New covenant published

Tom "spot" Callaway tcallawa at
Wed Dec 23 19:22:14 UTC 2009

On 12/23/2009 02:10 PM, Alex Hudson wrote:
> On 23/12/09 18:58, Tom "spot" Callaway wrote:
>> On 12/23/2009 01:56 PM, Alex Hudson wrote:
>>> Can I ask on what grounds? Is the patent license insufficient, or is
>>> there some other problem?
>>> It's difficult to fix things if we don't know what's broken.
>> The most obvious issue is that it does not cover Distributors besides
>> Novell.
> I thought that was the whole reason a new covenant has been issued, so
> that people other than Novell could distribute it. Looking over it, I
> don't really see where any distinction between Novell and anyone else is
> made.

The new "covenant" is specifically worded to apply only to end-users,
and makes the following noteworthy distinction:

"an entity or individual cannot qualify both as an End User and a
Distributor for use of the same copy of a Moonlight Implementation."

It grants no patent rights to Distributors, aside from those already
granted to Novell in the previous covenant. What it practically means is
that once you distribute, you stop being considered an "End User" by
Microsoft, and are no longer protected by this "covenant" (unless you're
Novell or Microsoft).

> It would be useful to have some response from legal people about the
> exact issues which remain. It seems to me highly unlikely that problems
> are going to be resolved unless the problems are made clear; and the
> movement on this issue appears to be in the right direction.

It is very very unlikely (I'll go so far as to say impossible) for any
Red Hat Legal people to discuss this issue in unprivileged forums.
Lawyers rarely like going on the record, especially when patent concerns
are involved, because any statements that they make in public could be
used later to reflect varying degrees of intent in a patent trial,
triggering possible issues such as treble damages.

I would encourage interested parties to review Rob Tiller's slides from
SCALE 7x, to gain a better understanding of the complexities and risks
around software patents:

(Yes, the irony of a talk on software patents being offered in MP3
format is not lost on me.)

If Microsoft was serious about encouraging adoption of the
Silverlight/Moonlight technology in FOSS, they would do so with an
unrestricted patent grant for all end-users and distributors for code
under any FOSS license (not just some).

They are clearly unwilling to do that.

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