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One of the key elements in the Novell / Microsoft Collaboration announcement from last week was a patent covenant that was intended to provide non-commercial, individual open source developers with the coverage necessary for them to develop code without concern of infringing any of Microsoft’s patents. (Before you go too far, please be aware that we are getting rid of the “hobbyist” label – there have been many comments about this. Also, this blog posting is not about the openSUSE.org covenant.) While the idea was solid, the execution seems to have missed the mark a bit. There has been much written in the past few days in the blogosphere about this, and many questions have been raised about what is or is not covered by the existing covenant. I think it important for the community to know that Nat Friedman and Miguel de Icaza from Novell have been extremely clear with us that the existing covenant is not good enough – they are being excellent advocates for OSS developers. Nat, I’d like to thank you publicly for your cogent arguments and for the cooporative approch you have taken on this so far.


At this point I am working with a broad range of folks both inside Microsoft, at Novell, and in the community. That said, the real voice of the community is…well…from those of you I don’t know. I have to tell you that the issues with getting this covenant right are incredibly complex and there are real concerns on all sides. Our design goal is to get language in place that allows individual developers to keep developing. We are not interested in providing carte blanche clearance on patents to any commercial activity  – that is a separate discussion to be had on a per-instance basis. As you comment, please keep in mind that we are talking about individuals, not .orgs, not .com, not non-profits, not…well, not anyone other than individual non-commercial coders.


As comments come in, and as we continue down the path of driving this to resolution (I hope quickly), I will provide greater clarity around our thinking and the issues at hand. Remember, I am not a lawyer – I am a business guy looking to find a workable solution for all parties.


I look forward to your comments. I think we should be able to find a really smart approach to this.


*******


Updating from my flight to Barcelona:


Someone forwarded me this link from Bradley Kuhn at the Software Freedom Law Center. I have crossed paths with Brad in the past and he is a very bright guy. Clearly, our philosophical approach to software differs, but I respect his intellect and think that this criticsm should be recognized by us. I don’t agree with everything he says in this post, but it is in the direction of things that I need keep working to address.

Comments (96)

  1. TAG says:

    There is no much benefits in this no-sue agreement.

    First of all – software developed by me (non-commercial, individual, hobbyist developer) must get into SUSE Linux.

    This man it must be:

    a) High quality (to allow usage by others)

    b) As generic as possible (i.e. others must be able to benefit from it)

    With only this one restriction – a lot of home-grown for fun projects will never get  Microsoft patents permit.

  2. jasonmatusow says:

    TAG – thanks for the comment.

    We have to separate two things. The openSUSE.org covenant is for ANY developer (even professionally compensated for that work) to contribute to the openSUSE.org code base. The covenant terms apply to that activity.

    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).

    TAG, I hear you about OSS development that the meritocracy element is built upon the quality of the code you create and the accpetance of that code by a project maintainer. I disagree that "generic" is a requirement although broad benefit is important. My view of the issues we are looking to deal with (not there yet) are getting code, modifying code, generating new code, using that in binary form for yourself, and then distribution considerations.  

    Keep the comments coming. – Jason

  3. orcmid says:

    I must say that I find this very confusing.  For example, I am currently developing an open-source desktop middleware bridge, and I’ll be developing some related open-source software later on.

    The result will be fully open-source under the modified BSD license.

    At the same time, I have a sponsor for the initial work, and I am being compensated for developing it on their time frame and for integration in their closed-source product.

    Now it happens that all of this – the product, my open-source bits, and the applications operate on the Microsoft Windows platform exclusively.  (The product is in Java and I suppose it could run elsewhere, but not with the open-source bits which are very much native-Windows exclusive and accessed via JNI.)

    I very much doubt that I will be receiving a letter from Microsoft about any of their intellectual property, especially patent claims, that my code happens to cross over.  I also doubt that the commercial user of the software under the usual BSD provisions, or even the users of the binaries only, will receive any such letters or notices.   I think that’s the practical matter.

    Yet, as is often the case, this effort by Microsoft and Novell raises the specter of potential infringement and also attempts to segregate classes of individuals for purposes of the covenant.

    I find it hard to pass myself safely through the cookie-cutter of the non-commercial individual.  Any way I squirm around, I think I come out of it dismembered.  Now, that is only raised because the covenant exists, which is an odd thing, since absent the covenant I am simply living beneath Microsoft’s radar, attention, and — I think — intentions.

    But now that the covenant is on the table, I’d like it to apply to me, of course.

    But in truth I don’t think it does.  And while I’m not that much concerned, I don’t know about users of the code I’ve released into the open-source world, even though everything I do seems to be perfecctly appropriate and aligned with all licenses that I possess for use of Microsoft development tools, deployment of compiled code, release of source code (but no proprietary libraries and I don’t do redistributables at all), etc., etc.

    Of course, patents are a whole different beast and even doing a search for claims that might be infringed in my work is enough to make the whole project unaffordable and not doable in the timeframe required.  This is one of those odd conversations that has a chilling effect even though the covenant takes nothing away.  Yet it is a reminder of an exposure that individuals like myself can do little about (other than leave the field, I suppose, or do what I do and stay confident that I am both highly unlikely to have crossed any lines and am also an unpromising target for any serious litigation.)

  4. Free Penguin says:

    Dear Jason: You don´t  pronounce the words "Free Software" anywhere on your page. Why? Linux is about FREEDOM not just about cheap open source code. Is there a policy of words you cannot pronounce imposed on you by MSFT?

    Regards.

  5. tz says:

    Are you going to sue E-Week for libel, or were Ballmer’s words accurately rendered?  If they are accurately rendered, he is higher up than you and I find them offensive and would negate anything you could possibly say or do.  Even if I take a SUSE release and – under my rights under the GPL – create a GPL only derivative, Ballmer’s quote implies people downloading or distributing even such a GPL-only version not from Novell (and do I have to pay them to be considered a customer) are potentially liable.

    Say and do what you want, but whom should I believe, you or Ballmer?

    http://www.eweek.com/article2/0,1895,2050848,00.asp?kc=EWEWEMNL103006EP17A

    The distributors of other versions of Linux cannot assure their customers that Microsoft won’t sue for patent infringement. "If a customer says, ‘Look, do we have liability for the use of your patented work?’ Essentially, If you’re using non-SUSE Linux, then I’d say the answer is yes," Ballmer said.

    "I suspect that [customers] will take that issue up with their distributor," Ballmer said. Or if customers are considering doing a direct download of a non-SUSE Linux version, "they’ll think twice about that," he said.

    eWEEK.com Special Report: Enterprise Wars: Linux vs. Windows

    However, Ballmer did not say whether Microsoft had any plans to file patent infringement suits against other Linux distributors.

    Competing Linux vendors "are certainly welcome to get involved to quickly provide these covenants not to sue," he said. These vendors have other incentives besides pressure from their customers and the worry about legal action, Ballmer noted.

    The collaboration agreement demonstrates there are other factors "in which our technical cooperation is a definite advantage to Novell," Ballmer said.

  6. tz says:

    You are asking for something impossible.  A Zen Koan.  Which software can written that can both be covered under a patent and yet be distributed under the GPL?  I can’t think of anything.

    When I write something, I’m specifically not going to restrict it by use or user.  That means a .org or a .com or a .mil could use my code.

    What you are saying is that you want to be able to sue some users or those who might get paid to create a derivative work of my code if it happens to do something you have a patent on.

    If you have such a patent, I don’t need your covenant, I need you to tell me NOW so I can remove or otherwise quarantine the offending code.  If anything in any GPL software is something you would assert a patent on, please tell the community NOW.

    Or place the patents in some kind of escrow structure that will not sue any developer or USER of any software covered under an opensource license – MIT, BSD, or GPL.  If you did that, I would trust you, but then there might be GPLed media players using some Microsoft patented codec technology.  So I doubt you would do that.  But only that would suffice – I don’t know that I speak for the community, but if you post this comment, you might get some yeas or nays on this idea.

    Feel free to do what you will with other proprietary software vendors.

    But you cannot restrict the modification or redistribution of any GPL source or binary.  That is the important thing.  And a threat to sue (per Ballmer) under any circumstance is a restriction.  

    We don’t want your patents.  Tell us where they are and we will remove them.  Or assign free and unlimited use of ANY current or future Microsoft held patent to the FSF or other agreeable organization without restriction (Eblen Moglen can probably come up with terms he would find acceptable).

    And try to have your CEO avoid threatening comments.

  7. jasonmatusow says:

    Free Penguin – Words are something I am very careful about. There is no ban on “Free Software” either as a string or as a concept within Microsoft. While I can appreciate that there are elements of LInux that are about Free Software – or more appropriately termed Software Libre, it is not all about that. Approximately 50% of Linux (common distributions) is made up of components use under non-Free Software licenses. Also, The market capitalization of Linux-based commercial activity reaches into the billions of dollars now. Seems to me that this is more than being about “liberty,” “freedom,” or “open.” All laudable concepts, and now carrying enormous implications for all participants in and around software.

    “FLOSS” has been a common usage for me – it seems to cover more of the gamut.

    Jason

  8. jasonmatusow says:

    TZ – thanks for the comments. I don’t expect you to discount the words of the CEO of my company. He tends to be an expressive guy. At the same time, I think it important to listen to the myriad of voices that make up Microsoft. We have >65K employees, and most of the are bright, thoughtful, and talented. Our culture is one of participation and individual contribution – thus, the voices you hear in our thousands of bloggers are critical to understanding what is happing in such a dynamic, large organization.

