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Patent Questions About the CDDL
Friday, January 28 2005 @ 10:46 AM EST

When I wrote about Sun's announcement about Open Solaris, I said that I wouldn't explain one issue I saw with the new license, the CDDL, because the Contributors' Agreement wasn't complete, and until I saw it I wouldn't know if an issue I had with the license was resolved or not.

I have just learned that Sun will not have the Contributors' Agreement finished for weeks, perhaps months. I thought we'd have the document in a matter of days. Because none of us can know our future for sure, and we never know when we'll be hit by a truck or a tsunami or something, I feel I need to explain the hole to you now, so you can sensibly decide if you wish to accept the terms of the license or if you prefer to wait until Sun makes whatever adjustments it decides to make in order to address the issue.

This isn't, I stress, an attack on Sun. I believe they will do something to address this concern. It's just information I feel responsible to explain to you. I have to date found them to be responsive to community concerns, and I see no reason to doubt that this issue will be solved in some way, too. But you do need to know about it, so you can track it and make sure.

The license for Open Solaris has a problem, I believe. Or more accurately, it has a potential problem that is unique to Sun and which stems from its recent agreement with Microsoft. Specifically, marbux spotted a way that it would be possible for developers co-developing Open Solaris to someday find themselves blocked from distributing code by a Microsoft patent infringement claim, while leaving Sun, because of their cross-licensing deal with Microsoft, free to continue to distribute the contributed code.

Dan Ravicher has spotted some other issues, too, which he raises in an open letter to Scott McNealy now on's website.

Here are the four questions Dan has about the patent grant:

1. Is Sun's patent grant limited to only software licensed under Sun's newly released Common Development and Distribution License (the “CDDL”)?

2. Is Sun's patent grant also limited to only software distributed directly by Sun?

3. Has Sun retained the right to make patent infringement claims against anyone modifying software licensed by Sun under the CDDL?

4. Did Sun use or attempt to use its agreements with Microsoft in an effort to protect free and open source software from Microsoft's patents? If not, why not?

So those are his issues. If, for example, you decide you wish to fork the code without signing the Contributors' Agreement, and you can do that, does the patent protection apply to you? Does it cover modifications?

Groklaw's marbux noticed another issue that we brought to Sun's attention and that I now want to bring to yours.

The CDDL was taken from the Mozilla 1.1 license, as you know. There is a clause in the Mozilla 1.1 license that was dropped from the CDDL. Noticing that is what got marbux thinking. You can see both licenses side by side on Groklaw's comparative chart.

I would like to take you through all the steps, one by one, so you can evaluate the risk for yourselves. First, you will note that both 2.1, the Initial Developer Grant, and 2.2, the Contributor Grant, of the CDDL grant you rights "Conditioned upon Your compliance with Section 3.1 below and subject to third party intellectual property claims. . . "

Next, let's take a look at Sun's explanation for why it dropped the clause:

3.2. Modifications: This section is based on Sections 3.1 and 3.4(c) of the MPL. The required notices in the MPL regarding third party claims and patents (formerly in MPL Section 3.4(a) and 3.4(b)) have been eliminated; they seemed overly burdensome and likely to prevent wider acceptance of the license by the community. Additionally, none of the other major open source licenses (e.g., GPL, BSD, CPL, OSL) require such disclosures.

Of course, the FSF isn't in a patent licensing agreement with Microsoft, so it doesn't need such a clause, but I think Sun does. Here is the clause from the Mozilla license that Sun has dropped in its entirety. You can get the redline diffs [PDF] that Sun has prepared, if that will help you to visualize what I'm talking about. The Mozilla clause that is missing in the CDDL reads like this:

3.4. Intellectual Property Matters (a) Third Party Claims. If Contributor has knowledge that a license under a third party's intellectual property rights is required to exercise the rights granted by such Contributor under Sections 2.1 or 2.2, Contributor must include a text file with the Source Code distribution titled "LEGAL" which describes the claim and the party making the claim in sufficient detail that a recipient will know whom to contact. If Contributor obtains such knowledge after the Modification is made available as described in Section 3.2, Contributor shall promptly modify the LEGAL file in all copies Contributor makes available thereafter and shall take other steps (such as notifying appropriate mailing lists or newsgroups) reasonably calculated to inform those who received the Covered Code that new knowledge has been obtained. (b) Contributor APIs. If Contributor's Modifications include an application programming interface and Contributor has knowledge of patent licenses which are reasonably necessary to implement that API, Contributor must also include this information in the LEGAL file. (c) Representations. Contributor represents that, except as disclosed pursuant to Section 3.4(a) above, Contributor believes that Contributor's Modifications are Contributor's original creation(s) and/or Contributor has sufficient rights to grant the rights conveyed by this License.

That raised the question in marbux's mind, namely, what about if Sun knew about some Microsoft patents but didn't tell the contributors? Sun's FAQ says this about patents:

The CDDL provides an explicit patent license for code released under the license, as well as provisions to discourage patent litigation against open source developers.

