Microsoft legally promises not to sue open source developers

Microsoft' Patent Pledge for Open Source Developers says it won't sue if they don't sell.

As part of the agreement Microsoft has struck with the European Commission to offer a ballet screen for browsers, Microsoft has issued what it calls the "Patent Pledge for Open Source Developers." The pledge tells open source developers that Microsoft won't sue them for developing open source software for its flagship products as long as they are not selling their software.

According to a statement made by Microsoft, this promise covers Windows, Windows Server, Office, Exchange, and SharePoint. Brad Smith, Senior Vice President and General Counsel, said Microsoft believes its actions today represent "the most comprehensive commitment to the promotion of interoperability in the history of the software industry."

That seems a bit hyperbolic to me, given that the free open source software (FOSS) concept would be the most comprehensive commitment to interoperability in software's history. And even when accounting for the fact that Microsoft is a proprietary vendor, Smith overlooks minor blips in software history like the open software movement that started 20 years ago (guess he's never heard of a little company called Sun Micrososystems and all-things Java.)

Here is the entire text of the Patent Pledge as issued on Dec. 16.

Microsoft irrevocably promises not to assert any Microsoft Necessary Claims against you as an open source software developer ("You") for making, using, importing, or distributing any implementation of the Technical Documentation ("Covered Implementation"), subject to the following.  This is a personal promise directly from Microsoft to You, and You acknowledge it is a condition of benefiting from it that no Microsoft rights are received from suppliers, distributors, or otherwise by any other person in connection with this promise.  To benefit from this promise, you must be a natural or legal person participating in the creation of software code for an open source project.  An "open source project" is a software development project the resulting source code of which is freely distributed, modified, or copied pursuant to an open source license and is not commercially distributed by its participants.  If You engage in the commercial distribution or importation of software derived from an open source project or if You make or use such software outside the scope of creating such software code, You do not benefit from this promise for such distribution or for these other activities.

To clarify, "Microsoft Necessary Claims" are those claims of Microsoft-owned or Microsoft-controlled patents that are necessary to implement the Technical Documentation.  “Technical Documentation” means the Microsoft technical documentation for protocols located at the following website:  [TO BE DETERMINED]. Where a software development project has in all other respects the characteristics of an open source project, distribution among the participants of that project of source code developed by natural persons under an employment contract or by natural or legal persons under a contract to develop is not considered to be commercial distribution, and that software development project does not lose its character as an open source project merely because such distribution takes place among participants.  Software is deemed to be commercially distributed within the meaning of this promise when the distributor derives revenues in connection with the distribution, such as from subscriptions, updates, or user-based connection fees or from services that are contractually required for a customer to obtain the current version and/or updates of the software product in question.

This promise is not an assurance either (i) that any of the Microsoft-issued patent claims cover a Covered Implementation or are enforceable or (ii) that a Covered Implementation would not infringe on patents or other intellectual property rights of any third party.  No other rights except those expressly stated in this promise shall be deemed granted, waived, or received by implication, exhaustion, estoppel, or otherwise.

With an agreement in place to offer Europeans a choice of browsers for a period of five years, the EC has basically dropped its browser case against Microsoft, but that doesn't mean Microsoft is completely off the hook. It will review Microsoft's compliance over a two-year period. Should the EC decide that Microsoft is not holding up its end of the bargain, the EC could issue a crippling fine of up to 10% of Microsoft's total "annual turnover" and it could do so "without having to prove any violation of EU antitrust rules," it said.

Wow. It doesn't seem right to me that the sole decision of whether Microsoft is conforming rests in the EC's hands, and it doesn't have to find that Microsoft is violating any specific antitrust rules to slam it with another giant fine. ( In February, 2008, The EU fined Microsoft $2.2B for antitrust violations.)

The EC specifically notes that the "Patent Pledge for Open Source Developers" (along with more documents intended to make Microsoft's documentation easier for developers to use) doesn't mean it won't continue to hold Microsoft's feet to the fire. The EC says:

"In July 2009, Microsoft also made proposals in relation to disclosures of interoperability information that would improve interoperability between third party products and several Microsoft products, including Windows, Windows Server, Office, Exchange, and SharePoint (see MEMO/09/352 ). After intensive discussions with the Commission, Microsoft is today publishing an improved version of the undertaking and related documents (for example a warranty agreement and a patent licence agreement) on its website. The Commission welcomes this initiative to improve interoperability. Even though it remains informal vis-à-vis the Commission, Microsoft’s public undertaking offers assurances to third parties that can be privately enforced. The Commission will carefully monitor the impact of this undertaking on the market and take its findings into account in the pending antitrust investigation regarding interoperability "

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