  9. jasonmatusow says:

    TZ – Second comment – more substantive in nature (I hope). The following sentences are very interesting to me as this is what we are trying to accomplish (in essence):

    "You are asking for something impossible.  A Zen Koan.  Which software can written that can both be covered under a patent and yet be distributed under the GPL?  I can’t think of anything."

    I absolutely am looking for us to find a way to work with the situation you lay out above. The GPL is an important license, but is only one of many. There are literally countless permutations of licensing structures outside of the FLOSS structures. We want to create a mechanism for individuals that attempts to account for the myriad of licensing choices out there. The Individual covenant is about enabling developers, not blocking them.

    There have been many suggestions of patent escrow possibilities in the past relating to how commercial software patenting behaviour could better mix with FLOSS. Also, patent pools and now covenants. To me, when we start having a hard time answering a question is when I know we are hitting on the right issue.

    As for your comment about no restrictions and the GPL, I think you need to consider your comment carefully. ALL licenses represent a collection of restrictions. There is a philosopical foundation for the restrictions imposed by the GPL that you happen to agree with – but reach outside of your own POV for a moment ("walk in another man’s shoes" as I believe Atticus Finch once said), and let’s see if we can find a solution that is respectful of the diveristy of views out there.

    To us, software patents are useful as a mechanism to incent commercial innovation. Our shareholders look for year over year growth, and the generation of strong returns on their investments. We are also interested in respecing past and future business models as well as the IP of others.

    I hear you on the license terms and your desire to see if we can make the impossible possible.

  10. tz says:

    I use Linux, GCC and almost all GPL software and except when I’m developing something like a pure reference implementation for an RFC or something I will release it under the GPL.  Often I must because I incorporate other GPL code.

    To say there are many FLOSS licences is technically correct, and yes, I agree with the "restrictions" if you call them that – the restrictions under existing copyright are greater and I am giving permission for modifications and derivative works ONLY if they are made available under the same terms as my originals.

    The GPL also prevents people from profiting from my work – it is like a park or some other "public place" where I don’t allow people to erect toll gates for entry.

    If Microsoft suddenly discovered it owned a ten-foot strech of property across I-90, and could erect a toll booth, would it?  If you’re looking for short-term growth, and a quick and obvious profit, yes.  Or you could release the rights to cross that property.

    And "diversity of views" doesn’t work when a lion and lamb are deciding on lunch.  Microsoft has done things which aren’t looked upon as being proper – they may have been profitable, but if you wish to put profit first, you will be thought of as a Ferengi in the latter Star Trek series,

    Meanwhile, Microsoft gives to several non-profit organizations, some of which people find objectionable.  This is either a waste of money, or an attempt at helping your reputation at least with a majority.  But if Microsoft is concerned about its reputation, it could do more by not doing bad things within the industry.  Is any licensing revenue going to be greater than the amount you give to these various charitable and educational organizations?  I would tend to doubt it.  If the patents are not for profit, then they are a club – a threat to set lawyers upon the competiton.

    Should I think about how Microsoft sees me when it has stated via various people at the top that they want to destroy the basis of my software and my choice of browser and many other things I hold dear?  Oh yes, I can "walk in another man’s shoes", even if they are dancing into hell.

    I’ve already stated that if you (or Ballmer) think there is something violating a patent in any GPL software, you should simply state what it is.  Instead you cajole and threaten and imply.  That is insulting and annoying.  And the not really veiled threats that are constantly coming from Microsoft is not the worst part.

    Try walking in my shoes.  A multi-billion dollar company might come down with all it’s legal muscle on me because I unknowingly happen to come up with the same idea they did, and will go bankrupt trying to prove there isn’t anything novel about their idea or desparately try to find prior art – before I declare bankruptcy since my lawyer would still charge his fee.  I am always under that cloud.

    You don’t think so?  Have you heard of the midwest company called "Synet" who applied and was nearly approved for the trademark on "Internet Explorer"?  Microsoft knew about the trademark 6 months before releasing their Internet Explorer, and said "pay up or we’ll sue you into bankruptcy" – which Microsoft did, but eventually settled the case.

    This is part of your corporate and legal history.  You DO kill companies who oppose you even when they are the owners of the IP.  You don’t go around problems, you crush your opponents.

    And then there’s Eolas.  I can see how you like software patents and other IP – you can afford to crush the opposition, yet they can’t afford to rebuff a single – even wrong – accusation.

    The frog was wrong to trust the scorpion, yet both drowned in the fable.  Ballmer’s recent words shows Microsoft is still a scorpion.  So why are you suprised that I would only accept it if you remove the stinger?

  11. Louis says:

    Jason,

    Looks like I wasn’t the only one who read the Eweek article. 🙂

    I also tend to think that we are looking at two completely opposing views of ‘property’ here.  It’s very likely that the Free Software community will never agree with the ‘Pro-software-patents’ community.  The differences are deeply philosophical.  I do appreciate your desire to find common ground, though.

    There is one thing that MS can and should do to get things moving forward.  Let the FOSS community know exactly what patents they believe are being infringed, so that the community can remove, change, or dispute.  That would eliminate the need for shady CNS deals and litigation threats.  It might also lend a bit of credibility to the claims that MS is trying to work with the FOSS community.

    As of right now, the message from MS seems to be this: "The unpaid legions who write the code can keep on writing it to our benefit.  We shall only go after the deep-pocketed competitors who choose not to pay our IP tax."

    As for the 65k employees there, only one gets his comments quoted in an article that my CIO or CEO might read.  Since only a few of us geeks actually dig deeper, the majority of the business world only hears one voice, and it scares the bejesus out of them.

    That being said, thanks for your work in this area.

  12. Rootman says:

    Geez, sounds to much like the bully saying "Give me your luch money and I promise not to beat you up."

  13. I’m afraid I haven’t had enough time to read all the comments on this yet. I intend to post a more full and reasoned discussion on my blog, and I’ll certainly post here with a link to it when I do.

    But there’s one core principle at work here which I think is important for you to understand as far as why I don’t think you can succeed at your goals while still being acceptable to the community.

    It’s absolutely core to the community’s belief that discrimination against ANY field of endeavor is contrary to the ethos of open source. The OSD and DFSG both include requirements to this effect, and it’s the FSF’s "freedom zero": A (copyright) license which includes a "no commercial use" clause cannot ever be considered Open Source or Free Software.

    And while I accept the technicality that this isn’t a license at all, it comes down to the same thing: the protection offered is only on a "no commercial use" basis. The community that concluded that commercial restrictions in licenses were absolutely unacceptable is simply not going to turn around and decide that a patent covenant with that caveat meets their requirements.

    As you know from my earlier posts I originally was in favor of this agreement – I thought that the issues I was seeing others complain about were simply poor implementation or bad marketing and would be resolved quickly. But your posts have made it clear that that’s not it at all – being incompatible with the spirit of open source and free software is inherent in the *design goals* of this agreement from Microsoft’s perspective.

    Unfortunate, but I’m writing this one off as unwinnable. I don’t see any sign that MS is likely to backtrack on the parts that really matter…

  14. Joe Buck says:

    Jason,

    I don’t see how any developer who uses the GPL, and builds on existing GPL work, can count on any agreement from you, no matter how you word the terms.  The problem is that there is quite specific language in the GPL that states "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". So, if the developer counts on a promise that applies to that developer personally, but not to every recipient of that developers’ code (that is, not just Novell/SuSE but also Red Hat), it isn’t worth anything and might even cause the developer to forfeit his own right to copy or modify the covered work. For original work (not much is totally original since open source software is an ecosystem) modifying the promise so that the individual developer is not sued for the activity of others she distributes code to could help, but there are still problems with GPL section 7.

    My advice is just to forget the whole thing.  Microsoft is already constrained from suing individual developers by politics, at least in the short term: bad publicity will pretty much guarantee no software patents in the EU. If you want to contribute specifc patents on a case-by-case basis to the open source community, perhaps in exchange for access to patents put into the pool by other actors, that would help.

  15. M. Leo Cooper says:

    To show its sincerity, MSFT should

    pledge an end to its "black ops" against Linux and the Open Source community.

    Specifically, no more support for SCO-type lawsuits.

    And, it would be helpful if Microsoft would publish a public apology

    for its financial support of the SCO Group in early 2003, the support that enabled the lawsuit to go forward.

    And, a public pledge disavowing the SCO Group’s current lawsuits and pledging no further financial support for same . . .

  16. The way to communicate with a corporation is economically. It is unacceptable behavior on Novell’s part to legitimize and participate in MS FUD campaign, and to violate the very license that allows them to distribute the community’s work in the first place. I say let the big MS lump payment be their severance from the community.

  17. gwc says:

    What is with the 5-year life of the covenant?  Why only 5 years?  If Microsoft is really trying to build a long-term relationship with OSS, how can anyone take it seriously if all bets are off in 5 years.  

    Also, your comments about openSUSE… you indicate that all openSUSE development is covered by the patent covenant.  Fine… But Novell has stated clearly that openSUSE absolutely does not contain any MS patent material.

    So the only reason to have such a covenant is to allow MS patent material to be introduced to openSUSE from this point on.

