Free Software community and leave us the h*ll alone.

Here's one suggestion for Microsoft I came up with as we cannot expect them to unilaterally pledge to license all their patent portfolio to free software projects:

Rather than trying to negotiate a patent covenant between Novell's customers and Microsoft, wouldn't it be better to have Microsoft agree to a "friendly patent infringement notification process", in which whenever a patent infringement is uncovered the copyright holders of the free software project involved would be given enough time to review (and possibly contest the issue) and in case the infringement is acknowledged enough time would be given to work around the patent (as you know it free software developers love to innovate... :-)).

Obviously some arbitration process is needed in case the copyright holders do not agree that a patent is infringed.

The key in this process would be that there is commitment not to sue anybody except in the worst cases where the parties cannot be conciliated. And Microsoft could also open the possibility as part of this process to license their patents to the Free Software community on a case by case basis if they were to consider it is the best option.

I think that if all parties are honest about their intents then it is possible to come to an agreement on similar terms as it will re-assure Novell's customers about the possible impact of IP-issues with free software distributed by Novell.

What do you think?

Patent lawsuits and threats are one of the many ways that Microsoft can gain an advantage over the open-source competition. So they're obviously not going to deny themselves this option.

As expected, their "promise to individual developers" fits completely in this vein. It gives open-source developers no legal protection at all, and thereby keeps all of Microsoft's competitive advantages on the table.

If they want some protection, only copyleft software such as the GPL. Who knows, MS may come to love the GPL yet.

Then let the non-profit sign a deal that gives them the same rights to all future patents granted to or controlled by MS (word this right please) in exchange for a dollar and we are good to go.

Something like that.

Trust is hard to come by this late in the game.

Some other big players might benefit big time from such a move as well.

all the best,

drew
http://www.ourmedia.org/node/262954
Sayings - Deterred bahamian Novel.
One of my little contributions to Freedom.

So, make a commitment to that: Microsoft will not sue for patent infringement except as a counter-claim to someone suing them. Put it in an actual license, not just a "covenant" written on the wind.

That would be enough to satisfy me.