The key piece, to me, is the fact that there is no expiration date on those vouchers. And don’t forget that the vouchers are for support and updates. Updates mean software code. So I understand this to mean that Microsoft is conveying to customers the means to obtain GPLv3 code, if a voucher is turned in after the new license is in effect. Is this delicious or what?
I don’t know which lawyer wrote the vouchers, but I’m guessing somewhere in Redmond, there is a lawyer beating his head against the wall right about now.
The vast majority of respondents, some 54 percent, indicate that they would prefer to increase their use of Linux — and decrease their us of Windows, as a result of Microsoft’s patent pleadings.
It almost seems as though they do this for spite. Admittedly, this poll could be biased because the readership has certain inclinations. Regardless, this voice is echoed elsewhere, even in major publications such as InformationWeek.
Customers, meantime, hate getting pulled into this game. Microsoft is “out to strong-arm other companies,” says Eric Simon, VP of IT at Brookfield Homes, a California-based home builder that uses both Windows and Linux. “Shame on Microsoft for trying to squelch innovation,” says an IT director who requested anonymity.
The FUD campaigns may have gone too far this time. There were not subtle and they earned Microsoft a muchly-deserved “bully” status. Rather than be victorious, the attacker exposed a weakness. It will have many reasons to regret this too, as I’ll show in the next post. The malicious plan essentially backfired.
Essentially, the GPLv2 requires you to pass on the rights to use, modify and redistribute the software you receive without imposing further restrictions. It can be argued that Microsoft would also need to grant any necessary rights to its "IP" in order to make this so.
The article discusses four doctrines of implied license, legal estoppel, equitable estoppel, conduct and acquiescence. Regarding the first, legal estoppel, which just means you can’t grant a legal right and then snatch it away, the article says:
In the hypothetical case above, the accused infringer has an argument that the elements of legal estoppel are met. Through the GPL, the patentee has granted the accused infringer the right to make and distribute the invention. While usage rights may not be explicitly granted under the GPL, it can be argued they are necessary to effectively practice the rights that have been granted. Both the right to practice the invention (through the GPL) and an attempt to derogate that right (by claiming the licensee has no right to use the licensed invention) are present.
Satisfying the legal estoppel theory also requires showing that the licensor received valuable consideration for the license. One possible item of consideration received under the GPL is the reciprocity agreement — the promise by the licensee to license any further distribution of the program and any works based on it under the terms of the GPL. In Wang, the proliferation of the plaintiff’s technology and adoption of it as an industry standard were enough to form consideration under legal estoppel. The licensee may be able to argue that the benefits any licensor receives from agreeing to comploy with the licensee form sufficient valuable consideration to imply a license by legal estoppel.
Let’s imagine, for a moment, that Novell, instead of being a GPL bumbler, turned out to be a Ninja. Then the fact that Microsoft was persuaded to distribute vouchers for SUSE, which is distributed under the GPL, might be a way to tie their hands. It could be argued, as I understand the article to be indicating, that you could argue that Microsoft can’t help distribute SUSE and then sue over folks using it. N’est-ce pas? And that would be entirely separate from any patent peace nonsense. And Novell helping Microsoft make Open XML a standard might, in Ninja land, be a way to force it to lose its patent rights.
This sorta reminds me of the argument that SCO couldn’t distribute under the GPL and then claim infringement, I can’t believe Microsoft fell for it again (assuming they thought up the SCO debacle, as it has seemed). I suppose MS could argue they never accepted the terms of the GPL, but that means they willfully committed 40,000+ instances of copyright infringement against each of the hundreds (thousands, likely) of the authors of the code in SUSE.
Let’s remind ourselves that the “be very afraid tours” can be effective. I have just heard from a friend whose company mentioned the “balance-sheet liability” remark from Steve Ballmer and then weighed it as a factor in decision making. Matt Asay opines that this tactic of intimidation may only be the beginning.
Apparently, as my friend suggested, the apple doesn’t fall far from the tree. Maybe Gates, when he finally leaves, can set up a patent troll system of his own.
This would be unsurprising. For a long time I have argued that Bill Gates’ charity endeavours will be used for political manipulations around the world. He has already been able to change laws on DRM circumvention outside the United States, maybe even the validity of software patents. More than once in the past, a charitable contribution was accompanies by a Microsoft deal that barred adoption of Linux (a case of buying a country’s loyalty). This does, however, bring up many other concerns. Among them you have the impact of software developers, to whom software patents are discriminatory and predatory. They elevate the entry point and they offer no peace of mind. Have a look at this repetition of an argument we have made before.