    Does MS plan on pursuing patent litigation on openSUSE and its derivatives once the 5-year covenant has expired… assuming that MS patent material has found its way into the openSUSE code based on this covenant?

  18. Dr. Hook says:

    It is all smoke and mirrors to those of us who watch these things carefully.  This is nothing more than public relations.

    The black cloud of FUD surrounding Linux and open source that was generated by SCO (and Microsoft) has pretty much cleared, and Linux has prevailed.  The strategy backfired and FLOSS is gaining more and more market share partially due to this vindication so Ballmer and Co. has to generate another red herring to cast suspicion and doubt on FLOSS to slow it’s adoption.

    Novell needs to boost its profits so it makes a deal that gives it the appearance of the "safe" Linux, Microsoft uses this as public relations ("See how we want to play nice and cooperate with the open source community?") all the while making passive threats out of the other side of it’s neck!

    The writing is on the wall.  At this stage of the game, MS would be crazy to start suing small businesses and developers over it’s patents because they’ve already been twice ruled a monopoly, however, as Linux and FLOSS continues to gain market share at Microsoft’s  expense it begins to nullify that argument.

    Microsoft NEEDS Linux to avoid the antitrust cases.  That’s likely the reason they bailed out Apple a few years back.  BUT they want to CONTROL Linux and if market adoption becomes too great a threat, this is when you’ll see them start trying to flex their patient muscles which will signify the slow painful death of the monopoly.  They’ll win some and lose some and in the end they will go the way of IBM, with their glory days behind them, they will be one of many operating systems and software vendors and they will finally have to compete on the basis of their talent and the quality of their products.

    See, you can’t call it a cancer one day and turn around and embrace it the next!  You can’t bully and manipulate and cheat for decades and then expect those that were bullied to just accept that you’ve turned over a new leaf.  It would take some pretty dramatic measures as outlined in some of the previous posts to convince the community of their sincerity.  Forget the olive branch, it’ll take the whole damn tree!

  19. Maxn says:

    Microsoft sees the community’s out-cry about the imo back room deal ?; and to say the deal its "complex" is a sidestep of the fact that Novell and Microsoft did not care about how "complex" it was when the thought not include the community and users alike in  the loop, as well as in the details of this deal.

    Is Microsoft now aware that support for Novell is at risk,  aware of the loss of that community, that users also may through the mixed mix of information will make the choice to move to another distro as well.  Where does this stop, all the careless actions of large corporations with only a monopoly in mind.

    I moved to Linux years ago, desktop ect, I have enjoyed the change so that nothing Microsoft does, will allow me to go back. Microsoft is already out at my house, Novell-SuSE can now join Microsoft out the door.

  20. Ami Ganguli says:

    I’m trying to think of an example where Microsoft’s proposed policy would be useful, and honestly I can’t think of anything.

    If I end up violating a patent inadvertently (which I suspect happens on a daily basis), I’m going to stop distributing the software as soon as I become aware of the offending patent.  I think that will probably be enough to limit the legal damages, and honestly Microsoft wouldn’t get much benefit from going after me anyway.  Their legal fees would be more than they could squeeze out of me.  So I’m not actually concerned about my personal liability.

    If Microsoft hopes that this policy would encourage me to keep the patented code in my work, in hopes of squeezing money out of some deep-pocketed .com, they’re dreaming.  Any code I release is intended to be used.  In return I gain from the ecosystem that springs up around the work.

    The system doesn’t work if MS can tax anybody who uses my code.  No ecosystem would develop, so it’s in my interest to get rid of the patented code.

    This is true with or without the policy, so what’s the difference?

    … Ami.

  21. S. Colcord says:

    The core issue, IMHO, is that Microsoft is trying to deal with FOSS software by cutting deals with particular companies.  But unlike traditional business models, the identity and technological ownership of the FOSS community and software base is (deliberately, in some cases) not divided along corporate lines.   Rather, it’s divided by the license that the software is distributed under.  The BSD license forms one pool of software, the GPL another, etc.  If Microsoft wants to license its patents to the FOSS community, it could do so by giving a blanket release to all software published under a particular license.

    I believe that Microsoft would collect considerable goodwill from such a gesture, and it might also help reduce antitrust concerns.  However, it also means that Microsoft would be unable to directly exploit such a release for commercial advantage by favoring a particular vendor (as they appear to be attempting with Novell).  That kind of favoritism is, I suspect, incompatible with the core intent of most FOSS at a very fundamental level.

    I’d recommend blessing the GPL, but if Microsoft can’t stomach that, it could create a modified GPL that is identical except for adding a clause prohibiting the commercial sale of the software, and then give a blanket patent license to all software released under that license.   It could then try to build up a community around that license, in competition with the other FOSS licenses.  Obviously, that might be viewed quite negatively by some, but others might appreciate the gesture, especially if Microsoft was able to persuade other large software vendors to grant similar licenses, and/or offer indemnification to third-party patent claims against creators or users of software under that license.

  22. David F. Skoll says:

    I would love to give you my input, but I try not to use profanity on a page that might be archived somewhere.

    Microsoft’s motivation is pure evil FUD.  It’s purely to make Linux users worried that they *might* get sued.

    So you and your evil minions should stop pretending to reach out to the community and leave us the h*ll alone.

  23. Jason Earl says:

    The real question is whether or not this signals a fundamental shift in Microsoft’s patent policy.  Up until now Microsoft has used patents defensively.  A covenant not to sue is only valuable if there is a likelihood that Microsoft is going to start suing developers that use its patents.

    That’s the real question.  If Microsoft isn’t going to open up the patent litigation floodgates then this entire discussion is moot, and the entire topic can be categorized safely as FUD.  If, on the other hand, Microsoft is going to start suing developers over patent issues then every developer on the planet has a stake in the issue whether they develop Free Software or not.  Microsoft has a lot of patents, and while today Microsoft might only be interested in stemming the tide of Free Software tomorrow they might very well be interested in putting a stop to the sort of software that I write.  At some level every developer on the planet is at least potentially in competition with Microsoft.

    So what’s the real scoop.  Is Microsoft likely to actually unleash its attack lawyers, or is this just more posturing on Microsoft’s part.

  24. Eric Damron says:

    Let me be clear.  I write GPL’d code because I want to give to the community.  I want my works to be freely distributable.  Indeed if what I write is encumbered by Microsoft’s patents it can not be included in GPL’d work as it violates the license.

    Novell has been working on Mono; a dot-net compatible framework.  And we were told that Microsoft wanted this as a standard and was helping Novell with this effort.  Now I find that this agreement covers Mono!  This is not a good thing.  This tells me that Microsoft set Novell and the OSS community up to take a fall.

    If Microsoft feels that Mono violates its patents and they are serious about cooperating with the open source community they should be clear about what parts are in violation and after the OSS community has removed the offending code Microsoft should give their blessings.  Until that happens I would NOT suggest that anyone writing for Linux do so using the dot-net technologies.  I perfectly happy using Java thank you very much.

  25. Mattt says:

    Jason,

    The details of all of the patent and license issues are difficult for individual developers (and small businesses ass well to keep track of).  On a practical level, one protection that corportate entities have is "Mutually Assured Destruction" aspect of a patent action between large patent holders (think AT&T, IBM, etc…).  

    Free Software developers have enjoyed similar protection due to the belife that an attack on Linux (or SAMBA, Open Office) would be opposed by the big companies (with big patent portfolios)  that use this software.  

    What this pact does is take Novell out of the pool of "Corporate Angels" that would be around protect us from impossible to defend patent litigation.

    This is not a personal attack, but IMHO there is nothing you can do by smoothing out the language to make this pact into anything but an attack on the GPL (and similar licenses).  It could very well prevent  the redistribution of existing GPL’d code that is not covered by an agreement between these two parties.

  26. Arker says:

    Sorry, you have it backwards.

    The execution was wonderful. Not that I like it, but it was without a doubt well executed, and one can certainly admire the technical skill of the lawyers and negotiators that worked on this. Your guys just got Novell to kill itself for you, cheaply. The fact that they won’t be able to take the Free Software community down with them, as you would like, is not because of any flaw in execution on your part.

    It’s the idea itself which is objectionable, which the community will not and cannot condone, endorse, embrace, or coöperate with in any way.

    If you really want to foster innovation, spend some of that huge warchest getting the court decisions that created the whole software patent problem overturned. Bill Gates himself is, after all, on record that they kill innovation in this field.

    Short of that, if you have any patents that you think cover Free Software of any kind – disclose them so we can work around them or challenge them legally.

    Don’t expect to be able to divide us for conquest, don’t expect us to write software so you can charge someone else to use it. We aren’t stupid, and we aren’t naïve.

  27. Paul Nijenhuis says:

    Dear Jason,

    Microsoft knows that the FLOSS-community deeply distrusts the company – history has given the community all reason to do so. Microsoft cannot expect full cooperation from said community until MS makes truly meaningful moves towards the FLOSS community. moves that are NOT surrounded by 15 layers of lawyer-speak. It’s not very difficult, you know. Just two moves for starters:

    1. Where are those MS Patents, so they can be removed.

    2. Mr. Ballmer should learn to mind his language..

    Good luck.

  28. Antoine says:

    Yes please I have a comment.

    Please restrict your business activities to solving the problems of your customers and refrain entirely from attempting to control or interfere with the dissemination and application of knowledge as it will prove harmful to the continued growth of the community of which you are an integral part.

