[opensuse-project] Microsoft’s Patent Pledge for Individual Contributors to openSUSE.org

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Paul C. Leopardi

18 Nov 2006 18 Nov '06

02:44

Hi all, Apologies for the cross-post, but after I posted my reply on opensuse-amd64 I realized that it would be more appropriate to post to this list. Essentially, I am concerned that "Microsoft’s Patent Pledge for Individual Contributors to openSUSE.org" is incompatible with the GPL and that it may therefore slow down or halt contributions to openSUSE.org. I am especially concerned about Microsoft's suggested "provision" and want to know whether openSUSE.org will use Microsoft's language when accepting contributions. See http://lists.opensuse.org/archive/opensuse-amd64/2006-11/msg00016.html Best regards --------------------------------------------------------------------- To unsubscribe, e-mail: opensuse-project+unsubscribe@opensuse.org For additional commands, e-mail: opensuse-project+help@opensuse.org

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Andreas Jaeger

18 Nov 18 Nov

07:04

"Paul C. Leopardi" writes:

...

Hi all, Apologies for the cross-post, but after I posted my reply on opensuse-amd64 I realized that it would be more appropriate to post to this list. Essentially, I am concerned that "Microsoft’s Patent Pledge for Individual Contributors to openSUSE.org" is incompatible with the GPL and that it may therefore slow down or halt contributions to openSUSE.org. I am especially concerned about Microsoft's suggested "provision" and want to know whether openSUSE.org will use Microsoft's language when accepting contributions.

See http://lists.opensuse.org/archive/opensuse-amd64/2006-11/msg00016.html

Please bring the complete post over here... 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 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. 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 ;-) Andreas -- Andreas Jaeger, aj@suse.de, http://www.suse.de/~aj/ SUSE Linux Products GmbH, Maxfeldstr. 5, 90409 Nürnberg, Germany GPG fingerprint = 93A3 365E CE47 B889 DF7F FED1 389A 563C C272 A126

Saill White

16:41

On 11/17/2006 11:04 PM, Andreas Jaeger wrote:

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"Paul C. Leopardi" 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: ---------------------------------------------------------------------------- ---------------------------------------------------------------------------- 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:

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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.

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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:

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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:

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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:

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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:

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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

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“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 ;-)

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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 --------------------------------------------------------------------- To unsubscribe, e-mail: opensuse-project+unsubscribe@opensuse.org For additional commands, e-mail: opensuse-project+help@opensuse.org

Paul C. Leopardi

19 Nov 19 Nov

14:36

On Sunday 19 November 2006 03:41, Saill White wrote:

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On 11/17/2006 11:04 PM, Andreas Jaeger wrote:

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"Paul C. Leopardi" 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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To summarize your long scenario: What if MS shipped some code under the GPL, then added some third party code that they received under the GPL, and

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You can reduce the essential elements even further: What if MS tried to impose non-GPL restrictions, on non-MS GPL code, while simultaneously redistributing that GPL code. I admit that the description of my hypothetical example is relatively long. This may explain why your summary is off-base. In my example, Microsoft adds patch B to GPL code A and releases it under the GPL. You as a developer add your own patch ("C") and you want to contribute

[...] On Groklaw, I've added the following reply, which introduces the concept of Microsoft's *poison pill* for openSUSE. http://www.groklaw.net/comment.php?mode=display&sid=20061116103031303&title=Microsoft+pledge+to+openSUSE+developers+still+concerns+me&type=article&order=&hideanonymous=0&pid=505396#c505795 Authored by: leopardi on Sunday, November 19 2006 @ 09:15 AM EST then redistributed, and simultaneously tried to impose non-GPL restrictions. the resulting code (A+B+C) to openSUSE.org. Under the terms of the GPL, your patch must also be licensed under the GPL, and the GPL of A and B must be transferred as well. But the GPL of patch B has its basis in Microsoft's copyright. Therefore your contribution cannot satisfy Condition (ii) because A+B+C *does* include a license (GPL for B) under the intellectual property (copyright for B) of Microsoft, and the GPL itself insists that this license must be transferable. My example has nothing at all to do with patents. It does completely depend on Microsoft's current wording of its "patent pledge" to openSUSE developers. I'm simply trying to point out that a literal and generous interpretation of the language of that pledge implies that the pledge includes a *poison pill* that Microsoft can use to wreck any GPL project as far as openSUSE is concerned. The poison pill is that contributors of GPL code to openSUSE cannot agree to Condition (ii) if there is any possibility that the GPL code contains any code with a Microsoft copyright. So Microsoft can wreck a GPL project for openSUSE simply by contributing to it. ---***--- I also replied to a comment made on my earler post at opensuse-amd64: http://lists.opensuse.org/archive/opensuse-amd64/2006-11/msg00019.html ---------- Forwarded Message ---------- Subject: Re: [opensuse-amd64] OpenSuSE and MS-Novell deal. Date: Saturday 18 November 2006 16:10 From: "Paul C. Leopardi" To: opensuse-amd64@opensuse.org Hi Jim, Thanks. I'll take it point by point below. Best, Paul On Saturday 18 November 2006 15:34, Jim Stalewski wrote:

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OK, I'll try to explain it to you. Read on.

