FSFE Newsletter

simo simo.sorce at xsec.it
Tue Jan 8 16:23:30 UTC 2008

On Tue, 2008-01-08 at 15:17 +0000, Rui Miguel Silva Seabra wrote:
> On Tue, Jan 08, 2008 at 09:53:59AM -0500, simo wrote:
> > 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
> > world...
> Can counterpoint the verbalization of facts with counter facts? Because
> the result recognises Microsoft's software patents.
> Software patents are invalid in Europe so...

They should be, yes, but that can only be established for each patent in
front of a court.

> > > > 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.
> As I said in another email, what I'm question in my remark is the logic
> of the statement.

The statement logic is oblivious to this agreement logic.
I keep saying that you are just mixing apples and oranges here, trying
to mud waters with a topic (OOXML) that raises hard feelings, but has
nothing to do with this case.

> > > > 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!
> I am not so confident as you are in the wording.

Well, who sign the agreement need to be concerned about the wording,
unless you are thinking of signing an agreement with the PFIF to get
access to the documentation it doesn't really matter if you are
confident or not.

At most the single developer that sign the agreement is screwed.

I am pleased you are concerned with Samba Developers future, but I guess
we can manage to understand, get professional legal counsel, and decide
on our career by ourselves :-)

> > > > > 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.
> Oh really? Counter with facts please:

Can you get your facts right before that please?

>  * EC or even CoJ can't affect juridisctions outside EU, namely the USA.

They do not affect jurisdictions, that's why they can't rule patents
invalid, but they can force MS to stick to the agreement or fine them.
The only option for MS to not stick to the agreement and avoid fines is
to exit completely the EU market. You may understand this is a very
compelling reason to agrre with the EU on how to license stuff

>  * EC or even CoJ can affect the juridisction of European Union.

The EC can't, the EC can propose directives that need to be approved by
the parliament and the council. The EC can execute according to
directives, that's the main job of the EC.
The CoJ can resolve issues and enforce European law, but nothing more.

>  * Software patents are against the letter of the law

I believe this to be true. But you know very well it is not so clear cut
you can assert it easily at legal and political levels. It's more
complex than that.

>  * in the current context, there are only software patents

"Software Patents" is not a legal or even a strong technical term.
I agree with the substance, but again the matter is more complex than

>  * results recognise said software patents

>From my POV the EC already recognizes *every* software patent as valid,
what does this agreement changes in that regard ?

> > > > 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.
>                ^^^^^^^^^^^^^^^^^^^^
> Not exactly, because they recognise and legitimise them by taking them in
> account. Toothless. So why rejoice?

See above, I don't get why you are so concerned about this specific
agreement. The software patent issue is a broader one, and must be
fought at a different level. Until the law is made clear again, I see no
value in cherry-picking on EC actions around this point, we all know the
(un)official EC position.

> > > 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.
> Irrelevant strawmen argument, since for that you need to address at WIPO.

For this agreement WIPO has nothing to say, I am not sure what you are
claiming here. An antitrust ruling is not about changing laws its just
about executing and enforcing existing laws ...

> No juridisction over USA means it can only affect EU.

Jurisdictions here are not relevant, an agreement between 2 parties is
binding in any jurisdiction unless it is against the law in some or some
jurisdictions are explicitly excluded, AFAIK, IANAL.

>  The result is
> disatreous in EU as it recognises validity of software patents.

I am not sure I can follow you, you seem to short-circuit way too many
facts, and make so many simplifications that is is honestly difficult to
follow your reasoning.

I'd say you are seeing a storm in a glass of water.

> > > > 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.
> They can have absolutely no regard at all since they are invalid. What
> they did is have them in accoun => recognising => legitimizing themt

Man, come on, the EC has no power to judge a patent valid or invalid,
only courts can.
So the EC *must* give MS the benefit of doubt and assume their patents
are valid. It's up to the defendants to challenge those patents in
court, would Microsoft decide to try and enforce them.
This is with the *current* legal framework AFAIK and IANAL again.

The only thing the EC had the power to choose was how to make MS license
them. We are not completely satisfied on this point, but the situation
could have been a lot worse.

> > Microsoft put the
> > patents on the table and the EC options were around how to make MS
> > license them.
>  => recognising => legitimizing them

repeating your mantra will not necessarily make it more true, or
relevant ... try telling me something new, I got your position already.

> > Ignoring them would have meant leaving MS carte-blanche on how to
> > license them.
> I didn't say ignore. It should outright exclude them in the valid
> jurisdisction.

? YANAL right ?

> > > > 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?
> It is you who claim that. I don't claim that *anywhere*. In fact I claim
> they legitimise them.
> I don't understand how you can give such a blind-folded benefit of
> doubt.

Don't think I am pro software patents, but the situation is more complex
than the simple statement you keep repeating.

I have been an activist against software patents in Europe, in the past,
when the FFII was able to achieve the extraordinary result it achieved
in the EU Parliament, I know how things are set up, which players were
on which side, and more or less what the situation still is.

What I am saying is: the EC is not a single body, there are many people
with different political views in there, but it is true that in general
it has been pro-software patents in the past.

What I think is: I see absolutely no difference after this ruling wrt EC
stance on software patents, therefore I don't think their position on
this point is a big deal or changes the landscape in any sensible way.

I just think you are pumping up way too much a legitimate concern, but a
very minor one in the specific case.


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