    This is not a philosophical difference but rather a historical observation which you ignore at your own peril.

    Yours Respectfully,

    Antoine

  29. Theron says:

    <quote>Also, The market capitalization of Linux-based commercial activity reaches into the billions of dollars now. Seems to me that this is more than being about "liberty," "freedom," or "open."</quote>

    There is nothing more important than protecting "Freedom" and "Liberty".  There’s the riff.  You say more than, I say less than.

    -Theron

  30. Laurent says:

    Jason, Microsoft must keep things as simple as humanly possible…

    Let me limit the scope my comment to software covered by the GPL. I’ll leave the discussion about non GPL Free Software as an exercise for the reader.

    If Microsoft has patents infringed by a software covered by the GPL, then the issue should be reported nicely to the copyright owners of the software, so that they are given a opportunity to fix the issue by replacing the affected functionality. That’s it. Nobody wants to infringe on your precious IP, believe me!

    If Microsoft has no patents infringed by a software covered by the GPL then why are we even talking about this in the first place…

    Now about the Novell covenant specifically, this kind of deal is clearly causing a violation. Just as an example of what is wrong with it just consider the difference it is introducing between commercial and non-commercial developers. By entering this kind of deal with Microsoft Novell is clearly violating the spirit if not the letter of the GPL.

    If your lawyers don’t understand that then they should go back and re-read carefully the text of the GPL. If they still don’t get it, then you should just replace them, and I’m serious. I think I’m OK if the Microsoft PR team is calling the GPL "viral" and all this BS, but the very minimal thing your legal team should have is a very firm grasp of what the GPL is.

    Finally, if Microsoft wants to really do something smart they could either make (through an irrevocable pledge) to make their patents freely available to all software projects licensed under a Free Software license.

    Or as an alternative if your company is not yet ready for such a bold move maybe Microsoft could commit to a "public and friendly" process for notification of patent infringement to free software projects. This process would give reasonable time to the copyright older to acknowledge (or contest) and resolve the issue by working around the patent (free software developers love innovation…). All this without requiring a lawsuit to be started if the infringement is acknowledged. No other strings attached. Remember that if a patent was really infringed it would really be hard to contest the fact given that the full software source is available.

    Not sure I have ever seen this last idea suggested anywhere else. Looks good when re-reading it.

    Feel free to contact me if something is not clear in what I’ve said.

    Laurent, mr.l.gauthier@gmail.com

  31. Jimbo says:

    The key issue is that the promise isn’t of much use if it doesn’t cover *everyone*, as this is the cornerstone of free and open source software. Everyone should be in the same position regarding use and distribution of software.

    Current patent promise (which is a licence, of course – no need to mince words) doesn’t do that, so it is both useless and can potentially create problems for distribution of software under GPL (section 7).

    What Microsoft needs to do is promise that anyone distributing software under an OSI approved licence isn’t going to get sued by Microsoft, much like IBM did with their 500 patents. The reasoning behind such a promise is clear: since OSI approved licences put everyone in the same position, Microsoft gets the work back under the same terms as everyone else, so things are fair.

  32. Rev Egg Plant says:

    I’m wondering exactly which patents MS is talking about not suing over.  Which patents are potentially infringed in Linux?  Which portions of Linux or Suse infringe these patents?  Which of these patents might be discredited with prior art or scenes a’ faire material?  

  33. MonpolistJustLovesACompetingFreeOfferingSureDontWannaKillItNoooooo says:

    A few months ago a Microsoft representative, whose job it was to counter OSS, told me that "if they [MS] wouldn’t deal with OSS, they would lose the battle."

    Does a monopolist that has 50 billion dolars in cache in the bank and a formidable profit margin has in interest in aiding a competing offering that can be redistributed and used free of charge? No Microsoft has an interest in killing it.

    Your corporate mouthpieces have to spin faster, Jason, way faster, undoing their lobotomy might be an idea as well, their spin is way too transparant.

  34. Al says:

    To paraphrase: "Richest software company on Earth promises not to sue individuals with no money." Excuse me if that’s not overly surprising, you’d probably be spending more on lawyers than you’d get out of the poor saps on the receiving end.

  35. Xeno says:

    Honestly, I don’t see this as helping any open source project. This moves seems like an attempt to separate SUSE, MONO and all other Novell owned products from the rest of the open source community. This is just an attempt to segragate and extort.

    I quote Benjamin FRanklin who said ‘If we do not hang together, we shall surely hang separately’. I just never thought Novell would gladly weave their own noose and wear it as a necktie.

  36. Felix says:

    Jason,

    a very common view is that, once again, Microsft is spreading FUD regarding patent violations in Linux.

    If you have a serious patent claim then the way to deal with it is not to make a vague non-specific patent agreement with 1 company representing say <5% of the installed base.

    What you would do is say to the major players: ‘You are infringing patent 123456. Either buy a license or stop contravening our patent and pay us damages’.

    Can you explain why this deal is not $100M of FUD?

  37. Vlado says:

    Jason,

    I am intrigued by your suggestion that your CEO tends to be

    an "aggressive guy". Well, is he the one the major say in

    the direction of the company or am I mistaken?

    Time and time again Microsoft has demonstrated be an

    extremely aggressive and greedy company, yet

    technologically very challenged. Your appear to

    be a part of the "softening image" effort, which seems

    only self-serving.

  38. Joshua Rodman says:

    The obvious (and necessary) things to improve about such a lawsuit statement are as follows.

    Don’t make false promises.  That is, do not tell people you’re agreeing not to do something without making it binding.  Refraining from doing something as long as you feel like is a hollow promise, only true until you feel like doing so.  Any such proclamations which aren’t binding are very close to lies.

    Protect people in a meaningful way.  Agreeing to not sue individuals who never distribute their code is meaningless.  How would you ever know they were infringing your patents if the code was never distributed?  Moreover, what would the value of such undestributable code be?

    Start with these two.  If you can’t meet at least that level, don’t make empty gestures.  They only earn you ill will.

  39. Frank says:

    Hi Jason,

    I guess you can try to spin this any way you want but unless Microsoft shows that it can be trusted nothing good will come out of this.

    Unfortunately that’s how it works. Earning trust is way harder than losing it.

    Frank (Germany)

  40. Joshua Rodman says:

    You said: Approximately 50% of Linux (common distributions) is made up of components use under non-Free Software licenses.

    Whoops, I’m sorry I commented on this blog.  I didn’t realize you were completely disingenous.

  41. Dan says:

    I don’t mean to be rude, but this whole thing just seems like a useless bunch of FUD.  A "promise not to sue individual developers" carries no weight.

    Promise or no promise, Microsoft won’t take any interest in me coding away in my basement because (a) the economic impact is negligible and (b) how will they find out?

    But if I develop some useful code and start distributing it under an open-source license, well then all of a sudden I’m an "organization", not an "individual developer," and the promise doesn’t apply to me.

    So basically, I don’t care one bit what Microsoft does or doesn’t promise to me as an "individual developer."

  42. rfunk says:

    You also say that FLOSS is a more appropriate term than Free Software.  You don’t understand that, for all practical purposes, FLOSS is the same as Free Software is the same as Open Source Software is the same as Software Libre.  The differences are a matter of emphasis and personalities, not substance.  Especially in the realm of equal rights of use and redistribution.

  43. Tom says:

    As a developer who has used Microsoft-centric products for close to fifteen years I have to say that the FUD does indeed work.  I’d love to escape the Microsoft trap but unfortunately there are few options for a small company developing decision-support type systems for vertical-market type applications.  The clients all run Windows and to develop for any other platform would be suicide.

    In the past few months I’ve been looking into porting my code over to Mono since it would allow me to support both Microsoft and Linux operating systems.  I have a subscription to MSDN, so it’s not the Visual Studio development environment that I’m resisting — it’s the never ending upgrades that are required to exist in the Microsoft world.  I can’t help but think that the dead-end trap that I find myself with regards to VB6 (Just try and use it with SQL2005) is exactly the kind of thing that I’d find myself in a few years down the road with .NET.

    Mono appeared to be a way out of the never-ending upgrade cycle.  Now I’m looking at doing apps using Java/SWT thanks to Sun’s REAL commitment to free software.

    No one likes being trapped in an unhappy marriage to Microsoft.     Microsoft’s actions over the years have produced a number of people who really dislike the company and it’s ways of doing business — but can only hope to escape the situation "next year."

  44. wes says:

    When you say "non-free" do you just mean

    "non-gpl"? Or what? *Free* software is software

    that is re-distributable (that’s the difference

    between free-as-in-beer and free-as-in-speech

    for software). Believe me, more than 50% of

    software in linux distros is freely re-distributable.

    Of course, once you move on one of your

    presumed patent infringements (so far – you’ve

    shown as much as SCO has) then the gpl will

    go into effect and your partner Novell (if not

    you) will be in a tight spot.

  45. Ben R says:

    Honestly, the best solution would be to rescind it. The vast majority of the GPL community already doesn’t trust Microsoft, and weasel-worded agreements aren’t going to change things any. (Even if it isn’t intended to sound weasely, once the word "sue" enters the picture, it’s not hard to come to that conclusion.) As things stand right now, Novell ends up looking like a traitor, Microsoft’s reputation doesn’t improve, and the whole "SuSE doesn’t contain any MS-patented code, but they promise not to sue anyway" thing looks more like a trap than anything else. to be sussinct: this helps neither you nor Novell, and alienates the people you’re (supposedly?) trying to make nice with.

