Mailinglist Archive: opensuse-project (144 mails)

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Re: [opensuse-project] Microsoft’s Patent Ple dge for Individual Contributors to openSUSE.org
  • From: Saill White <saill.white@xxxxxxxxxxxx>
  • Date: Sat, 18 Nov 2006 08:41:47 -0800
  • Message-id: <455F37CB.1090709@xxxxxxxxxxxx>
On 11/17/2006 11:04 PM, Andreas Jaeger wrote:
> "Paul C. Leopardi" <paul.leopardi@xxxxxxxxxxxx> writes:
>
> Please bring the complete post over here...

This is important - I wasn't aware that Microsoft specifically addressed openSuse.org. Here is Paul's original post:

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Hi Jim,
I'm not concerned with the deal itself so much as the way Microsoft's "patent
indemnification" is actually supposed to work, vs. GPL and any other licences
on the code in question. So I'm going to ask some hard questions here and
hope that you or others on the list will have some cogent answers. See below.
Best regards

On Saturday 18 November 2006 04:59, Jim Stalewski wrote:
> I think you're all (except for Harald) off-base and are falling prey to
> anti-M$ "fud" from the OSS community.
>
> This deal does not have anything to do with OSS per-se, or the
> inclusion/exclusion of proprietary, licensed, patented M$ crud finding its
> way into OSS projects like OpenSuSE.
>
> http://www.novell.com/linux/microsoft/faq_opensource.html
> http://www.novell.com/linux/microsoft/faq.html
>
> OpenSuSE is not part of the M$ agreement. It's partly a promise to extend
> patent indemnification to Novell customers. OpenSuSE is fully OSS, so
> that's not part of it at all.

Please refer to http://www.microsoft.com/interop/msnovellcollab/community.mspx
Look at the heading,
"Microsoft’s Patent Pledge for Individual Contributors to openSUSE.org"
Notice how it is Microsoft's pledge and how it specifically refers to
openSUSE.org? Now, explain to me why this pledge exists and what is its
purpose, when as you say, "OpenSuSE is not part of the M$ agreement"? This is
NOT 'anti-M$ "fud" from the OSS community'. It is Microsoft's own web site.

As to specifics, under "Non-Assertion of Patents Pledge" is stated:
"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 important thing to note here is that "SUSE Linux" is now "openSUSE".
See http://lists.opensuse.org/archive/opensuse-announce/2006-Jul/msg00001.html

Condition (ii) is of most interest to me. It refers to "any Microsoft
intellectual property" but does not refer to any definition of this. I will
now give a hypothetical example which at least to me shows how this condition
potentially violates the GPL and any similar "copyleft" licences.

Let's say that Microsoft releases some software ("A") under the GPL.
( This is not impossible. For example, parts of "Utilities and SDK for
UNIX-based Applications" are licenced via the GPL.
http://www.microsoft.com/windowsserver2003/R2/unixcomponents/webinstall.mspx )
Now, what happens when Microsoft updates or patches the GPL code "A"? In order
for Microsoft to continue distributing code "A" under the GPL, Microsoft must
distribute the patch ("B") under the GPL. That is, Microsoft intellectual
property, that is the copyright for patch "B", must be licenced using the
GPL. Now, lets say you as a developer receive GPL code "A" with Microsoft
patch "B", and you want to add to it and contribute it to openSUSE.org. Under
condition (ii) you must 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". But you can't ensure this, because code "A" with
patch "B" is licensed under the GPL, which is incompatible with condition
(ii). The GPL is incompatible with condition (ii) because it insists that all
recipients have the right to further distribution under the GPL.

I am not a lawyer, but I think my understanding of this hypothetical case is
pretty watertight. If you can do so, please hire a lawyer to show me where my
reasoning is faulty.

Also, under "Non-Assertion of Patents Pledge" is stated:
"There are a variety of ways to satisfy the requirement under section (ii)
above. For example, one way to satisfy the requirement under US law is for
openSUSE.org to include the following provision as is in its binding
contribution agreement with You:
'openSUSE.org agrees that as a condition of receiving the attached
contribution of Your Original Work, openSUSE.org does not receive from You
the contributor any licenses, covenants or any other rights under any
Microsoft intellectual property with respect to that Original Work, and
openSUSE.org will ensure that all further recipients of this Original Work
will be subject to this same condition. “Original Work” has the meaning as
set forth in Microsoft’s Patents Pledge for Individual Contributors to
openSUSE.org.' "

Do you or does anyone on this maling list know if openSUSE.org plans to
include the provision 'openSUSE.org agrees ... openSUSE.org.' above into
its "binding contribution agreement"? Who decides if this provision is to be
included? Novell? If this provision is included, would developers agree to
it? For example, would the Samba team agree to it?
http://news.samba.org/announcements/team_to_novell/

OK, now, could again please explain to me how "OpenSuSE is not part of the M$
agreement"?
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> We're not going to accept contributions from anybody that infringe
> valid Microsoft patents, see also my personal blog entry:
>
> http://www.novell.com/coolblogs/?p=629

Whether the contributors are violating patents or not, they automatically will be violating section 7 of the GPL by contributing.

> IMHO the way that the acceptance of contributions works is different
> than what Microsoft envisions.
>
> Once the buildservice is up, I imagine: Developer A does some work,
> Packager B packages it and submits to the openSUSE buildservice and
> some person C accepts it into the factory distribution. This looks
> different to the above.


Yes, it does look different, but Microsoft is very vague about the path the work takes in becoming part of a Novell/Suse product. Here is their language, and it seems to cover the situation that you describe:

> 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

I agree with Paul that the following stipulation would absolutely cause the contributer to violate section 7 of the GPL:
> 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.

I am also concerned about the section titled "Reservation of Rights" which begins:
> 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.

What if an individual contributor working on Office interoperability discovers that code in Word clearly uses a method that was patented by Novell for WordPerfect? What does it mean that this individual cannot "assert a patent claim" in this case? Is that individual sworn to secrecy about the discovery?

And of course this part, which holds for everyone covered by the agreement, is bothersome as well:
> Microsoft further reserves the right to terminate this pledge and revoke this pledge to You upon the expiration or termination of that certain patent agreement

This makes me imagine a group of lawyers analyzing every bit of code produced by Suse, openSuse and Novell during the term of the agreement (until 1 Jan. 2012) against Microsoft's 7000 patents. Then on 2 Jan, 2012, (or earlier, if for some reason Microsoft "revokes the pledge") the lawsuits against Linux users start.

It also look like users of openSuse who do not buy it from Novell are not covered by the covenant not to sue. Only openSuse developers whose code makes it into a Novell product appear are mentioned in the above document. Here is the definition of "covenanted customer" from here: http://www.microsoft.com/interop/msnovellcollab/patent_agreement.mspx
> “Covenanted Customers” means an enterprise or individual that utilizes a specific copy of a Covered Product for its intended purpose as authorized by a Party in consideration for Revenue (directly or indirectly) to such Party.

So that means normal Suse users can be sued by Microsoft, but at least they won't violate the GPL if they distribute Suse to others ;-)

> We're reviewing the statements and I'll discuss with our legal folks
> what exactly this means for us and what we could do - and then let's
> discuss together whether we want to do it ;-)

That sounds good. Can't wait to hear more about what IT is!

> Andreas

Saill
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