There is protection from Sun. I take Sun's patent grant as the company saying that they intend to do right as far as their own patents are concerned. But what about Microsoft? What if Sun knew about some patents Microsoft had and might someday use and yet Sun is not obliged under the license to disclose them?

It is, in the end, a matter of trust. I never, personally, enter into any contractual relationship on that basis. I want it all spelled out, including the worst-case scenario. I want to know what happens if we end up hating each other after we've entered the contract and have it all specified in the wording of the document before I sign. What can I do about it if you turn out to be a snake? Even if Sun didn't declare all conceivable IP issues under the sun, if they at least declared any potential patent issues they know about involving Microsoft, I'd feel a lot better about this license. Otherwise, what do you see in the license that would prevent the scenario marbux posits as conceivable?

Even if we assume that Sun will address the issue in the Contributors' Agreement, that doesn't solve the problem we see completely. That is because some may wish to fork the code without entering into the Contributors' Agreement. Then what? If the Contributors' Agreement solves the issue in some way, would they not be particularly vulnerable, because the license doesn't protect them from the hole in the license, and they haven't entered into the Contributors' Agreement? That is the problem we see that I am counting on Sun to solve.

I've asked marbux, who first noticed the license issue, to explain to you how all the above pieces weave together. You can then make up your own minds on what you want to do, based on what Sun does.


The Issues With the CDDL, by marbux

The CDDL is a rewrite of the Mozilla Public License ("MPL") v. 1.1. My concern centered on Sun's recent cross-licensing arrangement with Microsoft and Sun's reasons for removing MPL 1.1 sections 3.4(a) and (b), which require prominent notification when a contributing developer is aware that any third party has intellectual property rights in submitted code. I advocated the position that Sun should strengthen those provisions, rather than removing them, making clear that Sun itself as well as contributing developers are unaware of any potential relevant IP claims by third parties. I proposed the following language:

If either Initial Developer or Contributor has knowledge that rights granted under Sections 2.1 or 2.2 of this license are potentially subject to a claim of intellectual property rights by any third party, they are required to include a text file with the Source Code distribution titled "LEGAL.TXT" which describes each such claim and the party or parties making such claims in sufficient detail that a recipient will know which portions of the Source Code are involved and whom to contact. If Initial Developer or Contributor obtains such knowledge after the Source Code is made available to any second or third party, they shall promptly modify the LEGAL.TXT file in all copies Initial Developer and Contributor make available thereafter and shall take other steps (such as notifying appropriate mailing lists or newsgroups) reasonably calculated to inform those who received the Covered Software that new knowledge has been obtained.

Sun first rejected the proposed language, arguing that if such notifications were not needed in the General Public License for Linux, they should not be necessary in the CDDL, and that it would be suicide to Sun's hopes to develop an open source community if it withheld knowledge of blocking IP rights in software projects where it was the initial developer.

The short answer why it is needed in the CDDL and not the GPL is that Linus Torvalds has not just entered into a cross-licensing arrangement with Microsoft, the relevant details of which are not public. Moreover, the longer answer is that it is clear that the Sun-Microsoft cross-licensing arrangement affects Solaris, the software to be licensed under the CDDL:

Q: Do you believe Microsoft's behavior has changed? And there is a corollary: Do you think as part of this Java Desktop, Windows and Office and StarOffice will interoperate?

[Sun CEO Scott] McNealy: They do interoperate. And this just provides an opportunity and a framework to provide server-to-client, server-to-server, Solaris and Windows and Microsoft and Sun clients talk to those servers, to provide a higher level of interoperability and compatibility going forward while respecting each others IP (Intellectual Property). ... Think these two companies have uniquely advantaged each other from an interoperability perspective with the Solaris and Windows servers stacks.

Information Week.

It is also clear that Microsoft has patented the Windows interoperability code and intends to patent even more of it, according to the recent Court of First Instance decision in the European Union:

122 ... In its application for interim measures, Microsoft states that certain of the [interoperability] communications protocols that the Commission requires it to provide are covered by patents or patent applications and that it intends to file, before June 2005, a large number of patent applications covering various aspects of the Windows Client PC and server operating systems covering the [interoperability] communications protocols referred to in the Decision.

* * * * *

142. The [Microsoft] settlement concluded with Sun Microsystems – the only complainant before the Commission – in April 2004 comprises a series of reciprocal agreements whereby the parties agreed to collaborate in product development and to conclude cross-licences, including licences covering the types of [interoperability] communications protocols concerned by the Decision. Microsoft emphasises that the cross-licences make provision for consideration in the form of access to Sun Microsystems’ intellectual property and provide Sun Microsystems with an incentive to respect Microsoft’s intellectual property in its licensed technology.