    If you really want to get the GPL crowd on board, be specific, say exactly which patents are available to *GPL projects* in general, not "non-commercial developers." I’d be surprised if anyone takes you up on that, outside of for compatibility’s sake; doing so runs counter to the typical FLOSS developer’s desires. I really can’t see GPL developers falling over themselves to implement some other person’s patent. We want to make our own stuff.

  46. Larry says:

    I’ve been using and programming micros since the first trash 80.  I’ve watched microsoft go from nothing to a monopoly.  Somewhere around the mid nineties i came to realize microsoft is bad.  They cheat, they lie, they do everything they can to destroy the competition.  I will never trust them.  Yes I make my living supporting and using mostly microsoft products.  And I bad mouth them all day long.  Little by little free software is creeping through the cracks.  Someday Microsoft will loose its illegal monopoly grip and billions of dollars made by cheating.

    I wil not trust such a company no matter what they say.

  47. Rich says:

    Thanks for promising not to sue me.  My open source contributing friends and I may also agree not to sue you either.  It would be just as relevant.  This is just so much FUD.  Like others have said, if there is patent infringement, point it out and the code will be removed/altered to no longer infringe.  Simple… no lawyers needed.

  48. Tom Russell says:

    It appears from the comments by Microsoft employeesthat thethat the intent is to divide and conquer by imposing the idea of non and commercial to OSS developers.

    The GPL allows no such distinction, and anyone who tries to license their software with such a distinction, cannot use the GPL or for that matter the BSD license.

    To the OSS community this means that if Novell includes a notice of this covenant with distribution of GPLed software, they are in violation of the terms of the GPL and may be sued.

    The easiest option for the community, is to boycott OpenSUSE and the SLE products, until this anti GPL restrictive covenant is removed. I would also recommend removing and mono and anything else contributed by Novell since the new CEO became an executive.

  49. Wayne says:

    The Patent Covenant is basically useless. It provides nothing to Novell customers, nothing to Microsoft customers, and nothing to either company that is of any value. I strongly suspect people at both companies thought it would generate some positive press, and there’s nothing like free advertising.

    But that’s all.

    So I’m going to continue doing things my way, developing both commercial and non-commercial software, and ignore this deal.

    BTW – you know how you can tell a company is in trouble? They start talking about "Intellectual Property" rather than working on selling product. It’s happened before, and it will happen again.

  50. ariel says:

    Jason,

    The biggest problem Microsoft has is that almost no one’s left that trusts you anymore.   If nothing else, the way your stock has behaved in the past 6 years should tell you something.

    Q: How can you change this?

    A: With real actions. Not with hollow "promises" that contradict what your comapny is actually doing while "promising" things.

    Some quick ideas/examples/rethorical-questions:

    How about opening file formats? If you really are for open standards and interoperability, then why did you patent elements of FAT?  Why the extreme (and underhanded) opposition to ODF?

    Patent reform: most software patents are ridiculous and trivial. Microsoft in fact is a major victim of software patent attacks (Eolas etc.) – how about using your lobying power to change patent law?

    You are charging royalties from Novell for each copy of SuSE. Royalties for what?  You seem to imply that Linux is infringing on your patents, what patents? Be explicit? Why the secrecy here?

    You are "encouraging" other Linux vendors to sign similar agreements.  Don’t you realize that this sounds exactly like a bully saying "you’ve got a nice store here… woudn’t it be a pity if it catches fire?"

    3 years into "The SCO Group" fiasco it is obvious to anyone following this case that this was a pure scam.  SCO had nothing to begin with.  Why did your company fund their litigation to the tune of ~$25M ?  Why did you say that "you respect intellectual property" when there was absolutely NO intellectual property to buy from SCO?

    Why does Ballmer want to "Kill Google!" (his words, documented  in court pleadings)?

    Why does the "patent covenant" end in 5 years if it is all good and sincere intentions?

    SEC documents show that Microsoft is paying Novell $348M. That’s a nice chunk of money. If the mutual interoperability and patent-pledge deal is so great for both sides, why would so much money need to be paid? How big will Hovsepian bonus be as a result?

    Sorry if these questions hurt.  People are not stupid.

  51. rexbinary says:

    You can’t make right what you have done wrong, and now you have to live with it.

  52. harrytuttle says:

    "a patent covenant that was intended to provide non-commercial, individual open source developers with the coverage necessary for them to develop code without concern of infringing any of Microsoft’s patents."

    there’s no thing such as a "non-commercial open source developer". by definition there can’t be such a restriction on commercial use. if someone is willing to use some patent that prevents him to use his code commercially that is not open source at all.

    go read section 6 of the open source definition:

    http://opensource.org/docs/definition.php

    a non commercial patent agreement is by any honest standard a trap to prevent commercial use.

    "Our design goal is to get language in place that allows individual developers to keep developing."

    we don’t care. this would mean that every time an individual developer wants to start a business with his code he must ask for microsoft permission. there’s no guarantee that your top managers will let me develop a full blown windows replacement.

    "Approximately 50% of Linux (common distributions) is made up of components use under non-Free Software licenses."

    what the hell are you saying??? how could you think this to be true? go look at redhat and spinoffs such as centos!! the amount usually not under free software licenses is usually less then 1%, and it’s still shrinking.

    "Also, The market capitalization of Linux-based commercial activity reaches into the billions of dollars now. Seems to me that this is more than being about "liberty," "freedom," or "open.""

    seems to me that this is still about "liberty", "freedom" or "open", regardless of how much money is involved.

    "I absolutely am looking for us to find a way to work with the situation you lay out above."

    you just can’t do it with a non commercial patent agreement. there’s no way.

    "To us, software patents are useful as a mechanism to incent commercial innovation."

    for once, i agree with your boss:

    "If people had understood how patents would be granted when most of today’s ideas were invented and had taken out patents, the industry would be at a complete standstill today."

    there goes your innovation.

  53. I think that Microsoft is not trustworthy because in the past Microsoft make this partnership with Apple and stole all ideas!

    It’s MY opinion.

    Best regards,

    Renato S. Yamane

    BRAZIL

  54. D Patrick says:

    The MSuSE patent covenant is obviously a threat and invitations extended to other OSS developers amounts to nothing more than extortion. Does Microsoft really expect every FLOSS developer/ user on the planet (except those who never let the code leave the house) to pay you for unspecified IP ? That’s completely outrageous !

    If your company really wants to play nice with the OSS world (and thereby staying relevant) it’s simple;

    1) adhere to open standards (which, in many cases, you helped develop, and then turned your back on)

    2) extend your pledge to not sue, to the entire community (anything else is an implied threat) IBM did just that.

    3) develop high quality software that inter-operates by understanding how your competitors software works (the code is open, the standards published) not by creating new standards and trying to jam them down peoples throats.

    I don’t expect MS to do any of the above, as demonstrated by a long history of anti-trust, dirty dealings and the use of a giant bankroll to crush competitors, so I will continue to encourage people to reformat any partition containing Microsoft (and now Novell) code.

  55. pibarnas says:

    Ubuntu rocks! Stay free, folks!

    😉

  56. Gerard Fernandes says:

    Just exactly what you thought you’d achieve with this "patent covenant" is beyond me. Did you consider reading the GPL before embarking on this precarious legal limb?

    The GPL v2 is abundantly clear on what the rights of the authors and users of the licensed code can do with it. The GPL v3 makes it even more clear, if anything else.

    Your comment about over 50% of the components of a contemporary GNU/Linux distribution being distributed under non-free (I take this to mean not compatible with GPL free software licenses) is ambitious at best and pure conjecture at worst. I doubt you can qualify that statement with numbers.

    The FSF has distributed a percentage break-up of what components make up the GNU/Linux distribution by license and the majority (over 50%) are GPL compatible or GPL licensed software.

    Get real. You CAN NOT contribute to Free Software unless you change your main revenue stream.

    Until your main revenue stream is service-based v/s software license based, it WILL remain in your interests to build proprietary non-open, non-standards-compliant software to conserve your revenue stream.

    This is fundamentally at odds with any player in the Free/OpenSource Software arena.

    Change that first – how about the small baby-step of making IE completely open-standards compliant?

    Then people might begin to take you seriously.

  57. D Patrick says:

    The MSuSE patent covenant is obviously a threat and invitations extended to other OSS developers amounts to nothing more than extortion. Does Microsoft really expect every FLOSS developer/ user on the planet (except those who never let the code leave the house) to pay you for unspecified IP ? That’s completely outrageous !

    If your company really wants to play nice with the OSS world (and thereby staying relevant) it’s simple;

    1) adhere to open standards (which, in many cases, you helped develop, and then turned your back on)

    2) extend your pledge to not sue, to the entire community (anything else is an implied threat) IBM did just that.

    3) develop high quality software that inter-operates by understanding how your competitors software works (the code is open, the standards published) not by creating new standards and trying to jam them down peoples throats.

    I don’t expect MS to do any of the above, as demonstrated by a long history of anti-trust, dirty dealings and the use of a giant bankroll to crush competitors, so I will continue to encourage people to reformat any partition containing Microsoft (and now Novell) code.

