One thing I really like about this article is they hit one of the mono apologists’ favorite distortions right out of the gate:

It’s true that all software patents are a threat to developers—but that doesn’t mean that all software patents are equally threatening. Different companies might have patents that could be used to attack other languages, but if we worried about every patent that could be used against us, we wouldn’t get anything done. Microsoft’s patents are much more dangerous: it’s the only major software company that has declared itself the enemy of GNU/Linux and stated its intention to attack our community with patents.

Now I’ve been preaching this gospel since Day 1. It is pure dishonesty to pretend like every company present the same risk and hostility to Linux, Free Software, or Open Source that Microsoft does. Microsoft’s hostility and desire to destroy Linux is not the fevered imaginations of wild-eyed zealots. It is documented. It is proven. It is inarguable.

Now, you may want to advance the idea that Microsoft has changed. That is a possibility, sure – but it is not documented, proven or inarguable. The safe and sane position towards Microsoft is suspicion and wariness. Microsoft made it so, not wild-eyed zealots. It also becomes on open question on what type of change it is.

You may also want to advance the idea that Microsoft’s hostility is overstated. That is a possibility, as well – but you run into a real problem with objectivity there. That is, there is no way for us to know the limits or true intention of Microsoft’s hostility. We can only know that we have more proof and evidence for Microsoft’s hostility to Linux, Free Software and Open Source than any other other entity in existence – with the arguable exception of SCO – and that we have evidence they systematically lie and disguise their intent.

What you can not honestly do, though, is to pretend like Microsoft does not have a long and documented history of unfair, illegal, and highly questionable tactics against Linux, Free Software, Open Source and even commercial competitors. You can also not pretend like it is “ancient history” or that the very same people that participated in such tactics are not still active within Microsoft.

Nonetheless, it seems if you find any discussion of Mono you will eventually run into some Mono/Microsoft apologists pretending like doubting Microsoft is irrational, if not downright cheese-eating surrender monkey cowardice. You know those hillbillies that handle snakes because they think Jesus will protect them? They aren’t brave, they are deluded. You know those guys that don’t handle snakes? They aren’t cowards, they are rational.

Offering solutions

Another nice thing that the FSF has done is to offer up an acceptable solution, as well as an invitation to Microsoft to work together to reach a real and inarguable solution.

There is an interesting point within: just as “Only Nixon could go to China”, only the FSF has the credibility to assure people that Microsoft’s offerings are valid. Novell does not have that credibility. Team Mono does not have that credibility.

When you mock the core principles of Free Software, embrace “pragmatism”, and compromise your ethics a little bit here and a little bit there, you might profit in the short term; but long term, when you go to make a stand and ask people to trust you, things are different then. In one light that is unfair, but the reality is that is what happens when you enter into anti-community and secretive deal and take $400+ million dollars from Microsoft.

Oh, and continuing to fight the FSF or rms with whatever flavor of scandal or slander you can grab doesn’t add to your credibility either. Just in case you thought it did. No, it only spreads the taint of your lack of credibility. Like a single rotten apple spoiling the barrel, so does one dishonest hateful apologist spoil a “movement”.

Sadly, this works on both sides. Which is why my arguments are always only the Purest of Logic and Reason, and I constantly refrain from personally attacking The Lying Slanderous Bastards in the Opposition.

More to come

I encourage everyone to read and think on the FSF statement. There are some interesting arguments in there, and I would like to see a much longer and detailed essay forthcoming.

People love to compare Google and Microsoft. Here’s a comparison I found interesting:

Let’s look at the Google Patent License:

Subject to the terms and conditions of this License, Google hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable (except as stated in this License) patent license for patents necessarily infringed by implementation (in whole or in part) of this specification. If You institute patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the implementation of the specification constitutes direct or contributory patent infringement, then any patent licenses for the specification granted to You under this License shall terminate as of the date such litigation is filed.

Compare that to Microsoft’s Community Promise:

Microsoft irrevocably promises not to assert any Microsoft Necessary Claims against you for making, using, selling, offering for sale, importing or distributing any implementation, to the extent it conforms to one of the Covered Specifications, and is compliant with all of the required parts of the mandatory provisions of that specification (“Covered Implementation”), subject to the following:

This is a personal promise directly from Microsoft to you, and you acknowledge as a condition of benefiting from it that no Microsoft rights are received from suppliers, distributors, or otherwise in connection with this promise. If you file, maintain, or voluntarily participate in a patent infringement lawsuit against a Microsoft implementation of any Covered Specification, then this personal promise does not apply with respect to any Covered Implementation made or used by you. To clarify, “Microsoft Necessary Claims” are those claims of Microsoft-owned or Microsoft-controlled patents that are necessary to implement the required portions (which also include the required elements of optional portions) of the Covered Specification that are described in detail and not those merely referenced in the Covered Specification.