See also Steve Ballmer April 2, 2004 statement, (stressing the importance of intellectual property cross-licensing in the April 2, 2004 settlement with Sun, saying "some of it [the settlement] is forward-looking, us to Sun and Sun to us, in terms of the licensing of key intellectual property that relates to making these things plug together and interoperate well over the network"); December 1, 2004 Microsoft progress report (stating that the two companies had made significant strides in their joint effort to allow "use of Windows on Sun," listing several significant milestones already achieved in operating system interoperability).

There is also an appearance that Sun will be paying royalties to Microsoft involving Solaris code:

The agreements involve payments of US $700 million to Sun by Microsoft to resolve pending antitrust issues and $900 million to resolve patent issues. In addition, Sun and Microsoft have agreed to pay royalties for use of each other's technology, with Microsoft making an up-front payment of $350 million and Sun making payments when this technology is incorporated into its server products.

Thus, there are strong grounds for concern that Solaris contains Windows interoperability code licensed from Microsoft, raising the possibility that Microsoft may at some point exercise its intellectual property rights to block further implementation of Open Solaris.


Patent Questions About the CDDL | 213 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here, please
Authored by: Mike Steele on Friday, January 28 2005 @ 11:00 AM EST


[ Reply to This | # ]

Off-Topic here, please.
Authored by: Mike Steele on Friday, January 28 2005 @ 11:01 AM EST


[ Reply to This | # ]

To put it politely then
Authored by: Anonymous on Friday, January 28 2005 @ 11:11 AM EST
Thanks SUN, but no thanks... I refuse to touch your
Solaris stuff with a barge pole for fear I might become

[ Reply to This | # ]

Patent Questions About the CDDL
Authored by: Anonymous on Friday, January 28 2005 @ 11:16 AM EST
It appears to me that Sun owes a "LEGAL.TXT" file in OpenSolaris that
declares what parts are Microsoft intellectual property. They are just
considered another developer of the System are they not? The Sun developers are
no different from anyone else who may take ideas/techniques from say AIX and try
to merge it into OpenSolaris.

Big Thanks to Marbux and PJ for seeing that the deletion of one paragraph opens
a huge backdoor to Microsoft. Isn't this a bigger risk to Sun than to those in
the Free/Open Souce community? If OpenSolaris development were to be derailed by
Microsoft over IP issues, Linux would just keep on moving. Sounds to me like
Linux, being unencumbered (uncontaminated?) by Microsoft IP is a lot lower risk
to the F/OSS community as a platform to develop application for.

[ Reply to This | # ]

Patents and the GPL
Authored by: Wol on Friday, January 28 2005 @ 11:17 AM EST
There's another reason why the GPL doesn't need this sort of clause.

As distributor under the GPL, you MUST pass on your right to distribute. If you
can't pass on that right, because it is encumbered by a 3rd-party patent, then
you can't distribute full stop.

So, in cases where the MPL would require a notice, the GPL simply says "you
can't distribute until you've sorted it out".


[ Reply to This | # ]

Patent Questions About the CDDL
Authored by: OrlandoNative on Friday, January 28 2005 @ 11:21 AM EST
Given the excerps from the Sun-Microsoft agreement, isn't this really a

It seems to me that Sun would not be able to contribute any code implementing
something licensed under a royalty agreement; simply because of the same issues
that are currently under discussion in the EU about the new Microsoft proposed
license there - namely, they would not be able to accurately track the number of
copies of the code to enable the calculation of a reasonable royalty.

I suspect that any such code would remain part of the 'proprietary' version of
Solaris... ...just like some of the drivers will not be released in the open
Solaris code, since they belong to someone other than Sun.

[ Reply to This | # ]

Suspicious: no comment from SCO or Microsoft
Authored by: ak on Friday, January 28 2005 @ 11:28 AM EST
I have not yet seen a negative comment from SCO (or Microsoft) about

[ Reply to This | # ]

SCO vs Sun?
Authored by: inode_buddha on Friday, January 28 2005 @ 11:44 AM EST
I've been wondering... when can Sun expect a lawsuit from SCO for distributing a
UNIX "s00per-s3krit IP"?


[ Reply to This | # ]

Patent Questions About the CDDL
Authored by: r_a_trip on Friday, January 28 2005 @ 11:52 AM EST
OpenSolaris seems to be a CPTT timebomb. The FOSS community at large better keep
their hands off. We already have multiple Free unencumbered systems. BSD,
GNU/Linux, GNU/Hurd. No need to expose oneself to a tricky OS, released by an
erratic company.

(CPTT = Copyrights, Patents, Trademark, Trade Secrets. The CDDL covers 2 of
them, but the most important are still unclear. Copyrights, wether Novell's or
SCO's and Patents).

[ Reply to This | # ]

Patent Questions About the CDDL
Authored by: rsteinmetz70112 on Friday, January 28 2005 @ 12:06 PM EST
I'm not sure I agree with significance of this. Sun, if they did this knowingly
would likely be liable for damages to third parties. On the the other hand Sun
cannot know what Microsoft might do or whether their claims will be upheld. In
fact from what I have seen many of Microsoft's patents are weak and very

Given that many people recommend that developers should not seek knowledge of
existing patents, in order to avoid willful violation of them. Requiring
disclosure may well increase everyone's liability. It might be interpreted by a
court as a duty to determine if there is a potential patent claim. I think this
is what Sun is saying by eliminating the clause from the MPL.

