FSFE Newsletter

simo simo.sorce at xsec.it
Tue Jan 8 14:53:59 UTC 2008

On Tue, 2008-01-08 at 09:37 +0000, Rui Miguel Silva Seabra wrote:
> On Mon, Jan 07, 2008 at 10:39:08PM -0500, simo wrote:
> > > On Mon, Jan 07, 2008 at 03:22:35PM +0000, Ciaran O'Riordan wrote:
> > > > Rui Miguel Silva Seabra <rms at 1407.org> writes:
> > > > > On Mon, Jan 07, 2008 at 12:40:18PM +0000, Ciaran O'Riordan wrote:
> > > > >> Sure.  What project/initiative/activity do you think FSFE and FFII should
> > > > >> coordinate on?
> > > > >
> > > > > The main issue, of course, software patents.
> > > > 
> > > > I was hoping for something a lot more specific.
> > > 
> > > It's impossible to be more specific, since the fact that there has been
> > > little coordination has resulted in *no* critic about the result of the
> > > case in terms of software patents from FSF Europe.
> > 
> > You can't really seriously argue about (anti)patents in an anti-trust
> > case.
> Sure, we should just cave in to the «if there are patents involved,
> forget anti-trust» mantra that EC has shoved upon us.

I never heard such a mantra, must have been living in a different

> > > Even Samba (Jeremy) is now using a foundation (made up by SFLC) on the US
> > > to get to the documents in an NDA fashion. NDA development is bad enough
> > > on hardware drivers. On formats and protocols it is a poison pill.
> > 
> > Actually, this is not right.
> > Having the docs is definitely better than having none, even under NDA.
> Having OOXML as it is must be definitly better then.

For implementing OOXML sure, but don't try to muddle the waters here
please, OOXML *is not* a standard and we are not speaking of making CIFS
protocols a standard, so don't mix things this agreement has nothing to
do with the OOXML standardization process.

> > Remember that the source code will be available, everybody can read it
> > and even write documentation reading the source code.
> Under NDA development it is frequent that you can't reveal information
> through "readable" function names or variables, or even comments
> explaining the limits of certain values, etc...

Rui, *please*, can you read the agreement?
I am a bit offended you think Samba Team members are so stupid to fall
in such traps, actually we changed the original agreement wording just
to avoid things like that, read it!

> > > The EU is happy-happy joy-joy[1] about the whole charade where it
> > > has granted Microsoft the right to demand royalties for it's software
> > > patents to Free Software users.
> > 
> > The EU has no such granting power, patent law allows Microsoft to ask
> > for royalties.
> And EC recognises software patents, Q.E.D.

Well this is your mantra, not mine, I guess we just disagree here, time
will tell.

> > You should remember that before the conclusion of the
> > case MS had much stricter terms to access the documentation and a patent
> > license with per unit royalties was unavoidable. Now we get a flat fee
> > for the docs and we are not required to sign any patent license.
> Of course not, its at your own risk to be prossecuted or not, because
> there's nothing protecting you or your customers from that.

Like before, no difference at all.

> EC case is only reasonably acceptable considering USA laws.

Which is important because we do not develop and distribute in a vacuum.
A ruling that would matter under EU *only* law, would have been
COMPLETELY useless as Free Software is distributed everywhere we *need*
to be ok under any possible jurisdiction, and this deal made MS accept
rules that work in the US as well.

> > True the EC could have gone as far as imposing MS to provide even the
> > patent license for a flat fee, or, in theory even oblige MS to grant a
> > license to anybody for free. But we couldn't get that far this time.
> Totally beyond the point. They should not have recognises Microsoft's
> software patents.

They were not fighting a software patents battle, period.
An antitrust case is not about recognizing software patents, true they
could have imposed different licensing methods, but they can't rule
patents valid or invalid during an antitrust case. Microsoft put the
patents on the table and the EC options were around how to make MS
license them.
Ignoring them would have meant leaving MS carte-blanche on how to
license them.

> > I can't see this big patent problem you see, the fact that a certain
> > part of the establishment is ok with software patents is not new at all,
> > we all know that.
> > I honestly don't think this case changes any balance in that respect.
> Of course not, other than EC recognising software patents, its virtually
> unfelt by Microsoft.

So the EC was previously not recognizing them and now it does? If it is
so, please show me documents were the EC were claiming patents on
software were not valid, then I will accept to consider this a change in
positions and a change worth of consideration.


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