Shuttleworth: no negotiations with Microsoft in progress

Posted Jun 17, 2007 7:26 UTC (Sun) by kripkenstein (guest, #43281)
In reply to: Shuttleworth: no negotiations with Microsoft in progress by JoeBuck
Parent article: 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.

Shuttleworth: no negotiations with Microsoft in progress

Posted Jun 17, 2007 9:53 UTC (Sun) by MathFox (guest, #6104) [Link]

We should be looking at section 7 of the GPLv2:

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.

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.
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.

Shuttleworth: no negotiations with Microsoft in progress

Posted Jun 17, 2007 12:52 UTC (Sun) by zotz (guest, #26117) [Link] (5 responses)

"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?"

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

Shuttleworth: no negotiations with Microsoft in progress

Posted Jun 17, 2007 13:39 UTC (Sun) by MathFox (guest, #6104) [Link] (4 responses)

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

Posted Jun 17, 2007 14:25 UTC (Sun) by oska (guest, #25556) [Link] (3 responses)

Sorry MathFox but you're being a little obtuse.

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.

Shuttleworth: no negotiations with Microsoft in progress

Posted Jun 17, 2007 15:18 UTC (Sun) by MathFox (guest, #6104) [Link] (1 responses)

I have from "generally reliable sources" that Microsoft ask you to sign a rather obtuse NDA, before they start the patent negotiations.

That would explain why negotiations with Red Hat or Ubuntu didn't really start.

Shuttleworth: no negotiations with Microsoft in progress

Posted Jun 17, 2007 23:45 UTC (Sun) by oska (guest, #25556) [Link]

Well then, my apologies.

I still find it hard to believe, but if companies have entered into such NDA's with Microsoft then they are very foolish.

NDA seems usual

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.