Bradley Kuhn rips Microsoft's patent pledge to shreds. But should we be surprised?

Bradley Kuhn rips Microsoft's patent pledge to shreds. But should we be surprised?

Summary: Yesterday, in reponse to Microsoft’s Patent Pledge for Non-Compensated Developers (which was an integral part of last week's pact between the software giant and Novell), Software Freedom Law Center CTO Bradley Kuhn issued a tersely worded warning to the Free and Open Source Software (FOSS) community that the pledge is of "little value.

SHARE:
TOPICS: Patents
17

Yesterday, in reponse to Microsoft’s Patent Pledge for Non-Compensated Developers (which was an integral part of last week's pact between the software giant and Novell), Software Freedom Law Center CTO Bradley Kuhn issued a tersely worded warning to the Free and Open Source Software (FOSS) community that the pledge is of "little value." Wrote Kuhn of the pledge's contradictions to FOSS values:

A careful examination of Microsoft's Patent Pledge for Non-Compensated Developers reveals that it has little value. The patent covenant only applies to software that you develop at home and keep for yourself; the promises don't extend to others when you distribute. You cannot pass the rights to your downstream recipients, even to the maintainers of larger projects on which your contribution is built.....Further, to qualify for the pledge, a developer must remain unpaid for her work. Experience has shown that many FOSS developers eventually expand their work into for-profit consulting. Others are hired by companies that allow or encourage Free Software development on company time. In either situation, Microsoft's patent pledge is voided for that developer.....Even if the patent pledge were to have some use aside from these problems, our community simply could not rely on it, since Microsoft has explicitly reserved the right to change its terms at any time in the future. A developer relying on the pledge could wake up any day to find it revoked. She'd have to cease development on her non-commercial and (mostly) non-distributable modifications that were previously subject to the covenant.

Although I'm not a lawyer, Microsoft's other patent pledge for individual contributors to openSUSE.org (which appears on the same page as the aforementioned pledge) also reads like a lesson on why patents trump copyrights, particularly with respect to FOSS. If I understand the language correctly, it basically says that FOSS developers can contribute to openSUSE.org and only openSUSE.org without fear of reprisal (eg: a patent infringement suit) from Microsoft provided that Novell's SUSE-based products are the ultimate beneficiaries. openSUSE.org, an open source project that's sponsored by Novell (but not owned by it) and a project from which Novell's SUSE-based products get their code, is not empowered to redistribute that code under any license to anybody. According to the pledge (I've boldfaced the important part):

Microsoft hereby covenants not to assert Microsoft Patents against each Individual Contributor (also referred to as “You”) for Your distribution of Your personally authored original work (“Original Work”) directly to openSUSE.org, but only if, and to the extent, (i) Your Original Work becomes part of SUSE Linux, SUSE Linux Enterprise Desktop or SUSE Linux Enterprise Server, and (ii) You ensure that as a result of Your contribution, openSUSE.org, and all further recipients of Your Original Work, do not receive any licenses, covenants or any other rights under any Microsoft intellectual property. This pledge is personal to You and does not apply to any use or distribution of Your Original Work by others.

One possible interpretation of the bolded text (any of you lawyers out there, please feel free to chime in), is that Microsoft promises not to sue FOSS developers so long as their contributions are made to openSUSE.org and those contributions are not accompanied by any license (eg:the GPL). The "Microsoft intellectual property" part comes several commas after the word license which technically means you could put a period after the word license, therefore causing the word license to not necessarily be specific to "Microsoft intellectual property." 

Another interpretation, one that the lawyers I've consulted say is more likely, is that it's saying Microsoft won't sue FOSS developers so long as their contributions are made to openSUSE.org and those contributions are not accompanied by a Microsoft license, Microsoft covenant, or other Microsoft right. But one of the lawyers I spoke with also agrees that such language doesn't make much sense to put here since the implication is that a FOSS developer might already have a  Microsoft license to transfer.  Such sublicensability terms are usually codified into the license (whatever license a FOSS developer might have), and not in an orthoganal covenant. 

Despite its ambiguity, I think it's pretty clear that, pursuant to the hall pass Microsoft has given to Novell, openSUSE.org can take receipt of code from FOSS developers, but that if that code "reads" on a Microsoft patent, the terms under which Microsoft won't sue Novell for eventually taking receipt of that code (from openSUSE.org) are between Microsoft and Novell and no one else. In other words, if a FOSS developer (or any developer for that matter) has code (that reads on a Microsoft patent) to contribute to anyone (be it openSUSE.org or otherwise), and there's a pre-existing and relevant Microsoft license, Microsoft covenant, or Microsoft right connected with that code, that license, covenant, or right is not transferrable. It pretty much goes without saying that if some code reads on a Microsoft patent, that it can't be licensed or sublicensed to anybody under any license (GPL or otherwise) without Microsoft's consent.  It essentially prevents a FOSS developer from issuing any sort of transferrable right to openSUSE.org that openSUSE.org can go out and transfer to someone else, other than Novell.