This promise by Microsoft is not an assurance that either (i) any of Microsoft’s issued patent claims covers a Covered Implementation or are enforceable, or (ii) a Covered Implementation would not infringe 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.

Behold! I have created and given to you a table:

Wow. I am HTMLicious!

Class Activities

1. Pretend you are a FLOSS developer: Which one would you rather be working under? (Assume you have not betrayed the community and acquired a secretive and exclusive patent deal on the side.)

2. Pretend you are Satan McDarl Ballmer-Gates, and the Year of Linux on the Desktop is arrived. The most common desktop environment is almost entirely built on “ohno” which is solely based on your technology, but covered under the Community Promise. Can you shut them hippies down or not, man?

3. Pretend you are a Megan Fox and I am Optimus Prime. Wait. That’s sexist. Oh my god, She’s so hot it’s making me sexist. Bitch.

Disclaimer

This table is my own analysis, if something is wrong or needs to be added let me know! You can even accuse me of hypocrisy and hint that I left it out/got it wrong intentionally when you do so, if you like.

Mono apologists love this one! Basically it boils down to “software patents suck because your code might infringe anyone’s patent, so every project is just as risky as mono, so don’t sweat us over patents.” Now, like all really good propaganda, this has a some core of truth: it is indeed true that software patents suck.

I despise it because not only is it dishonest, but because how easily it is tossed around by mono apologists.

I guess it’s because the argument starts of with some truth – explaining how idiotic the software patent system is in the United States – that people just disengage their brain, nod along, and agree with the entire argument.

Of all software projects, not all are equally likely to violate patents.

Both of these statements are true:

1. Project A, a large open source networking project may infringe on one or more Microsoft patents
2. Project B, a small open source ping implementation may infringe on one or more Microsoft patents

Microsoft has an Open Specification Promise on a wide swath of technologies that they promise not to sue anyone over, so long as you don’t sue them first. Implementing parts of .NET that are not part of the standard may infringe on Microsoft patents, because Microsoft was careful to limit how much of .NET they gave to the standards body. Internal emails from Microsoft show a careful deliberation over how much of .NET to standardize, and how much to make sure was protect by patents, specifically mentioning Linux and preventing the commoditization of the .NET platform.

This is true in a more general sense as well. Any software project covering a common technology like ping or telnet is much less likely to run into patent issues for many reasons: length of time technology has existed, the number of similar projects having worked in the same area without patent issues, etc.

Of all possible patent holders, not all present the same risk in likelihood of relevant patents

Both of these statements are true:

1. Mono may infringe on one or more Microsoft patents
2. Mono may infringe on one or more Dunk the Clown, Inc. patents

It is more likely that mono infringes on Microsoft patents, considering Dunk the Clown, Inc. is not the that has over 150 patents referencing the .NET framework. It is unlikely that any of Dunk the Clown, Inc. patents apply to mono.

Of those patent holders that do hold relevant patents, not all present the same risk of enforcement

Both of these statements are true:

1. Mono may infringe on one or more Microsoft patents
2. Mono may infringe on one or more Red Hat patents

It is more likely that Microsoft will attempt to use its patents against the mono project, than it is that RedHat will. Sure, Red Hat might go crazy insane and declare some sort of war on mono. Also, I might get invited over to Scarlet Johansson’s place for drinks and a night of passionate lovemaking tonight. /brb

Of those patents that are enforced, not all are as likely to be valid

Both of the statements are true:

1. Mono may infringe some random “one-click-shopping” patent, and it turns out that patent is valid in a court of law.
2. Mono may infringe some Microsoft patent, and it turns out that patent is valid in a court of law.

There are some things you can do to defend yourself if someone goes after you for patent violation. You can show prior art, for example. However, .NET is unquestionably a Microsoft technology. It is not unlikely that Microsoft holds valid patents covering .NET technology. While Microsoft certainly holds many patents that are invalid for a host of reasons, it is foolish to think that they don’t have some valid patents, especially on a technology they created!

