Monomania (Tux Deluxe)

Posted Oct 16, 2009 9:03 UTC (Fri) by BeS (guest, #43108)
In reply to: Monomania (Tux Deluxe) by AlexHudson
Parent article: Monomania (Tux Deluxe)

>It's well known that they covered each other's customers.
>The claim above that I don't think can be supported is that Novell themselves are covered by that agreement.

Let's try a syllogism:
Every customer from Novell and Microsoft is covered by the agreement. So if someonne gets Mono from Novell he is save, right? From whom does Novell gets theri Mono they advance? It's the Novell version, right? So Novell uses a Novell version and a Novell version is covered by the agreement for everyone who uses is, Novell included.

Monomania (Tux Deluxe)

Posted Oct 16, 2009 10:43 UTC (Fri) by AlexHudson (guest, #41828) [Link] (2 responses)

I'm sure I don't need to point out the error on logic in the above :), but it's irrelevant anyway: the promise not to sue is offered by MS, but not tied to the software (it's not a license). MS say "we won't sue Novell's customers" - where Novell got "their" copy of Mono from is inconsequential, the promise doesn't apply to them.

Monomania (Tux Deluxe)

Posted Oct 16, 2009 12:10 UTC (Fri) by pebolle (guest, #35204) [Link] (1 responses)

> the promise not to sue is offered by MS, but not tied to the software (it's not a license)

0) Why isn't it a license?

1) In case the fact that this document (declaration? whatever?) is called a promise not to sue is relevant for the answer to that question: the GPL could also be rewritten as a promise not to sue (with sufficient abuse of legalese) without changing its effects. I'd say that (hypothetical) GPL rewritten as a promise not to sue should still be regarded as a license.

Actually, I'd think that in general a lot of contracts, licenses, etc. can be rewritten negatively (eg, as a promise not to sue): that would not change their effects (but the parties involved are then forced to use documents with really, really ugly legalese).

Monomania (Tux Deluxe)

Posted Oct 16, 2009 12:29 UTC (Fri) by epa (subscriber, #39769) [Link]

The distinction between a promise-not-to-sue and a licence is the main reason why some (such as the FSF) are unhappy with Microsoft's 'community promise' not to sue over the software patents they hold that apply to C# and the CLR. Whereas a licence is generally irrevocable unless it states otherwise, you could possibly get out of a promise-not-to-sue by passing on the patents to another company which is not bound by your promise.

Indeed, promises in general are not binding; if I promise to pay you a dollar tomorrow, you have no recourse if I break it. However the doctrine of promissory estoppel means that if I promise to allow use of certain property rights and you take action based on that promise, I cannot then break the promise and sue you. IANAL, so that's the limit of my knowledge, but I do know that there is a difference between a promise and a licence, and while it may be legalese, it's the kind of legalese that makes a difference in some cases.

(So, then, back to the 'community promise' offered by MS to people who are not Novell customers: I don't share the FSF's concerns, since it seems to me pretty hard to persuade a court that you can get out of it, even if the patents were transferred to a third party. I would expect a patent suit from a third party to be estopped just as much. But the FSF's lawyers take a more cautious view and think that only a true licence will make sure of this. (Then again, I was happy to use and distribute Mono even before this 'community promise', since there is plenty of software which implements software patents, some of which are even held by Microsoft, and I see no reason to pre-emptively cringe and go begging to patent-holders in advance for every program we want to write. Let them sue, if they dare.))