  58. Edward Schofield says:

    However you word it, this deal makes Microsoft more dangerous to users and developers of Open Source software. By agreeing to this patent license ("covenant", if you like) Novell has turned itself into a weapon Microsoft can use to stifle healthy competition. A shrewd move for Microsoft, certainly, and a grievous loss for the rest of the world, which is benefiting tremendously from the innovation of Open Source developers, whether hobbyists or employees of companies with a strategic interest in Open Source.

    One can only hope that IBM, Sun, and as many other companies as possible act fast to unite their own patent portfolios into a sizeable enough patent pool to act as a deterrent against the spectre of lawsuits from Microsoft. The Free Software Foundation should also consider immediately terminating Novell’s right to distribute its GPL-licensed software, to signal that this patent-licensing deal is – as Bruce Perens has argued – a breach of the GPL’s terms, and to deter any other companies from making such deals, which are harmful to competition and innovation.

  59. A Thurston says:

    "Remember, I am not a lawyer – I am a business guy looking to find a workable solution for all parties."

    Well I already have a workable solution….I have not had anything to do with Microsoft, and now I will not have anything to do with Novell. Neither corporation has anything I need or want.

  60. Ricardo Carvalho says:

    Microsoft must extend this type of guarantee, without the needing of deals and money transactions, to any open source/free software project and open some documentation on proprietary file formats and protocols, without the need of any non-disclosure agreements, doing this the community, I’m not sure about Bruce Perens, will appreciate.

  61. Tim Patterson says:

    "Approximately 50% of Linux (common distributions) is made up of components use under non-Free Software licenses."

    This statement indicates that you know very little about FOSS.

    GNU/Linux with GUI’s such as KDE and Gnome plus apps are all free and open source. Even when the average person with their "common distributions" use a non-free graphics driver and a few other non-free bits they are still using over 99% free software.

    Your words demonstrate a fundamental lack of understanding of FOSS and the community.

    Quite frankly we are all sick and tired of the FUD from MS which is designed to harm the community.

    Stop playing games and either put-up or shut-up. If GNU/Linux infringes MS patents then you people should identify those patents immediately.

    Novell has destroyed themselves. It’s only a matter of time before they realize their fatal mistake. I was a long time SuSE/Novell customer. On Nov. 2nd I watched the MS/Novell webcast complete with Ballmer’s FUD. On Nov. 3rd my paid-for SuSE 10.1 and SLED 10 were replaced with Debian.

  62. Peter Garrett says:

    "If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it." – Thomas Jefferson

    Patenting *ideas* won’t work. It looks like it will, but in the end, people won’t accept it.

    "If people had understood how patents would be granted when most of today’s ideas were invented and had taken out patents, the industry would be at a complete stand-still today." – Bill Gates: (1991)

    It won’t happen this year; it won’t happen this decade – but ultimately Microsoft is on the wrong end of history.

    You can’t keep wacking everyone down, because someone else will just pop up in their place. FLOSS is not a business model – it’s a method. You make a distinction between "commercial" and "non-commercial" thinkers – absurd.

    f=ma    <– Patents Pending

    Sorry Microsoft – it was nice pickings for you while it lasted. It’s almost over. We aren’t going away, and nothing will stop us, and it has nothing to do with money or legal threats. Just get the picture: – FLOSS is not a business model, it’s a method – and your model of how all this works is disappearing… because it was never correct in the first place.

  63. Dalibor Topic says:

    My suggestion is simple: slim Microsoft down, and lose the anachronisms from the last century like Ballmer. Get back aboard the cluetrain, and continue where the *unconditional* patent covenant from last time left off.

    I mean, come on, does it make you proud to work for a company whose CEO tries to bully individual open source developers???

    That’s silly beyond belief.

  64. Dave Lane says:

    Hi Jason,

    Wow, just been reading through these comments.  Looks like nobody’s playing your game…  You might be a good guy – although I’m not convinced of that – but your employer is most certainly bad.  

    In my opinion, profit is small reward if it’s achieved only with everyone on the world with any brains despising you and everything you stand for.  It’s very gratifying to see so many rational comments pointing out some of the many many flaws in everything Microsoft is doing now, as well as reminders of some of the many despicable things Microsoft has done in the past.  As a previous poster pointed out, the scorpion is true to its nature – it can’t help itself.  It will end in tears for some (maybe 65k – by the way, Jason, are they really MS employees?  Or just contracted flunkies with high aptitudes but no MS benefits??), and joyous laughter from many.    

    Are you proud of your employer?  If you’re a good guy, Jason, you’d quit.  It would be sad to see you end up as thoroughly despised as the soulless entity you currently represent.  With disingenuous posts like this, you’re fast moving in that direction.

    Best of luck turning things around,

    Dave (who hasn’t used MS software since 1994 when he discovered Linux while, ironically, living in Seattle and hanging out with Microsofties.  Most have since quit in disgust – the rest answer to "Anekin".)

  65. Christopher Sawtell says:

    Greetings Jason,

    If Microsoft wants to make itself appear less odious to the Open Source and Free Software communities, one thing it could do, is to accept the return of unwanted and unused Windows licences and refund the money with no questions asked. This applies in particular to laptops of all kinds.

    Do you think that’s even remotely possible?

  66. Rick says:

    "please keep in mind that we are talking about individuals, not .orgs, not .com, not non-profits, not…well, not anyone other than individual non-commercial coders"

    We are keeping that in mind. Because it is that distinction that is already fundamentally anti-Open Source.

    Let’s just say, if not malice it’s certainly in indication of a total lack of interest in finding a workable "solution". Which makes this stricly a PR excercise, with no substance whatsoever. As far as I’m concerned, Microsoft is still only interested in annihilation, not co-existence, until proven otherwise.

  67. Gerard Fernandes says:

    [QUOTE]"Only customers that use SUSE have paid properly for intellectual property from Microsoft," he said. "We are willing to do a deal with Red Hat and other Linux distributors."[/QUOTE] from

    http://www.computerworld.com/action/article.do?command=viewArticleBasic&taxonomyName=software&articleId=9005171

    And now Microsoft says Linux infringes on Microsoft innovation. Ha!

    Ha! Ha!

    Ha! Ha! Ha! Ha!

    Thats pretty rich coming from someone whose OS is a bastardized mix of OS/2 and BSD.

    Ha! Ha! Ha! Ha! Ha! Ha!

    And you want people to believe your lame "input request"?

  68. John Doyle says:

    If there are patent infringements, then sue.  Every Linux distro will gladly take out what ever is proven to infringe your patent(s).  

    This agreement is the same as the mafia rolling small businesses for protection.

  69. Jussi Kukkonen says:

    "Approximately 50% of Linux (common distributions) is made up of components use under non-Free Software licenses."

    As others pointed out, this is just plain wrong. A more correct figure would be 0%-5%, depending on the distro.

    You asked for comments about the problems with IP infringements and a possible patent clearance. These points have been said before, but I’d like to sign them as well:

    * First, show that there actually is a problem: disclose some real high-profile patent discriminations. At this point I’m not convinced there’s anything serious happening.

    * Stop spouting childish things like "Only customers that use SUSE have paid properly for intellectual property from Microsoft" (Ballmer), unless you’ve got the proof on the table.

    I’ll start taking your suggestions seriously after that.

  70. 17/November/2006:

    "…Steve Ballmer Thursday declared his belief that the Linux operating system infringes on Microsoft’s intellectual property…"

    See more in:

    http://www.computerworld.com.au/index.php/id;839593139;fp;16;fpid;1

    I repeat: MICROSOFT IS NOT TRUSTWORTHY!!

    Best regards,

    Renato S. Yamane

    BRAZIL

  71. rektide says:

    "This pledge is personal to You and does not apply to the use of Your Original Work by others or to the distribution of Your Original Work by You or others."

    Software that cannot be distributed is not software worth developing.

  72. MegaloSue says:

    I almost feel sorry for Microsoft. It tried sooo much sooo hard. It tried mudslinging: "cancer", "communism" and all that. It failed. Than it tried their Get The Facts Campaign, you know,  its "facts based" compare apples to oranges, measure Microsoft in centimeters and Linux in inches and Microsoft comes out on top Microsoft sponsered, oops independent, studies. It failed. Than it tried the SCO Group litigation. You know, millions of lines of precious, sacred and holy intellectual property being stolen, millions of lines that are nowhere to be seen. It failed. And now this.. the SCO Group 2, fully enhanced and fully repackeged!

    I’m running scared, really scared.. I mean, it can’t be that there are sacred and holy Microsoft Inventions, great inventions on my server farm, can’t be. Or.. well I’d better pay up! And quickly! We all now how good the US patents system is. We all now how rock solid, innovative and non-obvious Microsoft patents are. VFAT for instance, that one alone is worth half a billion. Or using xor to do color mixing, Einstein could never have thought of that, but the Super geniuses at Microsoft lab did! What? Billions of dollars! I’ll pay my share right away!

  73. Another Comment says:

    There is a certain irony in all this. It is the immense stupidity with which Microsoft deals with Open Source. The irony being that Microsoft is blind to its own stupidity, as witnessed by the pride some executives seem to have in finally having found a loophile, I’ll correct myself, having had to spent a lot of creativity into building a bridge, to a copyright license. Microsoft seems to think that OSS is its worst enemy. Microsoft worst enemy, however, is Microsoft itself.

  74. Jarrett says:

    MSFT is quite worried about this.  I’m not.  Americas while not tiny, are not huge.  I would (as MSFT) be far more worried about EMEA, and locally Sherman.  While this kind of thing may fly for a bit here.  It definitely won’t in the EU.  And China, will frankly, laugh this off.  Emerging 3rd world making transitions upward will need the leverage that open source gives them on price point for operating cost.