Of those patents enforced and upheld, not all are as easy to workaround

Both of these statements are true:

1. Mono could be found infringing a minor Microsoft patent, easily worked around.
2. Mono could be found infringing a major Microsoft patent, required substantial changes.

I don’t know if you could say which of the two is more likely, but it is true that we know Microsoft carefully considered what to keep out of the standard, and discussed preventing the commoditization of .NET. It is not unreasonable to assume that patents underlying important concepts that would require substantial changes protect those areas that Microsoft considers crucial to keep proprietary.

Summary

I would love to think this would put this argument to rest, but I know it won’t. The truth of this argument is that although all projects do face some risks, all projects do not face the same risks. Anyway, at least next time Team Mono whips this one out you’ll be ready.

It is just getting started, so it is too soon to tell how it will shape up.

One of the things I have often heard (from both sides) is that non-patent lawyers can not fairly assess a patent. I have a list of patents I think mono might violate, but I also realize I don’t have the technical ability to speak to the issue. To be perfectly honest, I am going very slow on bringing out individual patents, because I don’t want to make an ass out of myself pointing to a patent and being way off base.

I’ll be keeping an eye on the Linux Patents blog and seeing how things develop. I think “one-a-day” is too ambitious – I’m not sure that’s enough time for people to discuss what they are reading. I have read a lot of Microsoft patents. It ain’t Dick and Jane in there, I’ll tell you that.

Now the basic premise that Mr. Shields lays down here is: Microsoft has lots of patents. So, if you reject mono because of patent concerns, you must also reject a whole lot of technologies. He goes on to list a lot:

• SOAP
• rlogin
• PAP
• COM+
• traceroute
• gopher
• IP over ATM
• ping
• Kerberos
• PPP
• POP3
• Appletalk
• DHCP
• SASL
• TLS
• LDAP
• PPPoA
• IPSEC
• IPv6
• PPPoE
• 6to4
• HTTP
• PPTP
• CIFS
• Firewire
• PXE
• TFTP
• IPv4
• telnet
• echo
• FTP
• SSL
• DNS

Of course, what he fails to mention – a perfectly honest oversight, I am sure – is that every single one of these technologies is covered under Microsoft’s Open Specification Promise. Go ahead and check. I did.

Now, guess a technology is not so covered…

If said “mono” or “moonlight” you win an official mono-nono.com “Don’t Bullshit Me, Son!” award!

Official mono-nono.com Don't Bullshit Me, Son! award

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Mr. Byfield gets a minor things wrong at the very start: Debian is not including Mono in its “base install”, as a Debian developer takes great care to explain. To be fair this point is obscure to those to knowledable about Debian packaging, and it is not unfair to say the status of mono in Debian has changed slightly to be more favorable for “default inclusion” in some instances.

Soon we see a recycling of one of the mono apologists’ favorite tidbits: the Jim Miller email. This email comes up a lot – even on the mono FAQ – so first let’s take a look at exactly what it says:

As one of the inventors on that patent as well as the person heading up the standardization efforts for the CLI, I’d like to explain why I’ve never felt the two are in conflict.

The ECMA process requires that all patents held by member companies that are essential for implementing its standards are available under “reasonable and non-discriminatory (RAND) terms” for the purpose of implementing those Standards. This is the normal condition used in all International Standards organizations, including both ECMA and ISO.

But Microsoft (and our co-sponsors, Intel and Hewlett-Packard) went further and have agreed that our patents essential to implementing C# and CLI will be available on a “royalty-free and otherwise RAND” basis for this purpose.

Furthermore, our release of the Rotor source code base with a specific license on its use gives wide use to our patents for a particular (non-commercial) purpose, and as we explicitly state we are open to additional licenses for other purposes.

This is nice enough, but there are a few problem with accepting (or presenting) this email as some sort of proof mono is protected:

1. It is an email to a mailing list at an Italian university – and a 3rd party web archive copy.
2. It is clearly the non-legal opinion of a single individual. He does not, nor does he purport to, speak for Microsoft here. It is his personal opinion.
3. He may well be “one of the inventors”, but all 10 of Mr. Miller’s patented inventions related to C# are assigned to Microsoft, as would be expected. Microsoft has the property rights of these patents. Corporate inventors basically think it up, assign the rights and get a plaque of thanks from the company.
4. RAND is not Open Source or “Free-as-in-freedom”. That doesn’t mean it’s worthless, evil or anything like that, just that RAND (or RAND-Z) alone doesn’t tell you that the conditions will be acceptable for Free and Open Source development. They might be, or might be. RAND-Z is necessary, but not sufficient.

