Freedom - from Lawyers
By webmink on Dec 02, 2005
I read with great interest the great analysis Andy Updegrove has just published of the six observations I made about Microsoft's flawed non-assert covenant over their MS Office file format. With some legal reflection Andy finds 3 points to be acceptable and 3 points to point to flaws in the covenant. But most importantly, he finds that the covenant strongly implies that the patent grant in the covenant is contingent on making no changes to Microsoft's specifications. That bodes ill for a standardisation activity. The one point he doesn't comment on is the question in the footnotes about whether the covenant makes GPL implementations possible. That's still not clear to me.
Of course, all that speaks to the underlying point I've made in several postings here. Open source development can in some ways be characterised by the idea of developers being freed from the need to hire a lawyer. Corporate developers have access to corporate legal advice, but for an individual developer to get decent legal advice on a regular, incremental basis is next to impossible as it's way too costly. That's why OSI exists - to make sure that developers don't have to hire a lawyer to pick a license. And that's why license proliferation is an issue - there are now so many licenses that it's reaching the stage where one needs legal advice to choose between them.
So that's the defect I see in Microsoft's covenant. It's not certain enough. Sun's covenant on ODF aimed to provide developer certainty - we'll initiate no first claims against ODF implementations that implement specs OASIS approves up to and including the point (which I hope will never come) where we disengage from the OASIS OpenDocument TC, full-stop (or "period" to my American friends). No "essential claims". No restrictions to our input. No requirement for completeness or conformity. No requirement to use our software. And, most importantly, probably no need to go get anyone's advice.
Microsoft's covenant, on the other hand, leaves tricky questions that need someone like Andy to advise on. Developers considering it need to seek legal advice. And that's the DNA marker in all areas of open source for something that's FL/OSS hostile. The real freedom open source embodies is lubricated by (with all due respect to the legal profession) a freedom from lawyers for software developers.