The point is that the proviso constitutes friction to the sort of free flow of intellectual property that open source is all about. Even if it's Microsoft specific (since Microsoft seems to be saying, we have a relevant patent here), it's the same friction. Sub-licensability is a key tenant of open source. The minute each developer (a) can't get a license from other developers, (b) can't issue a license, or (c) must execute a distinctly separate license agreement with an existing intellectual property (IP) owner (eg: Microsoft) -- a requirement known as privity -- the IP in question (be it copyright or patent) is inherently not sub-licensable and the code in question stops being open source. If Microsoft has enforceable patents, then those patents trump the fundamentals of open source since open source is invariably based on copyrights. Copyrights go with specific source code which, when a patent is concerned, is nothing more than an implementation of that patent. Under current US patent law, patent holders get to decide who is allowed to implement their patents, when, and how. 

Over on Groklaw Pamela Jones made the following characterization of Microsoft's patent pledge based on Kuhn's warning:

...this is Microsoft language designed to kill the GPL and the FOSS development method, whether consciously or unconsciously. Why? Because if you can't share your software with anyone for fear of a patent infringement lawsuit, in what sense is it GPL? How are you part of a community, all building a common pool of code anyone can freely use?...

But quite frankly, this has always been the case with patents on business process (aka: software).

In today's world, you want a patent for one or more of three reasons. One is defensive. If you get the patent before someone else, no one can sue you for patent infringement. Only you can sue them. A second reason is offensive. To the extent you've been able to monetize a patent, the threat of suing others is what prevents them from also monetizing your patent (thus, you get a protected market). The third reason, coming up more and more these days, is defensive-with-a-twist: it's to protect others from getting sued. This is normally done through covenants and the idea is that you allow others to infringe [sic] on your patent while offering them a defensive perimeter that prevents them from getting sued. In an open source context, if a vendor has a patent and gives developers carte blanche to develop their own implementations of it, someone else can't sue them.  Only the legitimate patent holder can sue them. Covenants generally promise that the patent holder won't sue, but sometimes, there are strings attached. For example, the covenant may only be available to open source developers. Or, it may only be available to open source developers working with a specific license.

As far as patents are concerned, as would be the case with just about any commercial software provider, Microsoft's commercial software model is for the most part associated with offensive usage. In this case, it's offering a bit of defense in the event that FOSS developers contribute code that can ultimately only flow to the company that Microsoft has issued a hall pass to: Novell. Other than that, it appears to be business as usual for a commercial software company: no one, FOSS developers or otherwise, has the right to distribute implementations of Microsoft's patents without Microsoft's say-so. Does it kill open source and FOSS development? With respect to developing implementations that read on Microsoft's patent it does. But, unless a patent non-assertion covenant has been issued, the same is true of most other patents. Not only is FOSS development prevented. So too is commercial development. Could this stifle the flow of code into openSUSE.org? There's no doubt that it could. Does openSUSE.org represent all of open source? No.

Now, is this FUD-mongering or does Microsoft really have patents that apply? That's a completely different question. Can someone -- perhaps another vendor with a large patent portfolio -- throw a wrench in the works? You betcha. Part II is next.

Topic: Patents

Kick off your day with ZDNet's daily email newsletter. It's the freshest tech news and opinion, served hot. Get it.

Talkback

17 comments
Log in or register to join the discussion
  • FSF said there were violations.

    In fact they hired professionals to dig tghem out and they found 284 *possible* violations.

    Now, only a complete fool would thing that ALL 284 are without merit.
    No_Ax_to_Grind
    • no axe

      only you believe that there 284 violation its only FUD The nurse is comming with your medication.

      Just breath slowly its all gonna be over soon
      Quebec-french
      • So FSF was lying?

        They created their own FUD to help Microsoft?
        No_Ax_to_Grind
        • It would help

          if you could at least get your FUD straight.

          The FSF never said anything of the sort. It was someone else, I'll leave it to your (laugh!) research skills to figure out who.
          Yagotta B. Kidding
          • Duh!

            "The FSF never said anything of the sort. It was someone else..."

            Yes, the people they hired to do the review. Honestly, I thought you were capable of grasping it. Obviously my mistake in giving you far too much credit.
            No_Ax_to_Grind
      • Well? Is FSF lying scum or not?

