The text of the new Moonlight covenant

[Posted December 23, 2009 by corbet]

For the curious, Microsoft has posted the new "covenant not to sue" covering Moonlight 3 and 4. It is still quite narrow. "Microsoft, on behalf of itself and its Subsidiaries, hereby covenants not to sue End Users for infringement under Necessary Claims of Microsoft and its Subsidiaries on account of such End Users' use of Moonlight Implementations to the extent originally provided by Novell during the Term and, if applicable, the Extension or Post-Extension Period, but only to the extent such Moonlight Implementations are used as Conforming Runtimes." Microsoft can also discontinue it at any time.

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The text of the new Moonlight covenant

Posted Dec 23, 2009 15:48 UTC (Wed) by jeleinweber (subscriber, #8326) [Link] (4 responses)

It's a sad contrast with the "... perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable ..." license Google offers the Wave federation protocol under.

The text of the new Moonlight covenant

Posted Dec 23, 2009 16:43 UTC (Wed) by DOT (subscriber, #58786) [Link] (3 responses)

"worldwide"... So what about people on the moon? I read that they are going to build a station there. It's a trap! ;)

Moon

Posted Dec 23, 2009 21:29 UTC (Wed) by ncm (guest, #165) [Link]

They're just trying to help motivate the moonizens not to form their own government and secede.

Moonizens don't get moonlight, they get earthlight, which is way better.

The text of the new Moonlight covenant

Posted Dec 24, 2009 3:24 UTC (Thu) by lkundrak (subscriber, #43452) [Link] (1 responses)

According to the dictionary [1], "world" can be understood as synonym of "universe," which includes moon.

[1] http://m-w.com/dictionary/world

The text of the new Moonlight covenant

Posted Dec 26, 2009 12:41 UTC (Sat) by macc (guest, #510) [Link]

Pfffffft.
Worlds Greatest ... ~ = biggest thing a US citizen has seen at home.

International Union ... ~= group of US citizens comprising a faint worker organisation.

;-)

MACC

Useless

Posted Dec 23, 2009 16:19 UTC (Wed) by dskoll (subscriber, #1630) [Link] (2 responses)

Microsoft writes: "Conforming Runtime" means plug-in or other runtime functionality hosted by a Conforming Host for receiving and rendering, wholly within such Conforming Host, media and interactive applications compatible with Silverlight 3 or Silverlight 4.

And a Conforming Host is defined as: "Conforming Host" means either a (a) web browser; or (b) minimal shell application (e.g., launcher), implemented by Novell as described in and only to the extent compliant with the Silverlight Specification...

So the covenant applies only to software implemented by Novell. Microsoft's promise is worthless.

Useless

Posted Dec 23, 2009 16:31 UTC (Wed) by butlerm (subscriber, #13312) [Link] (1 responses)

The language clearly indicates that *any* web browser is a "Conforming Host".

Both the (a) and (b) division and the semicolon after the word "browser" make
that clear.

Useless

Posted Dec 23, 2009 16:56 UTC (Wed) by dskoll (subscriber, #1630) [Link]

You are right; I misread that. The covenant is still useless for many other reasons, but not that particular reason.

The text of the new Moonlight covenant - Open Source don't apply

Posted Dec 23, 2009 18:10 UTC (Wed) by jjs (guest, #10315) [Link] (1 responses)

<quote>
End User means an entity or individual that uses for its intended purpose a Moonlight Implementation obtained directly from Novell or through a Distributor. An entity or individual is not an End User when such entity or individual resells, licenses, supplies, distributes or otherwise makes available to third parties the Moonlight Implementation. For avoidance of doubt, an entity or individual cannot qualify both as an End User and a Distributor for use of the same copy of a Moonlight Implementation.
</endquote>

In other words, open source doesn't apply - you can receive but you can't redistribute. So don't hand that Novell Suse disk over to your friend to install on their computer, or you lose the right to use Moonlight.

The text of the new Moonlight covenant - Open Source don't apply

Posted Dec 23, 2009 23:46 UTC (Wed) by lacostej (guest, #2760) [Link]

Can't you be both a Distributor and and End User (of a different copy) of a
Moonlight Implementation making you able to receive and distribute copies ?

IANAL, but the wording is convoluted.

The text of the new Moonlight covenant

Posted Dec 23, 2009 21:40 UTC (Wed) by tbrownaw (guest, #45457) [Link] (7 responses)

Microsoft can also discontinue it at any time.

Well, that sounds rather useless....

Microsoft reserves the right to update (including discontinue) the foregoing covenant pursuant to the terms of the New Moonlight Collaboration Agreement between Novell and Microsoft that was publicly announced on or about December 17, 2009 (the "Agreement"); however, the foregoing covenant will continue as to specific copies of Moonlight Implementations originally provided by Novell and distributed before any such update.

So what exactly are these terms in this Collaboration Agreement? It sounds like there might be conditions on their ability to discontinue this.

The text of the new Moonlight covenant

Posted Dec 23, 2009 23:17 UTC (Wed) by freemars (subscriber, #4235) [Link]

"No boom today. Boom tomorrow. There's always a boom tomorrow."
-- Susan Ivanova, Babylon 5

The text of the new Moonlight covenant

Posted Dec 23, 2009 23:28 UTC (Wed) by rahvin (guest, #16953) [Link] (4 responses)

Balmer has publicly stated his goal is to get revenue from FOSS using MS patents. So what you do is you offer a patent pledge that you can revoke at some later date, you get the community to implement the patented feature in software that can't be replaced easily. Then you revoke your patent pledge using whatever period is necessary (30 days, 6 months, 1 year) then you go after companies for using the software.

MS isn't in a position to need to do this yet, but I guarantee once revenue begins to drop consistently quarter on quarter that they WILL take action. If you question that such a result is possible answer this question.