    Further, I have this feeling that if MSFT is perceived as strong arming companies, or even worse, individuals using whatever patent portfolio collection…

    We’ve seen this as a trial run with SCO v Universe (ahem, IBM), which is getting chucked in court.  Along with quite a few other run-ups.  Which so far have been settled out of court to avoid the  unending litigation that has plagued MSFT in the last few years.  Under the current (err upcoming) congress, Sherman’s little shoe, which was put away a while ago, may end up really dropping this time, real hard on MSFT.

    And we all know what comes around the corner with covenants like this: "us or them. SUE THEM".  Quite frankly, the motive to get congressional hearings started is quite high just upon hearing the rumblings of this.  I’ll wait a little longer on sending my letter flying to my Senator(s) and Rep.  However, I don’t think I’ll be waiting long.

  75. Steve "Monky" Boy says:

    Well, the long anticipated patent attack has finally begun. However, it seems some people in the higher ranks of Microsoft, seem to have lost their sense of judgement, have they been hit by a flying chair, or did the act of throwing stairs "cut of their oxygen supply?"

    The 800 lb gorilla is panicing. I sense an opurtunity for the world to deal with Microsoft, and to deal with Microsoft in a decisive way: kill it. The gorilla is wounded, I smell blood.

  76. Decimate MS's patent Portfolio says:

    I think it might be a nice idea to setup a comunity effort to eliminate Microsoft only competitive tool agains OSS: decimate MS’s patent portfolio. A sizable effort, and doable

    The chances of succedding are high. Microsoft is not an inivator, a large part of its R&D budget goes to the marketing department. Beacuse of this and the sorry state of the US patent system, Microsoft’s patents are likely to be obvious, non-inventive and covered by prior art.

    Now, set up a web site having a database of Microsoft patents, prioritize these, collect prior art and file patent nullification requests to the USPTO. Of course, the website will contain al the material that is needed to properly follow the required procedure.

    That would be fun.

    (Note to MonkeyBoy: did you, egolomaniac that you are, really think we would let this happen to us? We are fighting you MonkeyBoy, we will step up the pace. We will win, we will destroy you)

  77. Is Jason Afraid? says:

    Is jason afraid of posting the news that Microsoft is going to be turned into a dead corpse? Why Jason? You could have a first! It is going to happen Jason. Not tomorrow.. Micosoft’s death will be slow and painful to Microsoft. To the rest of the world it will be a great feast.  The world at large will dance and chear on its grave.

    Is Jason afraid of posting the news that Microsoft’s patent portfolio is going to be atrited? Don’t be afraid Jason! It is going to happen!  Your portfolio of bogus patents will be decimated!

    The world is going to finish Microsoft off, Jason!  Linux has it by the throat and it is cuting of its oxygen supply, Jason. Nely Smitt Kroes has Microsoft by its testicels and is squezing and turning them until the living daylight goes out of Microsoft, Jason!

    Well Jason, what you so frequently have done to your competetitors is now going to be done to you! What goes around, comes around, Jason!

    Would you be so kind as to forward this to that horsedildo, a rectal one that is, wil make him quite a bit more pretier, by the way, of yours? What was his name again.. let me think.. that ape that throws chairs around all day..  Ah, MonkeyBoy, that was his name. Thnx.

  78. I’m a little disappointed at the agressive tone of some of the replies, but I think the fact that the overwhelming majority of the comments simply point out the obvious difficulties Microsoft has take upon itself speaks volumes for how clear the situation really is. I don’t think for a moment that the lawyers & marketeers (who seem to be the two major forces within microsoft, unfortunately) weren’t aware of all the above.

    One thing I think the lawyers were almost certainly very aware of but hasn’t received much attention in the media is that in Europe (where the majority of SuSE customers live, it being of German origin) any implementation of a patent that’s just for personal use is completely exempt from the patent holder’s lawsuits anyway. That means that (at least in europe – possibly elsewhere too) the whole "we won’t sue hobbyists" thing is essentially equivalent to "we won’t sue people we have not legal standing to sue" anyway.

    I’ve often said "I don’t hate Microsoft, just pretty much everything they do" If you guys started playing the game by the rules, start competing by producing a good product at a fair price, start behaving in a way that demonstrates you can be trusted further than you can be spat (what’s that 3Com quote? "You made a fatal mistake, you trusted us"?) you might be surprised how much grace you receive. Microsoft have huge numbers of very talented programmers and an enormous amount of money. Just imagine what you guys could produce if your aim was demonstrably to make the best product(s) out there, rather than arrange for it to be the only product out there?

    At the risk of sounding like an echo, I thought I’d just say again: any patent license (or non-enforcement covenant, they’re effectively the same thing) that doesn’t apply to direct and indirect recipients of the code in question is completely incompatible with the GPL and at least the majority of other Free / Open Source licenses. Any agreement that is time limited (5 years really isn’t all that long, I’ve seen linux machines with longer uptimes!) is similarly useless. Any agreement that can be unilaterally withdrawn by Microsoft is near worthless. Any agreement that purports to give protection against patents without those patents being identified has to be treated at least with suspicion that there are no relevant patents meaning the agreement is again, valueless.

    Cheers & God bless

       Sam "SammyTheSnake" Penny

  79. I feel Jason should give us an explanation about what he thinks the word "Free" in "Free Software" means when he says that most distributions have more than 50% non-free software.

    Then  we might be able to disabuse him of his misconceptions. Jason, care to explain why your definition of "free" is different from the Free Software Foundation’s or Debian’s?

  80. Carol Anne says:

    I find it extremely curious that all these valid concerns about the predatory practices of Microsoft in the past and identification of the deception Microsoft seems to be engaging in with respect to this "deal," are all now being systematically ignored.  The heat too hot here for Jason to respond with a better offer?  

  81. Florian Haas says:

    I am personally opposed to deal with Microsoft, simply because you guys cannot be trusted. But let’s put that aside and simply look at the deal you made with Novell:

    "please keep in mind that we are talking about individuals, not .orgs, not .com, not non-profits, not…well, not anyone other than individual non-commercial coders"

    Can you name me one program in any linux-distribution which has been written by one single developer? I certainly can’t. 99% of all Free software is written in a project, and the covenant does not apply to projects. Your promise not to sue is worthless, as it covers almost nobody.

  82. Nukem says:

    Jason,

    I see a common thread here…  Do you?? Or are you blind?

    No one trusts Microsoft.. Can you believe that? What an eye opener.

    Hey boy’s this is a mighty big game.  You’re never going to win by extortion.  Start playing fair.  Join IBM and support the Open Source Community.  It will be a win win situation and nobody looses.  Keep you patents, show some good faith and share.   Oh, and knock off the FUD.

    A million Open Source programmers can’t be wrong..

    Well Mr. Ballmer what’s it going to be?

  83. Morten Mertner says:

    I am surprised that there are only negative comments on the deal when viewed in relation to Novell’s involvement in Mono. Would a "no sue" deal not protect SuSE owners (aka developers) working on WCF or similar API ports for Mono?

    What I would like to see is some real substantive commitment to cooperation, for instance, by a formal cooperation to bring a working .NET runtime to Linux and OSX. Microsoft must realize that this will only be feasible in a "free software" context (e.g. building upon a runtime that is not burdened by absurd license restrictions, software patents and similar).

    I’m surprised that Microsoft is not eager to support these ports, as .NET development strengthens it’s hold on developers and associated tools. But perhaps Java is not sufficient of a threat for Microsoft to consider such a move, which would be sad.

  84. Paul Leopardi says:

    The openSUSE.org covenant is important. The conditions of this covenant in my opinion come close to violating the letter of GPLv2, specifically Section 7. Is nobody working on revising it?

  85. K Cartlidge says:

    Ultimately it doesn’t matter what the deal says for two reasons.

    Firstly, however honest (or otherwise) the intentions of Microsoft few (if any) open source developers of standing will believe them or

    trust them. Rightly or wrongly that is the simple truth caused by years of bad blood and history.

    Secondly Microsoft is a company and by law it’s primary duty is to generate value for it’s shareholders. Open source software is in direct competition with proprietary software and so is fundamentally incompatible with Microsoft in it’s current form. I say in it’s current form simply because it’s ideology does not allow it to see the longer-term advantages that companies such as IBM have discovered, especially as the other companies long-term perspectives were prompted by their opposition to Microsoft, which obviously Microsoft does not share.

    In essence therefore the entire discussion is pointless. Constructive conversation presupposes that each party can find a compromise and thus meet at a central point. In this case, neither party is able to do that so no mutually amicable solution is possible.

    The GPL passes all rights onto recipients. Any restrictions downstream invalidate the GPL and render those adding the restrictions in violation of the GPL, invalidating their own license.

    The whole purpose of this deal is straightforward. Make a deal with a distributor and the open source community kill the distributor off for you. That’s why they wanted Red Hat to sign up, as Microsoft are astute enough to realise that whoever ‘joins’ with them will be shunned by the idealists and may have their very product pulled from under them by GPL 2 or 3.