Sun could truthfully say that they are not aware of any patent problems, if they
never review the Microsoft Patents. They can, and probably will, due to their
agreement, simply ignore the Microsoft patents and rely of their cross license.

I really doubt Sun will wade through the patent claims to develop software, they
are far more likely to rely on the technical information provided by Microsoft
as a part of the technology sharing portion of their agreement. Those documents
may not reference all or even any of Microsoft's patents.

Sun will also probably be prohibited from disclosing that technical information
and have to wall it off from the OpenSolaris developers, much like OpenOffice
and StarOffice or IBM's AIX and Linux efforts.

I don't trust Microsoft and it's good to be on guard. Unfortunately patent
problems exist and are likely to for a while. I'm frankly more concerned about
the patent fraud which seems to be gaining currency as a business model.

Microsoft has some significant practical restraints on their behavior. If they
sue Sun or IBM it will be seen as a typical business dispute. If however they
avoid going after the primary instigator and start going after peripheral
actors, they will risk a huge backlash as well risk one of their big competitors
stepping as a white knight.

Sun on the other hand, having started this OpenSolaris effort cannot allow
Microsoft to attack it without defending the nascent community. They are far
more vulnerable to a backlash than Microsoft, because there is a drop in
replacement and directly competitive products.

I hope and believe that Sun will use OpenSolaris and the technology agreement
with Microsoft to build a new desktop and server products which will be a
seamless replacement for Windows desktops and servers in Microsoft environments,
creating a third way, somewhere between Linux and Windows.


"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

  • Except... - Authored by: Anonymous on Friday, January 28 2005 @ 02:14 PM EST
Dealing with the Devil
Authored by: Anonymous on Friday, January 28 2005 @ 12:12 PM EST
Sounds like one could find themselves in a bit of a jamb
if they weren't VERY carefull. This smacks of a deal with
the Devil; its too contorted and weasel worded to ever
be sure you are absolutely clean.

I'd stay away and just avoid the whole thing.


[ Reply to This | # ]

Concern about polluting developers after seeing patents
Authored by: Anonymous on Friday, January 28 2005 @ 12:15 PM EST
One thing that really bothers me is SUN is using its patents to protect their
own community, but not OSS at large. What happens when a OSS developer looks at
SUN's patents to develop code for SolariX then turns around and developes code
for FOSS only to have SUN sue for patent infringement with special

I'm also concerned how the general press is reporting SUN has allowed the OSS
community at large use of their patents when in reality it's only the CDDL
community who can use them. It really seems to me SUN is helping to foster a
false perspective of their patent grant in order to get praise that isn't due to

And I don't like how it seems they were in a great position to enter the Linux
market as a real player yet have gone out of their way to make a deal with the
devil, alienate the FOSS community, and say all sorts of horrible things then
turn around with a straight face and try to convincingly say they don't
understand why so many feel negative about SUN.

Most of all, they were in a position to protect the community so everyone
benefits, but instead chose a position where only they benefit leaving everyone
else out for the wolves. That specifically, tells me what I want to know about
their character.

IBM chose to let everyone use their patents including SUN, but not the other way
around. That's all I need to know when it comes time to choose.

I've handed out about 20 live Linux CD's and I will promote IBM's FOSS effort,
Novell, Redhat, Mandrake, Debian, Knoppix, GNU, and the priciples behind the

[ Reply to This | # ]

I'm a little confused
Authored by: Anonymous on Friday, January 28 2005 @ 12:15 PM EST
Are they going to release OpenSolaris under the OSI
approved CDDL version 1.0, or not? If the contributors
agreement is not "complete yet", then the license won't be
the one that was approved by the OSI, will it?

Are they going to resubmit the license to OSI for approval
and bump the version number?

Sun has released the source code for dtrace, and the CDDL
is in it. Has anyone checked it out?

[ Reply to This | # ]

Why would anyone indemnify 3rd parties from anything?
Authored by: Anonymous on Friday, January 28 2005 @ 12:39 PM EST
I like Groklaw and appreciate PJ's and the regulars' thoughts, but geez. I once
was offered a great development contract and I had to walk away because it was a
Linux job asking for indemnification - ie. if they sold or distributed the
result all patent/copyright litigation from any 3rd party use would go back to

This is the same thing for Sun. If everyone in the world used opensolaris,
would they be smart in promising to pay Microsoft licenses for them. Sun has
nothing to do with these people other than the fact they gifted the people
software. What a burden donating open source software has become!