Why is MS, the company that has been the most damaged by software patents and patent trolls in general, petitioning the supreme to keep software patents when said patents have cost them more money than all the rest of the software world put together and have never generated even enough money to support even the patent applications they make? The answer is simple, they intend one day to use their software patents against a competitor and feel that even through it's cost them billions of dollars they will ultimately reap more from them than they have paid out. The only situation where that is true is in using them against their largest competitor where their standard tactics haven't worked, and that's FOSS. The end game scenario where MS market share is declining in both windows and office (their only profitable sectors) is to use their patents against FOSS competitors and shut them down or extract revenue from users.

The text of the new Moonlight covenant

Posted Dec 24, 2009 1:01 UTC (Thu) by puntium (guest, #58115) [Link] (3 responses)

I think there's some truth to what you're saying but it's a bit more
nuanced than that.

I don't believe that any of the current senior management team at Microsoft
*wants* the company to head down that route. Neither do the management
teams at any other software company (including my own) that encourages
their R&D to amass huge stockpiles of patents. The people running any of
these companies (including Microsoft) are intelligent, highly motivated
people who are aggressively competitive; they don't exactly fantasize about
presiding over a company in decline and metastasizing into an evil IP
troll.

That having been said, under the auspices of fiduciary duty to the
shareholders, management teams feel that they have a need to acquire these
as a form of insurance to make sure that *IF* (or, as you are arguing, when
- obviously inevitable on a long enough timescale) the company goes down
the tubes, there's maximal value there for some private equity funded
patent mining douchebags to roll through and shell out cash to acquire the
IP assets.

The text of the new Moonlight covenant

Posted Dec 24, 2009 1:04 UTC (Thu) by puntium (guest, #58115) [Link] (1 responses)

Also, the nature of the equities market and how it is basically about
incorporating the net present value of future expectations, is such that it
is certainly in Microsoft's financial interest to keep talking about their
patent portfolio and their nuclear option since that helps maintain a floor
on the share price, even if they don't see that as the most likely or
desirable scenario.

Microsoft doesn't plan for death (their shareholder-execs will have dumped stock by then)

Posted Dec 24, 2009 3:53 UTC (Thu) by hozelda (guest, #19341) [Link]

Microsoft salespeople will have a good argument for companies to move to the interoperable and featureful MSdotnet after much has been invested in vanilla FOSS versions. These arguments would be tangential to the patent threats. [The patent threats would mostly be used to create FUD as needed to win the account.] Microsoft is the leader in and creator of all of these technologies and will try to preserve monopoly status as much as possible (eg, through integration with the Windows ecosystem and Microsoft tools) in order to control interop.

As for patents, Bill Gates and Nathan Myhrvold have significant interests in patent troll companies. This is the major loophole of any Microsoft covenant: they don't apply to third party proxies working to further Microsoft's interests. Microsoft (re)writes the standard so they are in the position to take out the relevant patents and hence profit through proxy troll companies.

Also as concerns this pledge, by continually moving up the version of the spec, companies wanting to stay (for the time being) in the presumably safer patent zone (eg, if they forget about the trolls) will keep getting further and further into MS created technologies. This creates long-term value for Microsoft assets (MS software and MS patents), while fighting investments in alternatives and while raising the escape costs. Whoever wants to escape will have the clock running for replacing the code in order to avoid patent pressures from Microsoft themselves.

The Comes exhibit, for example, does show Microsoft planning a patent/standards-based approach in the late 1990s in order to fight Linux and FOSS. Their production of software patents really ramped up since that time.

Microsoft has a long history of exploiting everything they can that will help them maintain their monopoly profits and levers. For example, they most certainly do go after competing standards and ecosystems to disrupt them from within [read Rob Weir's postings on OOXML/ODF for one current example]. They use misleading marketing (eg, from "independent" analysts). When was the last time Microsoft competed straight on merits? Ever? They have built out from the core DOS/Windows monopoly. [Even today, with their Yahoo deal, they have positioned themselves to take over in a monopoly fashion should Google stumble.] They don't accept "second sourcing" of any kind (except to the extent they control it and profit directly from it). Which reminds me, one further reason for them to support FOSS is to help avoid antitrust scrutiny (and of course to keep potential customers from bailing early or outright avoiding Microsoft technologies). They also want the FOSS devs to do Microsoft technology instead of contributing to competing ecosystems.

The text of the new Moonlight covenant

Posted Dec 29, 2009 1:01 UTC (Tue) by gdt (subscriber, #6284) [Link]

...under the auspices of fiduciary duty to the shareholders, management teams feel that...

Anyone else tired of the use of "fiduciary duty" as an excuse for poor corporate behaviour?

As far as this particular argument goes: the duty is to shareholders, not to creditors. Using patent holdings to maximise the value of Microsoft to creditors has nothing to do with the notion of "fiduciary duty".

There are obligations to potential creditors, but they are irrelevant as Microsoft will be able to pay creditors from their cash at hand for many years to come, which fully meets those obligations.

The point of defensive patent portfolios is to deter some patent claims with counterclaims, reducing a risk of doing business in the software industry. You can see how Red Hat has structured their patent portfolio to limit its non-defensive use. That is not the case with Microsoft, they are following the historical IBM strategy of using patents as a means for discouraging competitors and taxing collaborators.

The text of the new Moonlight covenant

Posted Dec 24, 2009 17:59 UTC (Thu) by jhardin (guest, #3297) [Link]

So in other words, "We promise we won't sue you until we want to sue you."

The list of spotted problems keeps growing

Posted Dec 29, 2009 3:45 UTC (Tue) by hozelda (guest, #19341) [Link]

http://www.the-source.com/2009/12/more-on-the-moonlight-c...