http://www.fsf.org/news/dont-depend-on-mono

[Rui Miguel Silva Seabra]

Note: this is my last email on this thread

On Tue, Jul 07, 2009 at 10:55:15PM +0200, drago01 wrote:
> >> > What you're explicitly told s that you won't be sued if you do so without the right.
> >> >
> >> > And you have no right!
> >>
> >> If I told you "you can do whatever you want with this and I won't sue
> >> you" or "you have the right to implement this"
> >>
> >> Where exactly is the difference?
> >
> > In one you can be sued (because it's not only Microsoft who can do that in some
> > jurisdictions) and you're doing something which is illegal.
> >
> > In the other you're lawfully using legally granted rights.
> >
> > Where exactly is the difference? I don't know, what do you think?
> 
> In which jurisdictions can somebody sue me because I infringe a US
> Patent of a different company?

Who told you only US patents are involved?

> And no I am not doing something illegal because the company which
> holds the patents stated in a legally binding document that I can
> implement this standards as long as I don't sue them over a patent
> that is covered by the CP.

Yes, you're possibly doing something illegal, in the US it's called
patent infringement.

They just "promised" (and their word is worthless in this regard) not to sue you.

> >> > Further down (in the FAQ, outside the promise) you're told you need to get a
> >> > RAND or RAND-Z license to have the rights.
> >>
> >> Source?
> >
> > It's in the FAQ, which you would know by now if you read the promise and the FAQ
> > instead of trusting Microsoft's employees.
> 
> I did read the FAQ and I could not find what you are referring to so I
> asked. But ok lets quote the FAQ:
> 
> ------------------
> Q: Why does Microsoft obtain patents that apply to specifications to
> which the Community Promise apply? Is that something that others do
> too?
> 
> A: Microsoft invests a significant amount of resources in research and
> development efforts. Like any other company that commits such
> resources to creating new technologies, Microsoft seeks to protect its
> investment by obtaining patents on the resulting innovations. At a
> minimum, patents have value in defending Microsoft with regard to
> patent infringement claims made by others. Many patent owners use
> their patents defensively to protect themselves against third-party
> law suits when they make their patents available under reasonable and
> non-discriminatory (RAND or RAND-Z) terms and conditions (including
> promises like the CP).
> ------------------
> 
> (The only text that mentions RAND or RAND-Z)
> 
> How do you conclude that you need one to get the rights to do anything.

Two things:

 1) they told so in several TC that analysed MS-OOXML, and even *promised*
    to bring these terms to the TCs. Guess what? The promise was worthless.

    they *promised* to get these terms to some companies. Where are the
    terms? Microsoft doesn't even answer anymore.

and

 2) Because, as the *promise* quite clearly tells you so:

	No other rights except those expressly stated in this promise shall
	be deemed granted, waived or received by implication, exhaustion,
	estoppel, or otherwise.

Since they don't give you a license (just promise not to sue) you haven't
got any right. The FAQ subtly reveals there's RAND or RAND-Z terms, and tries
to fool you into believing "not suing" == "granting rights"

In a couple of years Microsoft is bought by Fu-Bar Inc and there goes the
promise down the drain.

> They just try to justifity why the filled patents to begin with.

You think filing software patents is correct? It may be legal in the US and
a few other countries, but while filing a few software patents in the US
may be viewed as a defense strategy in a software patent infected country,
filing them by the thousands, even in countries where they're invalid, but
you'll still have to pay possibly hundreds of thousands of Euros to prove
that.

> > I'm backing it up with what is in the text of the promise, instead of what
> > is in the mouth of marketing agents.
> >
> > Trust whatever you want, but I prefer authoritative texts infinity times
> > more than a marketing agent's tongue.
> 
> No you did not, you are interpreting the text in the way you want.
> "I don't trust MS so it must have holes", while blindly trusting
> anybody is wrong, I don't see the point in making up points that do
> not exits in the text.

And I don't see the point of scorning someone by implying they blindly
mistrust Microsoft. It's not blind mistrust, the reality is filled with
enough fishy things to give the benefit of doubt. Proof is needed.

> Neither in the promise itself nor in the FAQ.
> 
> In order to get 100% clearance consult a lawyer I doubt that any
> lawyer would interprets it the way you do.

Funny enough we tried to get a lawyer team to analyse this problem in Portugal.

Microsoft, as president of the TC, chose the firm (a firm they have ties with,
how un-surpriseing), and you know what they did? They acknowledged our question,
decided to invent a new question, and then answered this new question.

You know what our question was? Whether that promise was a legally valid patent
license grant (in shorter words).

They turned the question into "is the promise valid?" with the result being "in
principle yes, but the courts will have the final word".

Now, if they want to avoid it this hard, do you think it's because they have
honesty in their words?

Rui