If you bought a product from a company in full faith that they were clear of IP
problems, and you were only an end user - then yes indemnification should be

IBM did no such thing either. They promised to not sue open source developers
for only these patents, I guess by the definition of developers using OSI
compliant licenses. If the company sells a proprietary fork of the code, I
doubt IBM would be so nice about that. IBM will not defend random open source
projects if they get sued for abusing similar patents or countersue a plaintiff
abusing these patents. Keep in mind IBM has tens of thousands of patents not
promised, so this 500 is no big deal. Remember the initial Sun shake down IBM
did - 'OK so maybe you aren't violating these patents, do you want us to go back
and find all the ones you are?'

Sun promises not to attack contributors to their own project, which is sane. It
is just sad how few patents they have. I doubt they will be giving anything
else away, it wouldn't be sane to do so.

[ Reply to This | # ]

Sun/Microsoft conspiracies
Authored by: Anonymous on Friday, January 28 2005 @ 12:52 PM EST
I seriously doubt Sun knew for sure it was going to open source Solaris when it
agreed with Microsoft. I doubt it remembers what it had for breakfast or has
any idea what it wants to eat for dinner.

[ Reply to This | # ]

Universal Patent Infringement
Authored by: lightsail on Friday, January 28 2005 @ 12:52 PM EST
In the current patent chaos, infringement seems inescapable. Listen to my

The staggering complexity of the PC-Internet infrastructure exposes a single PC
user to thousands of separate patents. Did the manufacturer of every hardware
and software component properly vet all the patents that their product might
infringe upon? Look at the Intergraph vs. Intel etc. settlement. Did the
settlement indemnify my processors that infringe or am I legally still
infringing an Intergraph patent? Look at every technology patent infringement
lawsuit and ask this question: do I have that product in my system? Patent
holders generally sue the manufacturer of a product, but simply owning an
infringing item is infringement.

Acacia Research claims a broad patent over digital audio-video. At this moment,
the patent is valid and every Pc that can display any audio-visual file can be
considered to infringe. How many other obscure patents will be unearthed and
turned into profit points by professional IP litigators?

I write reporting software for a mixed Unix – Windows environment, limited to
use in our division (no outside distribution). The COM object portion may
infringe the expanded claims of Kodak’s patents.

The possibility of a BSA or RIAA style patent infringement crack down of
individuals who infringe on some of these obscure technology patents looms in
the future.

[ Reply to This | # ]

Why should I care about Open Solaris?
Authored by: Anonymous on Friday, January 28 2005 @ 12:55 PM EST
This is not meant to be saterical or prejudicial, but from what I can see from the DTrace stuff they already released, if I already have Solaris, and have paid for their very expensive and incidently proprietary compiler, I can compile and modify those bits of code they did choose to release, and maybe find I myself responsible for infringing on Microsoft patents that only sun has cross licensed. Maybe somebody can successfully explain why, again, is there OpenSolaris, and how again is it supposed to actually create a community?????

[ Reply to This | # ]

About SUN
Authored by: Anonymous on Friday, January 28 2005 @ 01:34 PM EST
Sun had an opportunity to join the community and become part of the changes that
reshape the future of software. Sun choose to take another road, that road upon
investigation was found to be a dead end.

How did Sun arrive at this idea that just to opensource another operating system
that somehow it would be accepted without question, because of an opensource
license. Sun's seemingly lack of the capacity to realize, that this was an
arrogant and obviously a limited offer, just makes this suspicious in my

The situation for Sun is serious, lack of organization of a road map for
opensource, will impose its own unique financial and market future on Sun.

[ Reply to This | # ]

Sound and Fury
Authored by: overshoot on Friday, January 28 2005 @ 01:40 PM EST
signifying nothing?

The more I look at OpenSolaris, the less I see.

  • Apparently, those famous 1600 patents! are only licensed to software licensed under the CDDL.
  • Currently, there is exactly one body of software licensed under the CDDL: OpenSolaris
  • Apparently, the source code that Sun has released only compiles if you use a Sun-internal compiler. So the source is of limited use even if it were complete.
  • Apparently, Sun isn't going to release the source code for a complete OS kernel, just parts. In other words, you still have to get the binaries from Sun.
  • In sum, those patents are only applicable to a program which is only available in binary form from Sun Microsystems. Presumably, you wouldn't be liable to a patent infringement lawsuit by Sun for using code that they distributed anyway -- there's no knowing what the Federal Circuit will do, of course, but this sure looks like a textbook case of estoppel.
  • Whoopie.

[ Reply to This | # ]

Sun Coverage
Authored by: rsteinmetz70112 on Friday, January 28 2005 @ 03:50 PM EST

In the past I have criticized you for your coverage of Sun. I want to thank you
and marbux for an even handed thought provoking coverage of these latest

I started to send you an email but I decided since my previous comments were
public this should be too. I only hope this does not set of a long tangential


"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

  • tangent - Authored by: Anonymous on Friday, January 28 2005 @ 04:48 PM EST
  • Sun Coverage - Authored by: Ninthwave on Friday, January 28 2005 @ 06:39 PM EST
"The GPL doesn't have this clause!"
Authored by: darkonc on Friday, January 28 2005 @ 04:47 PM EST
Sun points out that the GPL doesn't include notes about patent rights, and uses this to help excuse their own removal of such clauses.

