Red Hat is wrong to insist Microsoft disavow litigation
Red Hat's legal team has given a half-hearted pat on the back to Microsoft's open sourcing of Linux device drivers this week.
The observation of the Bible's James came to mind: "Out of the same mouth proceedeth blessing and cursing."
But it was Red Hat's parting shot on patents that I found bewildering, not to mention irresponsible:
Over the years, the individual and corporate members of the community have through formal and informal steps made clear that they will not pursue or threaten patent litigation in the Linux area. Patent threats are irreconcilable with the norms and values that are at the heart of Linux. To win the respect and trust of the Linux community, Microsoft should unequivocally disavow such conduct and pledge that its patents will never be used against Linux or other open source developers and users.
First of all, I'm not sure this is true. I don't remember IBM, Hewlett-Packard, Oracle, or even Red Hat declaring once and for all that they will never, ever sue open-source developers over patent infringements.
Second of all, why would they? Why would you ever conclusively close the door on actions that might well be required to legitimately defend your interests? This seems like the height of fiduciary irresponsibility in the hopes of scoring political points.
What if I were to rip off every line of code Red Hat writes tomorrow? What if I persisted in doing so, willfully violating its patents? Or what if Oracle did? Has Red Hat essentially given me a writ of indulgence to allow me or Oracle to do so?
No, it hasn't. And no, it shouldn't. The spirit of Red Hat's comment--compete on the basis of technology and execution, not patent threats--is absolutely correct. But the course of action suggested by Red Hat's legal team for Microsoft is a double standard that no company or individual should follow.
Follow me on Twitter @mjasay.
Matt Asay brings a decade of in-the-trenches open-source business and legal experience to The Open Road, with an emphasis on emerging open-source business strategies and opportunities. Matt is vice president of business development at Alfresco, a company that develops open-source software for content management. He is a member of the CNET Blog Network and is not an employee of CNET. Disclosure. You can follow Matt on Twitter @mjasay. 
If you're truly not religious, it's just a book. No need to get your panties in a bunch over someone quoting from it.
Since you choose to practice your religion in publid and in a forum, the least you can do is to afford others the same courtesy as you have just demanded.
I don't expect you to understand what I just said. because if you could, you would not have written what you did.
I agree with your basic point that it's not reasonable to ask that Microsoft disavow asserting patents under any circumstances. However, "What if I were to rip off every line of code Red Hat writes tomorrow? " seems a poor example given that the code in question is open source. Microsoft (or someone else) could certainly use that code in a way that violates various open source licenses but it's hard to see how they would use it in a way that violates Red Hat's patents. (Perhaps not absolutely impossible since patents and copyrights are sifferent things with different rules but it would seem unusual and explicitly against the terms of at least some open source licenses.)
Red Hat has absolutely made the promise they are challenging MS to also make.
http://www.redhat.com/legal/patent_policy.html
"Our Promise:
Subject to any qualifications or limitations stated herein, to the extent any party exercises a Patent Right with respect to Open Source/Free Software which reads on any claim of any patent held by Red Hat, Red Hat agrees to refrain from enforcing the infringed patent against such party for such exercise ("Our Promise"). Our Promise does not extend to any software which is not Open Source/Free Software, and any party exercising a Patent Right with respect to non-Open Source/Free Software which reads on any claims of any patent held by Red Hat must obtain a license for the exercise of such rights from Red Hat. Our Promise does not extend to any party who institutes patent litigation against Red Hat with respect to a patent applicable to software (including a cross-claim or counterclaim to a lawsuit). No hardware per se is licensed hereunder.
Each party relying on Our Promise acknowledges that Our Promise is not an assurance that Red Hat's patents are enforceable or that the exercise of rights under Red Hat's patents does not infringe the patent or other intellectual property rights of any other entity. Red Hat disclaims any liability to any party relying on Our Promise for claims brought by any other entity based on infringement of intellectual property rights or otherwise. As a condition to exercising the Patent Rights permitted by Our Promise hereunder, each relying party hereby assumes sole responsibility to secure any other intellectual property rights needed, if any."
Authors who take the time to post ill-informed rants rather than to do a cursory Google search and see if they actually have the basic facts of their argument right are of course a staple of Internet journalism, but I tend to expect better out of CNet. I usually agree with Matt's pragmatic approach to open source, but I really don't see the pragmatism in his suggestion here, which seems to be that it's a good idea to do business with a company that won't promise not to frivolously sue you into financial ruin.
However, if you make a promise to quit drinking AND you let the other party know it's a good idea to also stop drinking if they'd like to be accepted into the groups you're in, while not obligated to do so, it would be a very good idea.
Matt: There is a HUGE difference between Red Hat's "Line's of Code" and anyone's patents. Line's of Code are covered by copyright law, which ties into licenses and contract law. In fact Oracle "ripped off" a great deal of Red Hat's code and had every right to do it, similar to how CentOS "ripps off" Red Hat's code. They still stay within the bounds of what the license allows. Now Red Hat has the right to have code that is not open sourced, though I do not think they distribute any non open sourced code (I could be wrong about that).
Patents are a much different a MUCH LARGER issue. I can independently come up with an idea that happens to be patented by another company. I am then in violation, even if I do not realize it. That cannot happen with copyright. Software patents only came about because of a court decision in this country. No one debated the pros and cons they would have on the industry, and truth be told they have had MANY cons. As in the comment above Red Hat has assured they will not leverage these patents against any open source projects, and while I do not think Microsoft will do the same it is perfectly reasonable for a company that has built a business on open source and taken those steps themselves to ask that such action be taken by Microsoft. It is not irresponsible, it is in fact a request MS should receive from as many directions as we can muster.
-jef
My understanding of the definition of the term "laypress" involves reference to intended audience and not the authors credentials as a subject matter expert. That is to say, the laypress write article for the general public and not articles in professional journals or other places where the intended audience is made up primarily of subject matter experts. CNet isn't a law journal, this is a laypress media outlet. And thus Matt is a acting as a member of the laypress. Basic journalistic standards need to apply. Now if you want to hold Matt to an even higher standard because he can lay claim to the title of subject matter expert..feel free. I won't stop you.
-jef
Microsoft is trying to use this against their customers, whereas IBM, Redhat, and a few others (I am unsure about HP or Oracle) have published reasonably solid (legally speaking) promises not to sue "you" unless you sue "me" or in other ways violate the applicable license and refuse to resolve this before court.
Matt,
Do you not realize there is a difference between patents and copyright? If you ripped off every line of Red Hats code you would be in violation of copyright law.
http://news.cnet.com/2100-7344_3-5296787.html
The real question is: is it too much to ask for Microsoft to release the list of patents they claim Linux violates and that they are forcing Linux-using companies to license? Are you going to sit there and defend this unethical business practice? Why is it that when Microsoft pushes hard on the boundaries of what is legal in business, the peanut gallery of industry "pundits" (aka: those who can't) come out en masse to defend them?
Finally, I sure hope the people at Alfresco know their vice president of business development doesn't understand the difference between copyright and patents. You'd think that would be a basic skill for someone who claims to have 10 years "business and legal" experience dealing with open source.
- by bluemist9999 August 20, 2009 7:27 AM PDT
- I have one major concern with promises. A promise is only as valid as the integrity of the entity which issues the promise. To what extent do you trust any company to honor a promise which goes against its interests (i.e. getting license fees for patents)?
- Like this Reply to this comment
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(22 Comments)To what extent is a promise legally enforceable?