12.03.06

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This Covenant Will Self Destruct in…

Posted in Intellectual Monopoly, Law, Microsoft, Patent Covenant, Patents at 8:01 pm by Shane Coyle

Besides the fact that the MS Covenant has been termed worse than useless, Pamela Jones at Groklaw poses an excellent query: What happens after the five year term?

As we have come to expect of PJ at Groklaw, she covers the intricacies of the covenant in depth, reviewing aspects of the Microsoft Patent Pledges – both to “Hobbyists” and OpenSUSE developers, and raises excellent questions regarding the wording of the agreement, including confusing terms such as “captured patents” vs “covered patents” :

But here, we’ll be looking at the programmers who are contributing code to others, specifically to SUSE, both the paid products and the openSUSE project. We may still be able to find a few programmers left who are willing to consider doing that somewhere on the planet. We will start with the “Patent Cooperation Agreement – Microsoft & Novell Interoperability Collaboration”, the Covenant with Customers (ha ha). I will mention in passing that the media is misinterpreting or at least overstating Richard Stallman’s remarks about the agreement and GPLv2′s section 7, in my opinion. There is no “blessing” of this agreement to date that I am aware of, and I think I’d be aware of it if it happened.

This is an especially important read for developers, including OpenSUSE developers, since their are some potential limitations to the covenant. Specifically, as the covenant is worded around ‘customers’ and includes wording to define covered products as those which Novell has derived revenue from, OpenSUSE developers may have to buy SUSE to continue their coverage for their own code!

[editors note: sorry for the blockquote within a blockquote, this is an excerpt from patent cooperation agreement in groklaw article, provided to give PJ’s analysis context.:]

Also, the foregoing covenant will apply to customers’ and developers’ use of copies of Covered Products distributed by Novell that are in development (including, without limitation, work in process; trial, alpha, beta and release candidate versions; and other versions of products intended for but not yet generally released for Revenue on a commercial basis), even if Novell does not receive Revenue in connection therewith, provided that such copies are solely provided for development, testing or evaluation purposes and any support thereof, if any, continues for no longer than one-hundred eighty (180) days from distribution. In any case, the covenant granted pursuant to this paragraph shall expire as to such customers and developers One-Hundred Eighty (180) days from distribution to such covered customers and developers.

So I think that is saying that developers are covered while they work on code that isn’t released yet, but once it is released by Novell, they’d have to buy it by 180 days if they wanted coverage, because it stops being covered then. If I were a developer, I’d want to ask my lawyer about that, because it sounds to this nonlawyer like the poor doob could write code for Novell and not be able to even safely use it after 180 days, let alone distribute it to others. Clearly this is not a normal GPL atmosphere.

As Pamela suggests, anyone who is still considering working with and contributing to Novell/SUSE, you would be best served to consult with an attorney personally to assess your own interests in this deal, since Novell has only thought of their own interests to date.

I personally suggest that you consider no longer associating with Novell.

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