The GPL was written before patent rights were the worry that they are now. The FSF is now in the process of producing a new version of the GPL which is expected to add clauses intended to address patent issues.

Given how serious an issue patent rights are looking to become for the Open Source community, removing references meant to help resolve patent rights issues seems ill-timed and ill-advised.

Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

Is it even really oss?
Authored by: Anonymous on Friday, January 28 2005 @ 04:47 PM EST
I gather it requires their proprietary compiler to build.

I gather that only "parts" of the solaris kernel source tree will be released as source (under the CDDL). How do you do a "make" kernel build with only SOME of the source for it? What can you do with it at all other than "look" at it then?? If so, it sounds no better than Microsoft "look but don't touch" "shared source" thing.

I suppose if there is a kernel kit that includes the binary parts in linkable form, what source that is released might constitute something of fairly limited use. Certainly having binary parts built under the sun compiler may preclude modifying the sources for use with gcc though. If so, it still sounds very limited.

What then is even the point? Why should they bother doing something so broken? And then legal issues on top of it? If it's an exercise to compete with the Linux kernel, their methodology is completely broken in a way that seems predestined for failure.

[ Reply to This | # ]

Time Bomb ! Anyone?
Authored by: waltish on Friday, January 28 2005 @ 04:57 PM EST
I think most open source,ers will be too smart to stumble into that mine field.

They will get some developers for sure , but i doubt that it will develop a
comunity, let alone the Groundswell of support and usage they think will come,
well not while they are planting mines for MSoft's benefit. (and maby at MSoft's

To speak the truth plainly and without fear,Is powerfull.

[ Reply to This | # ]

Not Quite Right - Sun After Free Beer!
Authored by: sproggit on Friday, January 28 2005 @ 04:58 PM EST
I'll gleefully admit to being a conspiracy theory at heart. I think it was Craig Barrett of Intel who once said, "Just because you're paranoid doesn't mean they're not out to get you..."

There is something about this new Sun licence and perhaps the MS cross-licence deal that doesn't quite ring true.

Let's start with the first part - the part where Sun release some of the Solaris source. This has to be plain cynicism on the part of McNealy and his company. They have watched the way in which IBM have built a massive support base across perhaps millions of developers and users of GNU/Linux and decided that they need to get in on the action. Their problem is that Sun are little more than a two-trick pony these days [Solaris and Java] while IBM is an IT player with a truly landscape-wide breadth and depth of services. Sun don't want to "give away" their "Crown Jewels".

So my first theory here is that what they have tried to craft is an environment where they can try and convince the "Free Software" community that they also believe in the "Free Software Movement". Thing is, Sun see it as "Free Beer" not "Free Speech". They are suddenly aware of the fact that if anyone can effectively harness the millions of man-hours of effort given freely into open source projects every year, then that company will have found a new "gold mine" of resources to "plunder". How cynical of them.

Things got tricky when they realised that GNU/Linux, Apache, PHP, MySQL, Perl, KDE, GNOME, etc, were already out there, established and way ahead of Solaris.

So it looks to me as though, late to the game, Sun are trying to set up their own little "open source" project, carefully released under their version of the CDDL, which effectively means that Sun will own your contributions and that they aren't going to be "Free" in quite the way that the FSF and the GPL intend program code to be free. Fancy that.

So on first pass, if I read this right, it could be nothing more than a cold and cynical attempt to cash in on the FOSS Community's goodwill, then walk off with a controlling interest in anything produced. Hmm...

Back to the conspiracy theory piece. Tin hats at the ready, folks.

Sun are also telling us that they have signed cross-licensing deals with Microsoft for chunks of code. Just suppose some of the MS code was released by Sun as part of this CDDL [oops! sorry! accident! didn't mean to!] but was sufficiently useful as code snippets to either be used or read by programmers who work on FOSS projects.

If anything that had been touched and released by Microsoft in this way found it's way into GPL'd code, would this give Microsoft the legal right to go gunning for the author[s] of that GPL'd software? If so, what would likely penalties be? Makes you start to wonder about all these little stories were here from time to time about source code for one MS product or other being released onto the web. It creates such a whirl of excitement as people go looking for it, without those programmers perhaps realising that MS can use simple pattern-matching techniques to scan source code libraries looking for key methods or functions they might have written.

I'm wondering if this might be the software equivalent of a "submarine patent". See? I said you would need a tin hat for this!

Scott McNeally and Sun Microsystems have been truly amazing and innovative as an IT Company in the last 20 years. It deeply saddens me to see that they have to sign truce pacts and take tainted coin from the likes of a company that would cheerfully wipe them from the face of the earth if they could get away with it. Please remember, Mr McNeally, that monies given out by Microsoft are like a drug. The moment you get addicted, they'll cut off your supply. Better to quit now - go cold turkey - and return to what you do best - being a great IT company.