Zemlin was more blunt, calling Microsoft’s “posturing” as “empty threats from a scared giant whose monopoly is being challenged.”
However, Merriam said that while larger companies are less likely to worry about Microsoft’s threats, some startups might be afraid that the company could sink their businesses by suing for patents, and may consider moving offshore to escape possible litigation.
Software development, whether Microsoft will admit this or not, benefits tremendously from sharing, which is something that patents sometimes prevent. This results in smaller innovative value, harming technology and science.
Now good software has always been written by good software developers without regard for how they share it. There is a discipline to developing good software involving inspection, source code management, build automation, test automation, and facilities to encourage discussion and decision making. We all know what we should do to develop good software, but good software developers know of no other way.
Free software and patents do not mix. Any attempt to introduce a tax-saturated software development ecosystem is an attempt to destroy what Microsoft is unable to compete against. Any such attempt would result in Free software development going overseas. From there, a thriving set of projects will evolve and then battle America. Rather than Free software having its seeds grow in America, it may be driven elsewhere. Given the inevitability of Free software, Microsoft sends tomorrow’s software industry en route to oblivion. But only in America.
In basic terms, as Moglen explained to the online audience, the new version of the license would make Microsoft subject to the GPL, because of its distribution of Novell Suse Enterprise Linux coupons. Under the language of the license, Microsoft would then be prevented from pursuing patent claims against the broader Linux community. Not just Novell’s Linux users would be protected.
This is news indeed. Todd Bishop has the story. Eben Moglen is saying that the SUSE vouchers Microsoft is distributing have no expiration date! I didn’t know this. It’s huge. This is, according to Moglen’s remarks, another defense to any patent infringement claim by Microsoft, and it may well bring that campaign to a screeching halt.
Every once in a while, Novell does something positive, usually in terms of technical merits. Every now and then we also wish to show that we are not evil (and neither is Novell). So, here are a couple of nice new developments from Novell.
Like other distributions, OpenSuse has a group of people working at a faster boot system. Atm there is no discussion about a new init system but about improvements on all fronts: kernel, init scripts, unnecessary system calls, etc.
If you’ve been pushing off on installing Linux due to a lack of CDs or DVDs, OpenSuSE 10.3 Alpha 4 features InstLinux, which allows you to install the Linux distribution (in this instance, OpenSuSE 10.3) while staying inside of Windows.
Debian, Ubuntu, and perhaps a few other distributions have something similar, which is even mature.
If only Novell was able to combine its technical strengths with some business sense. As Jeremy Allison told us:
“I’m sad [about the deal with Microsoft] because I don’t think we needed to do this. We were gaining a lot of traction with SuSE Linux desktop, and from my perspective (admittedly not high up in the company hierarchy with views on revenue) we were winning. We had a good product, I was always extremely busy with new customer requirements, and was personally involved in winning new customers for SLED and SLES. It just feels to me like snatching defeat from the jaws of victory.“
Over the years, Europe has maintained its sanity and sidled with logic. It acknowledged that fact that software patents must not exist. Some hypothesise (and almost even surmise) that Microsoft’s timing in this attack was carefully planned as to manipulate discussions about (and possibly change) European patent laws.
Microsoft’s claim that Linux infringes its patents was dismissed today as a tactic to spoil a European conference on rationalising the law on the subject.
Dana Blakenhorn has run a couple of insightful short essays on the need for consensus in industry and greed’s role in breaking (or at least stifling) consensus. Novell, with its ambition to distinguish its product, has chosen to snub the consensus that Linux requires open APIs. Instead, Novell chose to pay Microsoft its ‘tax money’, despite the fact that the EU decalred this irrational and anticompetitive.
There is a nice analogy in politics as well, and its even involves the environment, just like the business landscape.
The same weapons used by Microsoft against open source are being deployed by politicians, businesses and interest groups against the demands of consensus on policy. Thus it is that computing, business, economics and politics share a single inconvenient truth.
Novell encourages an indutry where every startup will have to pay for the right to communicate with other pieces of software. It is not only dangerous to a free and capitalist market. It is also extremely harmful to innovation.