Think on just this point for a moment. This is the quality of reference and legal underpinning the mono project itself advertises on its own FAQ. Not a copy of a court document, or signed statement, or hell even a press release on official letterhead. People are being asked to gamble on the word of what some dude shot off to a mailing list. Which – if you want to really be funny – might not even come from where it claims.

Mr. Byfield covers the scornful attitude of mono supporters well enough, if a bit sympathetically. It’s understandable that some mono supporters are frustrated. But they are the ones that are unable to answer questions. They are the ones that can not provide clear and convincing proofs. I understand the frustration of Team Mono, but I do not sympathize.

I will say that Mr. Byfield does hit one nail squarely on the head when he realizes “what is missing from the pro-Mono side is any serious effort to assess the legal threat.”

In covering the “Anti-Mono” arguments, Mr. Byfield rightfully recognizes that there are some real nutbar assholes out there (my words not his). One of the things I hope to do on this blog is provide mono critique without my name becoming synonymous with some of the more violent critics. Of course, pro-mono folks can get dirty too when it suits them; however, I really wish some ” on my side” would tone it down a notch or two.

Mr. Byfield comes to a strange conclusion, though: he asserts that the FLOSS community needs to take action. That we should produce a competent legal opinion on Mono, and that some group should request permission (because he thinks Sam Vargese attempt was invalid as it was from an individual, despite the “upon request” language that mono apologists love to point to.)

I understand what he is trying to achieve, but the real issue is that Microsoft could very easily silence honest critics on all legal issues, by doing something like putting mono under the Open Specification Promise, or hell why not have Microsoft join the OIN? They are forever going on about how thier patent portfolio is only defensive anyway. There are easily a half-dozen ways Microsoft could resolve the mono controversy. (Don’t forget about Moonlight here, too, which is on even shakier ground than mono).

Microsoft is unlikely to take action of course, because they couldn’t hope for something better to be happening in Open Source right now. The entire onus of “proof” is on those promoting mono – especially Novell. The burden is on them  – not the community. Until they do – clearly, unambigiously, and to the majority of the community’s satisfaction – the proper course is just as Stallman has said: discourage the use of C#.

Say you go into a convenience store and you shove a .357 Magnum in the guy’s face and demand his money. You have used a firearm aggressively. It doesn’t really matter that you didn’t pull the trigger – it is still armed robery.

So, when Microsoft command says things like:

We should look at even patenting the things we do add to help Office.

- Bill Gates, 1998

[On being told of the free Star Office]
An interesting development…
At some point we will have to consider the patents they violate.

- Bill Gates, 1998

Maybe we could define the APIs so that they work well with NT and not the others even if they are open. Or maybe we could patent something related to this.

- Bill Gates, 1999

What do we want in cameras for metadata and UI? What do we want relative to device discovery? (hopefully patented stuff).

- Steve Ballmer, 2003

We’ve had an issue, a problem that we’ve had to confront, which is because of the way the GPL works, and because open-source Linux does not come from a company — Linux comes from the community — the fact that that product uses our patented intellectual property is a problem for our shareholders.

- Steve Ballmer, 2006

If a customer says, Look, do we have liability for the use of your patented work? Essentially, If you’re using non-SUSE Linux, then Id say the answer is yes…I suspect that [customers] will take that issue up with their distributor. [Or if customers are considering doing a direct download of a non-SUSE Linux version] theyll think twice about that”

- Steve Ballmer, 2006

If anybody thinks open-source alternatives are free, I guess as they say, you can see me after class. [...] I will tell you that in any comparison that you would do of Windows with Linux, which is an open-source alternative, we will prove to you that when it comes to total cost of ownership our stuff is more economical, whether it’s the other patent-licensing costs that you might have to pay to use open-source software, which is kind of a big unknown right now [...]

- Steve Ballmer, 2007

Then that is Microsoft using patents aggressively.

I’m not sure why some people want to act like just because Microsoft hasn’t done the worst thing possible it means they aren’t doing anything bad at all – but you’ll see this defense a lot from mono apologists (and Microsoft apologists in general, for that matter.)