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glib response
Authored by: jig on Friday, January 28 2005 @ 05:03 PM EST

Danger, Wil Robinson!

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We are entering a new era
Authored by: blang on Friday, January 28 2005 @ 05:32 PM EST
And in this era, we have to break an old proverb.

Always look a gift horse in the mouth.

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going to file patents?
Authored by: cricketjeff on Friday, January 28 2005 @ 06:00 PM EST
It is also clear that Microsoft has patented the Windows interoperability code
and intends to patent even more of it, according to the recent Court of First
Instance decision in the European Union:

122 ... In its application for interim measures, Microsoft states that
certain of the [interoperability] communications protocols that the Commission
requires it to provide are covered by patents or patent applications and that it
intends to file, before June 2005, a large number of patent applications
covering various aspects of the Windows Client PC and server operating systems
covering the [interoperability] communications protocols referred to in the

You cannot patent something you are already selling! If the software is already
on the market then they have already made it public and hence barred themselves
from patenting it. This has always been a problem for poor solo inventors, as
soon as you disclose an idea, that's it. If the patent wasn't applied for before
that point anyone who could have got the information other than through the
patent is free to use it. Unless there has been a major change in patent law in
the last few years since I ceased to do research.

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Why I might not want that section if I were Sun
Authored by: PJP on Friday, January 28 2005 @ 09:24 PM EST
[IANAL] - so PJ and others will undoubtedly correct me if I am wrong here...

I think this might be for liability reasons. The missing section would require
Sun to notify peopl of known patent problems, and if they became aware of them
later, to do likewise and make the newly discovered problem widely known.

I see two things which would trouble me:

1) Microsoft has a huge base of patents and that base is getting bigger every
day. Some will fall under the MS/Sun agreement, and some will not. If Sun is
unaware of a patent which could be construed to fall under that agreement and MS
goes out and attacks with that patent, could Sun be held responsible for not
knowing, and giving the warnings it would be required to give if it did know? My
guess is yes. My further guess is that Sun consider it close to impossible to be
able to be 100% up to date and accurate on patents held by another company.

2) The section as written in the Mozilla license is quite imprecise about what
needs to be done to publisize a newly discovered problems - phrases like
"shall take other steps (such as notifying appropriate mailing lists or
newsgroups)" would never get past any decent lawyer that I know - they
would want a precise list of the exact steps that needed to be taken, otherwise,
I could make an argument that Sun should reasonably have known that I, as a goat
farmer, would only regularly read "The Goat Farmers Weekly", and that
they should have published a notice there.

The second problem could be fixed relatively easily (IMHO). The first looks like
a minefield to me, which can only really be avoided by one of:

a) Terminating the agreement with MS - not going to happen for lots of reasons.

b) Weasle words in the license, which, IMHO, Sun have tried quite hard to avoid
- and I congratulate them on having contained their lawyers so well.

c) Dropping the section altogether and trusting that MS would act responsibly
and reasonably with respect to any of its patents which fall under the MS/Sun
agreement - may be wishful thinking, or not - I don't know the detail of the
Sun/MS deal - there may be teeth in there to protect Sun and its sub-licensees,
which could conceivably include this license.

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Worthless OpenSolaris
Authored by: Anonymous on Friday, January 28 2005 @ 09:36 PM EST
Just read this:

> Sun making payments when this technology [from Microsoft] is incorporated
into its server products.

That would be Microsoft's own technology inside Solaris. You want to place any
bets as to the licensing of that "technology"? Ah yes, which one
exactly Sun, the OpenSolaris (which would then obviously be incomplete and
useless) or the proprietary one?

What are these people at Sun thinking? That we've been born yesterday? Please,
don't touch the OpenSolaris code before you know for SURE that their is no
danger of contaminating anything you're working on. Especially if you're a Linux
kernel developer.

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The silence of IBM (and HP - who are they)
Authored by: Brian S. on Friday, January 28 2005 @ 10:00 PM EST
In plain English the Sun/MS agreement means you can run Windows on a Solaris Platform.

This deal appears to shut out IBM but does it? They lost interest in PC's and server software years ago apart from manufacturing requirements.

This article came to my notice.
BEA Systems, IBM, Microsoft, SAP and Sun Microsystems, have jointly submitted a specification for cross-platform compatibility to the World Wide Web Consortium (W3C).

More from W3c

Linux has its place in noncommercial systems but.........

Just how big is IBM's commitment to Linux?

Comments welcome.

Brian S.