--- "Paul C. Leopardi"

wrote:

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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."

What that means is, if anything contributed to OpenSuSE makes its way into SuSE Linux Enterprise, then Microsoft promises not to try to extort anything from you based on a claim of Microsoft IP being part of whatever you contributed to.

Read it again. It doesn't say just "SuSE Linux Enterprise". It says "SUSE Linux, SUSE Linux Enterprise Desktop or SUSE Linux Enterprise Server". It specifically says "SUSE Linux". And you know as well as I do that that is the same distro as "openSUSE" as at version 10.2.

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Again, that's 1) not laying claim to the existence of M$ IP in Linux, whatever the distro - it's a promise that IF (big if) they find something in Linux that happens to be part of the project you contributed to under the OpenSuSE project, and it's been accepted as part of a SuSE Linux Enterprise release, you won't be a party to any action, and 2) does not affect OpenSuSE or any of the associated projects in any way. Essentially, the change is only for anything that gets into SuSE Linux Enterprise, and it's a promise not to exercise IP "rights." Without this agreement, there is NO promise not to exercise IP "rights" against ANY contributor to ANY OSS project. Duh.

It *does* affect openSUSE. What do think "SUSE Linux" is?

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As to provision ii - that's leaving M$ an "out" to allow them to pursue royalties if you distribute otherwise-licensed-by-Microsoft IP. That doesn't violate the "copyleft." It affirms it - under the GPL, you're not supposed to be able to legally distribute someone else's otherwise-licensed IP. The GPL covers that - and is why things like Macromedia Flash doesn't get distributed in "free" GPL-based distros but have to be obtained through other means (also free, but not GPL.)

It does not say "otherwise-licensed-by-Microsoft IP". It specifically says "any licenses, covenants or any other rights under any Microsoft intellectual property". Read that again. *Any* licenses. *Any* Microsoft intellectual property. "Any licenses" must include the GPL, if applicable, just as "Any Microsoft intellectual property" must include Microsoft copyright.

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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

Yes, but the agreement is NOT for "SuSE Linux AKA OpenSuSE." It is for SuSE Linux Enterprise, which is the commercial Novell distro (server and desktop) that are only available for a fee. Don't try to twist the language to fit your interpretation by equating the rename of the OSS project to the name of the commercial distro.

I am commenting on the patent pledge, not on anything else. There is nothing in the patent pledge which distinguishes between SUSE Linux", SUSE Linux Enterprise Desktop and SUSE Linux Enterprise Server.

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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.msp x

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) 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.

That's where your logic falls apart. If M$ distributes patch B under the GPL, they can't lay claim to any other licensing rights to the IP - the GPL forces them to give that IP to the OSS community. If they try to charge for it, they are in violation of the GPL and are open to legal judgment against them.

It does not matter whether or not Microsoft claims any *other* licensing rights. Condition (ii) says that I as a developer ensure that recipients do not receive *any* licenses under *any* Microsoft intellectual property. As I explain above, this *must* include the GPL, where applicable. So the GPL itself ensures that Condition (ii) cannot apply. So Condition (ii) is not compatible with the GPL. So, as a developer, I cannot agree to Condition (ii) if GPL software is involved, just in case some portion the software might have a Microsoft copyright attached to it.

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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.

Yah, like I'm gonna hire a lawyer to refute the opinion of an omitted non-lawyer in a newsgroup thread. I already pointed out the major flaw in your reasoning.

No you did not. You yourself claim that the GPL overrides Condition (ii). "If M$ distributes patch B under the GPL, they can't lay claim to any other licensing rights to the IP - the GPL forces them to give that IP to the OSS community." More exactly, if Microsoft distributes patch B under the GPL, it comes under the copyleft provisions of the GPL and all recipients receive the GPL for patch B, which is a license under Microsoft intellectual property, since patch B is under Microsoft copyright.

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... 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"?

I have seen nothing to indicate that contributors to the OpenSuSE project will be asked to sign on to or otherwise agree to any kind of "binding contribution agreement" of the sort Microsoft is talking about in the blurb you quoted. Everything I've seen stresses Novell's commitment to the open source community and adherence to its principles.

OK, if there will be no "binding contribution agreement" then why is Microsoft talking about it? Microsoft is one of the two parties to the deal. Are you suggesting that Microsoft does not know what it is talking about? --------------------------------------------------------------------- To unsubscribe, e-mail: opensuse-project+unsubscribe@opensuse.org For additional commands, e-mail: opensuse-project+help@opensuse.org

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Andreas Jaeger
Paul C. Leopardi
Saill White