    It’s a clever ploy and appears to be working. I may be paranoid, but  given Microsoft’s past history I’m just being realistic. It’s a shame really as I develop in C# on Windows for a living and whilst I detest Windows and Visual Studio (why do people like something so bloated and buggy?) the actual language is one of Microsoft’s better efforts – even though it was designed mostly by a poached Borland guy! From my point of view Mono’s a great idea, but know there’s no point as it will end up SUSE only.

    BTW – C#/.Net is great for desktop stuff, but after years of web development in many languages I have to say it’s without a doubt the absolute worst possible choice for web work.

  86. RMXZ says:

    Make it clear exactly what you think is infringing.

    Otherwise no matter how you tweak the wording, it still looks like a "if you don’t pay our partner protection money we might light a fire on your company like SCO did — look how much that cost IBM".

    Simply list the copyrighted content or the patents and point to where the infringing code is – and then we can decide if we want to license them from your or Novell or avoid them (probably by buying Windows instead).

  87. PDBL says:

    Software patents are a tax on innovation.

    By patenting trivial things and mathematical algorythms you (big companies) want to prevent innovative SMEs to gain market shares.

    Software patents are still invalid in Europe and this threat to human progress will stop worldwilde someday. I hope that your cynical agreement will help the FFII, Rocard and the like to definitively stop the EPO on its road to impose software patents tax to the European citizens and SMEs.

    I have no respect at all for people using patents on progression bar or one click purchase in order to disturb free competiton.

  88. Jez says:

    Initially I was quite suprised and pleased by the joint Novell / Microsoft announcement. Anything that helps and furthers interoperability between Linux and MS products was, to my mind, a good thing. I could even, in my own mind, justify the cross licensing payments. I do not pretend that the exchange of monies was anything to do with patent protections as I do not and cannot see any infringement by (F)OSS upon valid (i.e. non trivial and non revokable) MS patents. That just smacked of MS PR and a bit of FUD.

    The gloss went from my feelings when your CEO started his usual high profile FUDfest again. SB has all the charisma and sensitivity of a used car salesman (at least the "Lemon Law" would apply to that product!). With one seemingly intended outburst he undid any good feelings that I’d had.

    To reiterate many of the above comments; show where the offending "infringed" code is – as in "Put up or shut up".

    IANAL but, I would also, to some extent, question the ability of MS to actually prosecute any infringement at this time purely because, if MS has known of these alleged infringements for a period of time (given the number of similar statements by SB over the years, that would seem to be the case) and not sued before then the lack of defense of those patents when the alleged infringement was first known should nullify any attempt to do so now.

    I would still like to think that the joint venture will benefit the whole (F)OSS community and that any product resulting would be unencumbered by proprietary terms – if the venture involves work on patented Novell and MS products (NetWare and ActiveServer for instance) then I can understand that there may (?) be some reluctance to do so but, as anything that aids interoperability that can be GPL’d would, at least, demonstrate some element of sea-change on Microsoft’s part.

    In the meantime could someone please, please, gag SB.

  89. C. Nelson says:

    Probably the only way to do it is to go through the patents – to actually go through the patents and say – here are 25 patents, or here are 50 patents, or here are 500 patents – or whatever – however many — and then explicitly say — these are OK for GPL.

    One thing I’ve learned from reading in the blogosphere about this that I find interesting is the concept of dual, even triple- or quad- licensing. In other words, if you want to use our code in closed source, for-profit, proprietary software products, and protect them via trade secrets law, and not contribute your changes back to us, then you can buy or license our code from us for a reasonable amount of money — however, if you want the very same code for free, you can’t lock it up, you have to distribute the source, you have to give your derivative works back to us (the community), etc… In other words, if you don’t like viral, then you can give us money and it won’t be viral anymore. Or something like that.

    What I’m trying to say in this train of thought is that there are pros and cons, in many people’s minds, about the GPL. And individual’s or an organization’s or a corporation’s choice to use the GPL has an up side (free code) and a down side (open source, can’t use trade secrets law, changes the patent picutre, have to contribute code back). It’s also not a BSD license, which is somewhat sort-of closer to public domain.

    There’s no reason for a carte blance type thing.  You just go through your patents, identify 25 or 50 or 200 or whatever – however many – that fit the right criteria. What criteria? Patents that you would not mind people using in GPL stuff. It may only represent 1% of your portfolio. Maybe even less than that – that’s not important – it this process – go through, identify which ones you don’t mind for GPL only, and then say these are ok for GPL. Or we don’t care if you use them for GPL. Because, remember — the GPL has pros and cons. So it’s not like you’re really giving it away – it’s more like you’re getting specific performance instead of money.

    That’s the one way – simply go through the patents, and identify which ones you don’t mind being used for the GPL — which is not all milk and honey and the promised land but requires real  sacrifices from anyone who uses it. Trade secrets law may not be perfect, but for some companies, it’s all they got…

    In light of the "agreement" that everyone is talking about, that is sort of a catch-22, isn’t it?

    You can’t really extend it out if it’s not specific – you’ve got this one option of saying "promise extends to all of GPL" — which is what some folks are implying is necessary if you’re going to give a promise like that to Novell. But the promise to Novell appears to be "any patent" (correct me if I’m wrong) – so Microsoft is leary of extending out  "any patent" for "any GPL".  Especially if you’ve got Zunes, and Xboxes, and so forth going on, which have little to do with an enterprise operating system. Novell doesn’t "do" mp3 players, right? Nor does Red Hat. Microsoft diversifies, so they can’t carte blanche everything like that. Makes sense to me.

    There must be a way to clarify which types of patents "might" apply to something like the "agreement". Or, perhaps, clarify it, sort of after the fact, so you can extend it out to everyone. This is just for the gplv3 compliance, thing, but that’s another issue entirely. It’s really too soon to tell anyway.

    Irrespective of the gplv3, there is probably no reason that Microsoft couldn’t go through their patent portfolio and pick out those patents, however many, that they would be willing to promise to not enforce for GPL software (GPL only) — because, remember, GPL is a two-way street, so it’s OK — it should be ok with shareholders as well.  That would be my suggestion. Just select certain patents. Or somehow find a way to classify which patents apply to GPL "computers", or "PCs", and which patents have to do with other stuff, diversified stuff, Xboxes, etc… that need protecting.

    It’s a complicated situation, but I think the most important thing to remember is that the GPL requires sacrifices from both sides, so it’s not like you’re giving all your IP out the public domain for anyone to use. You could even suggest for the gplv3, to clarify the situation,  so that people using GPL couldn’t take advantage of a company who extends patent promises. I don’t think anyone wants it to turn into a "carte blanche" situation (well, at least the good guys don’t). There’s got to be a way to work this.

  90. Advisor says:

    An advise to MickeySoft.

    You have to spin faster, lie and cheat way harder. Your Department for Corporate Propaganda, has to increase its workforce.  You can find employees that fit nicely in the team in the wastebaskets of the operation rooms of the nation’s hospitals.

    You have to erect new Corporate Propaganda Whores. The old like the Yankee Group and Citezens Against Government Waste have worn out.

    You have to make way clearer how much and hard you want to "cooperate" with the Open Source world. How desperately Mickeysoft want "interoptability".

    Also the guy that so much resembles the  decaying remains of a deceased pig, always forget his name, monkey something, has to brag way faster about Mickeysoft’s upcoming product. If I where Microsoft I would start developing a plan to force Longhorn upon my users. Bribing a few more senators might work.

    Oh, by the way, Jason, congratulations! This "please give us input on how we can kill you more effectively" was a huge succes! How could it have failed Jason? Oh no, the world has had to deal with the verbal excrement of Mickeysoft’s corporate tumors with a throat for decades. How come the world didn’t swallow your verbal excrement Jason? Next time spin faster, way faster, lie way harder Jason.

  91. MoreLies says:

    Microsoft at its finest.. lies spin, lies more lies, spin and more spin.

    Working for this company defines you as a piece of dirt, Jason, yes you Jason, Oh, wait, i’ll take that back, comparing you to dirt is an insult to tapeworm excrement. My apologigies to tapeworms.

  92. This excuse for a company has the propaganda cancer in every single nerve cell and vein. It is one big cancer. Remove the tumors and nothing is left. Not even a skeleton. Just a void.

    If Microsoft has to be credited for inventing it is that it took propganda to the next level.

    And Microsoft will receive chemotherapy, or it will die of its self infested tumors. Either way, Microsoft is doomed.

    The fun part is that Microsoft is not aware it is killing itself. It really requires to be an MBA to be that stupid and blind. And Microsoft is full of MBA’s.

  93. MoreLies says:

    Would Jason be fair enough to include the url?

  94. Steve vent's his rectum again says:

    http://blogs.zdnet.com/microsoft/?p=265

    More stink from Steve’s rectum.

    You are getting desprate, aren’t you, Ballmer? Rest asured Stevey Boy, MickeyScum will be destroyed, and you will be given the oppurtunity to pursue a different, or is it, carreer, as a horsedildo, a rectal one that is.

  95. Youri says:

    Another marvel of Microsoft corporate disinformation:

    ‘Microsoft’s Accusations Against Google Don’t Impress Copyright Gurus’: http://www.law.com/jsp/article.jsp?id=1173175410197

    Oh the joy of wittnessing Microsoft commit corporate suicide.

  96. http://informationweek.com/blog/main/archives/2007/03/ballmer_on_goog.html says:

    You don’t need to worry, Balmer, you don’t need be awake at night, you don’t have to have any doubts about Microsofts’s future: it will be destroyed.