Software Freedom Conservancy Shares Thoughts on Microsoft Joining Open Invention Network's Patent Non-Aggression Pact (sfconservancy.org)

Earlier this week, Microsoft announced that it was joining the open-source patent consortium Open Invention Network (OIN). The press release the two shared this week was short on details on how the two organizations intend to work together and what does the move mean to, for instance, the billions of dollars Microsoft earns each year from its Android patents (since Google is a member of OIN, too.) Software Freedom Conservancy (SFC), a non-profit organization that promotes open-source software, has weighed in on the subject: While [this week's] announcement is a step forward, we call on Microsoft to make this just the beginning of their efforts to stop their patent aggression efforts against the software freedom community. The OIN patent non-aggression pact is governed by something called the Linux System Definition. This is the most important component of the OIN non-aggression pact, because it's often surprising what is not included in that Definition especially when compared with Microsoft's patent aggression activities. Most importantly, the non-aggression pact only applies to the upstream versions of software, including Linux itself.

We know that Microsoft has done patent troll shakedowns in the past on Linux products related to the exfat filesystem. While we at Conservancy were successful in getting the code that implements exfat for Linux released under GPL (by Samsung), that code has not been upstreamed into Linux. So, Microsoft has not included any patents they might hold on exfat into the patent non-aggression pact.

We now ask Microsoft, as a sign of good faith and to confirm its intention to end all patent aggression against Linux and its users, to now submit to upstream the exfat code themselves under GPLv2-or-later. This would provide two important protections to Linux users regarding exfat: (a) it would include any patents that read on exfat as part of OIN's non-aggression pact while Microsoft participates in OIN, and (b) it would provide the various benefits that GPLv2-or-later provides regarding patents, including an implied patent license and those protections provided by GPLv2 (and possibly other GPL protections and assurances as well).

Comments

That would mean all patents. Thousands of packages

[raymorris]

It DOES cover thousands of packages. I don't know the exact number, but maybe 20,000 or so software projects are included.

I could write a few lines of code implementing virtually any patent in the world and open source it. Therefore, abandoning all patents implemented in ANY open source project is effectively equalivent to "abandon all patents". If that's what you mean, that's a simpler way to say it.

That's essentially the problem with GPLv3, by the way. It circuitously requires giving up patents in a way that isn't obvious on first reading. That's one reason many projects stick with GPLv2.

The list of covered projects can be found here:

https://www.openinventionnetwo...

It's essentially everything included in any major Linux release.

Re:GPL is not freedom

[ShanghaiBill]

So... you would rather they released code under a licence that lets licensees deny the same freedoms bestowed upon them when they release a work that uses it?

In many cases, yes. The GPL is often appropriate for full applications. BSD is often better for components, libraries, and interfaces, when you want wide adoption, even by proprietary vendors. TCP/IP (i.e. "The Internet") is a good example of this being successful.

Even the FSF has conceded that the standard GPL is often inappropriate for libraries and components, so they have the "Lesser" LGPL for that purpose.

GNU GPLv3 ensures software freedom

[jbn-o]

This issue has to do with patent law, not copyright law. So it's important to look at how Microsoft uses patent law to appear to be conciliatory while retaining considerable power. Microsoft has already demonstrated a preference for what Richard Stallman rightly calls "pushover" free software licenses—non-copyleft licenses such as the new BSD and MIT X11 license. Microsoft picks such licenses not for some inchoate disagreement with the GNU GPL as you stated but because those licenses don't stop Microsoft from doing more of what they did with their patent licence for .NET core. That license is so limited one can't do valuable things such as sharing code across projects and modifying code in ways we find useful to us without risking losing a patent infringement lawsuit from Microsoft.

In Microsoft's patent license for .NET core, "you're only protected if you're distributing the code "as part of either a .NET Runtime or as part of any application designed to run on a .NET Runtime"". So if you add any of the code to another project, then you lose protection and MS reserves the right to use their patents against you.". The GNU GPL, by contrast, would have protected you from this, allowing you to use the covered code in another project and retain your software freedom.

As the article also points out, Microsoft's patent license only applies under very limited conditions, "the protection only applies to a "compliant implementation" of .NET. So if you want to remove some parts and make a streamlined framework for embedded devices, then your implementation won't be compliant and the protection doesn't apply to you."

We don't know for sure if one would gain an implicit patent license with code distributed under the MIT X11 license but we do know one would get license to do as they need or want under the GNU GPLv3 because the text of the license says so:

Code distributed under the GNU GPLv3, comes with a patent grant which basically says the contributors can't use their patents against the users for exercising the freedoms granted in the licence:

([quoting the GNU GPLv3] section 11)

Each contributor grants you a non-exclusive, worldwide, royalty-free patent license under the contributor's essential patent claims, to make, use, sell, offer for sale, import and otherwise run, modify and propagate the contents of its contributor version.

The language of GPLv2 section 7 applies here as well.

So if you're looking to use your software freedom, pick a license that does the job of ensuring those rights will be there when you need them by spelling out those rights explicitly; right now that's the GNU GPLv2 or later. I suspect that it is this consideration for users, plus Brad Kuhn's keen knowledge of the GNU GPLs, and practical value in licensing compatibly with the Linux kernel that lead him to recommend licensing under GNU GPLv2 or later.