The Software Freedom Law Center has declared a pledge from Microsoft Corp not to sue open source developers for patent infringement “worse than useless” and “an empty promise” that cannot be relied upon.
In an open letter to free and open source software developers the SFLC’s chief technology officer, Bradley Kuhn, said that the pledge has little value and that developers are no safer from Microsoft patents now than they were before.
Microsoft’s promise not to assert its patents against individual open source developers was an off-shoot of its recent patent covenant agreement with Novell Inc. These are individuals who are creating code, contributing code, they’re not being paid for that code. They’re not creating it as part of their job, explained Microsoft general counsel, Brad Smith at its announcement.
That definition relied on a romantic notion of open source developers that is not in keeping with the majority of developers working for a large vendor or running their own businesses.
SFLC’s Kuhn pointed out that being unsalaried is not the only limitation of the pledge: The patent covenant only applies to software that you develop at home and keep for yourself; the promises don’t extend to others when you distribute. You cannot pass the rights to your downstream recipients, even to the maintainers of larger projects on which your contribution is built, he wrote.
And it could be revoked at any time. Microsoft has explicitly reserved the right to change its terms at any time in the future. A developer relying on the pledge could wake up any day to find it revoked, he added.
It’s worse than useless, as this empty promise can create a false sense of security. Don’t be confused by the illusion of a truce; developers are no safer from Microsoft patents now than they were before, Kuhn concluded.
The SFLC is still chewing over whether the deal to protect Novell’s customers from Microsoft’s lawyers is in keeping with the GNU General Public License. Both Microsoft and Novell maintain that it is, and will be hoping for a better response than the developer pledge received.