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SFLC's Bradley M. Kuhn's Letter to the FOSS Development Community Regarding Microsoft's Patent Promise
Thursday, November 09 2006 @ 11:53 AM EST

The Software Freedom Law Center's CTO Bradley Kuhn has issued a statement regarding the Novell-Microsoft agreements and how they will impact FOSS developers. They have analyzed in particular Microsoft's Patent Pledge for Non-Compensated Developers and see little value and in fact say it's worse than useless, because it creates an illusion of safety and because it limits severely what that developer is allowed to do with his work:
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...

It's worse than useless, as this empty promise can create a false sense of security. Don't be confused by the illusion of a truce; developers are no safer from Microsoft patents now than they were before. Instead, Microsoft has used this patent pledge to indicate that, in their view, the only good Free Software developer is an isolated, uncompensated, unimportant Free Software developer.

Personally, I'd go further and say 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? That is one of the main purposes of putting software under the GPL in the first place. It's also why Linux development was so much faster than proprietary software development ever can be. So who is going to stay within the lines of this so-called safety from being sued by Microsoft? Obviously nobody in the FOSS community. Microsoft gets to claim it has offered something wonderful, but in reality no one can actually benefit from its pledge without ceasing to be a member of the FOSS community.

That's a little bit like telling prisoners of conscience they can get out of prison if they deny and denounce the beliefs that got them imprisoned in the first place. Here, Microsoft agrees not to sue you unless you do something useful. It gets to retain its development model and business methods, but its chief competition must cease and desist or be sued into oblivion. Do you prefer dying by swallowing a poison pill or by firing squad? And just exactly why did Novell agree to something like this?

Here's his full statement, though, so you can make up your own mind. I'll put the Microsoft pledge after it, so you can refer to it.

******************************

Bradley M. Kuhn's Letter to the FOSS Development Community Regarding Microsoft's Patent Promise

Last Thursday, Novell and Microsoft announced a new collaborative effort involving both licensing and technology. The Software Freedom Law Center has been following the situation, and as its CTO, I've held a particular interest in how it will impact Free Software developers. One result of the agreement, Microsoft's patent pledge to developers, has received significant interest from the Free and Open Source Software (FOSS) development community.

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.

In short, the pledge applies precariously to developers who work in a vacuum: those who write original software in their spare time, receive no payment for it, and do not distribute it to anyone under the GNU GPL. It's worse than useless, as this empty promise can create a false sense of security. Don't be confused by the illusion of a truce; developers are no safer from Microsoft patents now than they were before. Instead, Microsoft has used this patent pledge to indicate that, in their view, the only good Free Software developer is an isolated, uncompensated, unimportant Free Software developer.

by Bradley M. Kuhn, Chief Technology Officer, Software Freedom Law Center


Bradley M. Kuhn has served as CTO of SFLC since its inception. He previously served as the Executive Director of the Free Software Foundation (FSF), and has contributed to many Free Software development projects.

Copyright (C) 2006 Bradley M. Kuhn Verbatim copying and distribution of this entire article is permitted in any medium without royalty provided this notice is preserved.


*****************************

Microsoft’s Patent Pledge for Non-Compensated Developers

Many software developers, often referred to as “hobbyists,” write code not with the expectation of making money, but because they enjoy solving technical challenges and participating in a community of enthusiasts who recognize and encourage one another’s talents. One such community of hobbyist developers participate in the development of open source software. To further encourage these efforts, this pledge provides non-compensated individual hobbyist developers royalty-free use of Microsoft patents as set forth below.

It is Microsoft’s intent that this pledge be legally binding and enforceable as to individual hobbyist developers according to the terms below.

Non-Assertion of Patents Pledge

Microsoft hereby covenants not to assert Microsoft Patents against each Non-Compensated Individual Hobbyist Developer (also referred to as “You”) for Your personal creation of an originally authored work (“Original Work”) and personal use of Your Original Work. 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. A “Non-Compensated Individual Hobbyist Developer” is an individual software developer (i.e., a person and not any corporation, partnership or other legal entity), including a developer of open source software, who receives no monetary payment or any other forms of consideration that can be valued monetarily for their creation of their Original Works. The fact that You may be employed as a software developer by, and receive a salary from, a corporation, partnership or other legal entity, does not disqualify You from treatment as a “Non-Compensated Individual Hobbyist Developer” under this pledge, provided Your activities related to the creation of Your Original Work are performed during Your free time and outside the scope of Your employment. The Microsoft Patents subject to this pledge are all patents issued world-wide to the extent they are owned or controlled by Microsoft or its majority owned subsidiaries. For additional information on obtaining rights under Microsoft patents to contribute Your Original Work to an open source project, please see Microsoft’s Patent Pledge for Hobbyist Contributors.

Microsoft reserves the right to terminate and revoke this pledge to You, as of the date granted, if You or an entity that You control asserts a patent infringement claim against a Microsoft product, service or technology. Reservation of Rights

Microsoft further reserves the right to prospectively update and revise the terms of this pledge, for example to accommodate applicable laws, rules, orders or regulations. The rights provided under this pledge are personal to You and are not for the benefit of others. All rights not expressly granted in this pledge are reserved by Microsoft.


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