        Come on big boy, lets hear it...
        No_Ax_to_Grind
        • It was not the Free Software Foundation

          The FSF is Richard Stallman and that crew... Do you Reallly think RMS would allow anything that they touch to be tainted with patents.

          Try again! It was not the FSF nor anyone hired by the FSF. I'll give you a hint though- the organization that did the study is selling developer insurance.
          Edward Meyers
    • Every program in the last 17 years has violations

      [i]In fact they hired professionals to dig tghem out and they found 284 *possible* violations.[/i]

      Yawn. Since the USPTO is issuing patents for basic algorithms that Donald Knuth documented over 30 years ago, this isn't a shock.

      Given your emotional attachment to Microsoft, though, you might want to worry about the patents that [b]Microsoft[/b] is infringing. There must be thousands, just according to the odds. Now consider that any one of those patentholders could get injunctive relief in the form of a recall of all Microsoft implementations of those patents ...
      Yagotta B. Kidding
      • When you find one, go for it.

        "you might want to worry about the patents that Microsoft is infringing..." Pffttt...
        No_Ax_to_Grind
        • So you believe Microsoft has absolutely NO infringing IP?

          First you should consider infringing IP that doesn't involve FOSS at all. Remember Eolas and z4? How much more of that could come up?

          And secondly, why did Microsoft pay Novell [b]over 3 times[/b] the amount Novell gave to Microsoft? Hush money, maybe?
          Tony Agudo
    • [Mr.] Happy, you are wrong!!

      As was pointed out many times when you made this nonsensical assertion before:

      OSRM paid Dan Ravicher of PubPat to do the study.

      http://www.cio-today.com/story.xhtml?story_id=26129

      Attorney Dan Ravicher, founder and executive director of the Public Patent Foundation, carried out the analysis for Open Source Risk Management (OSRM), which sells insurance to organizations using or selling Linux to protect them against intellectual-property lawsuits.
      -----

      A link to Dan's comments on the study and its significance completely refutes the nonsense you are spewing:

      http://www.eweek.com/article2/0,1759,1729908,00.asp

      But Ravicher said Ballmer misinterpreted his study's findings. "He misconstrues the point of the OSRM study, which found that Linux potentially, not definitely, infringes 283 untested patents, while not infringing a single court-validated patent."
      ----------

      So go ahead and repeat yourself again as if you could make your silly baseless claims true by doing so. It's always fun to see you getting madder as posters point out your mistakes. That's why we're always happy that you are wrong.
      Still Lynn
  • Every open source supporter is going to

    say that there is nothing to worry about. If they didn't try to support their poosition corps are going to move to Novell. (Well, they are going to move anyhow but you know what I mean.)
    No_Ax_to_Grind
  • Say What?

    Let me get back to you and we'll set up a meeting so my lawyers can talk to your lawyers and we can do lunch.
    jdyagi
  • Novell has been drinking Microsoft Cool-Aid

    One point that they article misses is that Novell has just shot themselves in the foot. Developers (and users) are starting to migrate from SUSE over this issue.

    And I suspect that Microsoft was counting on this. Anyone who deals with Microsoft is regarded as a traitor in the community. Novell is one of the few companies (besides IBM) with a patent pool big enough to cause MS trouble, and they've not only been neutralized, their future revenues (based on Linux) have been damaged.

    So I don't think it was really about the Patents, instead it was about how much damage Microsoft could do to Linux.
    The Mad Hatter
    • Spot on

      Microsoft are for Microsoft. They simply never enter into deals which are not going to benefit them. Business is war. One of the reasons I dislike Microsoft so much, is that they fight a dirty war. Are they good at it? Oh yes. And the collateral damage are end user rights and the will to develop collaborative software. Just like the War on Terror is a nonsencical notion, so is Microsoft's War on Open Source. You cannot defeat a good idea, no matter how dirty you fight.
      whisperycat
    • Exactly

      "Developers (and users) are starting to migrate from SUSE over this issue."

      Exactly right.

      On Nov. 2nd the press conference was held. On Nov. 3rd SuSE/SLED was removed from all of my systems and server and replaced with Debian.

      Bye-Bye Novell...
      Tim Patterson
  • How do you know M$ isn't infringing patents?

    It's not like anyone can get their hands on the code to find out.

    In order to get damages for an infringement, the patent must be defended when one learns of an infringement within a reasonable time frame. Linux and it's source has been freely available for over what, 15 years now? I would say it's reasonable to assume that if a patent holder let the infringement go on this long without complaint, they aren't worried about protecting their IP and a judge would throw it out? Right?
    Henaway