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Now it seems obvious
Authored by: Anonymous on Saturday, January 29 2005 @ 12:10 AM EST
CDDL == cuddle
cuddle == embrace
embrace and extend, same as ever

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ZDnet has another twist on this
Authored by: inode_buddha on Saturday, January 29 2005 @ 01:48 AM EST
"Will Sun's 1600 patents suck the life out of Linux?"
Link here. []


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SUN/M$ Open Source Community
Authored by: micheal on Saturday, January 29 2005 @ 05:53 AM EST
If M$ really ports MS Windows to OpenSolaris then I think there will be a very
large community of M$ applications programmers that will be happy to make
improvements to OpenSolaris. The CDDL does not pose much problem since the
programmers would not have much interest in forking O'Solaris or incorpoating
parts into their own code. Just make O'S work. That is what made DEC so
successful for many years. The users could fix and extend the proprietary DEC
OS's to make their own applications run or run better.

GNULinux is similar with the added benifit that a user can include GNULinux code
in their own GPL code with the added advantage that they can sell the code
(under GPL restrictions).

LeRoy -
What a wonderful day.

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something comes to my mind
Authored by: andreworg on Saturday, January 29 2005 @ 06:03 AM EST

Is it possible that this is a move to stifle "proper" F/OSS

I mean, show them the code but don't let them really use it, so that when they
come up with similar ideas, you sue them into oblivion. Microsoft may well be
backing that.

Or maybe, on a broader note than the usual MS conspiracy theory, human evolution
was running too fast, and Nature found a way to balance it down: CPTT.

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Effing PDF files
Authored by: prino on Saturday, January 29 2005 @ 12:41 PM EST
Why the f... hell puts pubpat a one page letter, with an text content of about
1k into a 157kb PDF file? Is there anything wrong with just plain text?

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Hardware Vendors and Microsoft-based Desktops
Authored by: Anonymous on Saturday, January 29 2005 @ 01:41 PM EST

Q1: Of the following hardware vendors, which ones sell predominantly Microsoft-based desktops and which ones sell predominantly Microsoft-free desktops?

  1. Apple
  2. Dell
  3. HP
  4. IBM
  5. S un

A1: Only Sun is predominantly Microsoft-free on the desktop. The standard office suite on Sun systems has been StarOffice, the source code of which was given to the project by Sun. Although Internet Explorer for Suns did exist, it was never used widely.

Apple does not use Microsoft Windows, but has long relied on Microsoft Office as the standard office suite. Internet Explorer also comes standard, although Apple has recently put emphasis on its Safari web browser (based on the KHTML/KJS of Konqueror).

Dell, HP and IBM predominantly provide desktops with MS Windows, Internet Explorer and Microsoft Office as the recommended standards.

If IBM succeeds in selling off its PC division, it may change its status in this list.

Q2: What would happen to Sun's customer base if it switched to a Microsoft-based desktop?

  1. Customers who would prefer to make the switch would also switch to lower-cost hardware with a better track record for Microsoft-based desktops.
  2. Customers who would prefer to keep free of Microsoft-based desktops would switch to other alternatives.
  3. Both of the above.

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Patent Questions About the CDDL
Authored by: kamauo on Saturday, January 29 2005 @ 10:14 PM EST
Let us face the facts:

Solaris is not a threat to M$ and will not be a threat: however, M$ Windows is a
threat to Solaris.

GNU/Linux is a big threat to both M$ Windows and Solaris.

Sun open sources Solaris in order to compete with GNU/Linux, period.

Both M$ and Sun have been attacking Red Hat who is the leading GNU/Linux

We know one thing about M$, which is the fact that M$ kills all competition one
way or other.

With GNU/Linux around Sun Solaris will continue to die a slow and painful

Does it need a rocket scientist to see how this game is being set up to be

Open Source Solaris is just a bait that M$ is using to lure GNU/Linux and FOSS
into a trap; however, they will not be able to prevail because the bottom line
for the FOSS developers deal in love based on freedom.

For M$ and Sun their game is based on avarice and full control. There is no
love here, moreover, there is always something sinister afoot when two old
enemies decides to become friends.

Everyone needs to know that M$ has the last word in the CDDL. If this is not
true then Sun will meet all the requests of the FOSS developer community.

Anyone who did not forgo her or his ability to think critically and
constructively already knows that the SCO fiasco is simply a delaying tactic
against GNU/Linux.

The only time any one should trust Sun to do right is when they open source Java
under the GPL. If they do this then they can be trusted and if they do not they
should not be trusted because they will eventually raise their head and prove to
everyone that they are just another snake in the grass.

Sun is like a drowning person therefore it is only natural that they should
believe that a $traw will save them.

Sun should be left alone to die slowly because they need the FOSS community more
than the FOSS needs them yet they would seek to kill it.

Microsoft will soon get a big jolt and from then on they will continue to die a
slow and painful death over a long period of time.

The harder they come at GNU/Linux and FOSS the harder they will fall. It is
just a matter of time my sisters and brothers; greed never fail to destroy the
greedy because Love in invincible.

Funny how the Holy Bible (KJV) teaches us that God is Love. :-)

Long Live FOSS! All it takes is a small Axe to cut down the biggest tree; be
patient and keep software free.

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