A few things about Microsoft’s new Moonlight 3 and Moonlight 4 Covenant Not To Sue

You can find the full text here.

Zero: Please please please do not change the covenant at will.

Not every covenant has the text “[The person who give this undertaking] reserves the right to terminate or change the T&C anytime”. If it does, we mainly treat it as a boilerplate covenant text lawyers like to put in in case something catastrophic happens and there is a need to modify the covenant. Example of this type of catastrophe? Russians use Moonlight-based technology to hypnotize President Obama before invading Georgia.

Changing covenant simply because a new version comes out is not, I repeat, not acceptable. Covenant gives certainty. We rightly have an expectation that the covenant carries over to newer version. Once in a while some twicking of the covenent will be necessary. With this I means once in 10 years, not one in 5. The covenant, if twicked, is also expected to maintain whatever has been given in the covenant.

Otherwise, the covenant is not worth the paper.

One: GPLv3 definitely got under the skin of Microsoft

A license designed specifically to oust GPL from it specifically mention GPLv3. While I think this is legalese, it certainly says that GPLv3 got under the skin of Microsoft.

Why do I think it is Legalese? The loathed Microsoft-Novell agreement was “grandfather-ed” into GPLv3. Being a new covenant post the agreement, there is a possibility that someone will interpret as Microsoft trying to attached new stuff to an old agreement to exploit “grandfather-ing” provision of GPLv3.  Even worse, one can say that by allowing the stuff to be distributed in GPLv3, and since a large chunk of the source code was from that agreement, one can says that Microsoft already consented and is therefore bind by GPLv3 for Moonlight. It will be expensive to litigate. So, to forever forestall this possibility, the lawyers decided to kick it out specifically.

Two : It is not about open source

The place where the covenant is posted said it all. It was posted in “Interoperability” section, not “open source” or “shared source”. So lets not go down the open source route.

Three : It is only for End User, not Producer of software/equipment capable of generating Moonlight content

That distinction is important for one thing: If you cannot generate content for moonlight, there is nothing to consume.

It’s like RealPlayer giving out codec for its native format for free to end users, but you and I do not have the ability to create content that is in RealPlayer native format.

Therefore what we see here is just a standard business practice of giving away the product to improve the chances of success for the sales for content-generating part of the business. An analogy is media companies giving away DVD players but charge people who give you free DVD for the privilege.

So, is the fact that it appears you and I cannot modify the end user Moonlight product important? Yes and No. No because I already accepted Moonlight as proprietary technology. Yes because it means I cannot get nice niche player but have to use the “official” one. As an open source advocate, I don’t like it.

Four : If you never liked Moonlight in the first place, this is giving you only more ammo to shoot at Moonlight

See point zero.

It is unfair for Verizon not offerring non-Bing option for search

According to theRegister, Verizon does not permit some mobile users to set their default search engine away from Bing. It is my view that it is unfair.

I understand that Verizon has a commercial agreement with Microsoft, and in Verizon judgement, Bing has come-of-age and can be used to replace Google or other search engine. Therefore, if Verizon see it fit to reset its users’ default search option to Bing, it is free to do so. However, users must be given the choice to change back to their favourite search engine if they want to.

Overall, I think this is a bad move on the part of Verizon, and have implication for the rest of the industry. Telco has the ability to “customize” the handset for their network. They use it as a means to control the “user experience” and deliver added-value to their customers. However, they must understand that it is also important for the customers to see their customization as “added-value”, not “removing values”. In this case, I think Verizon overstepped the mark and used the ability to customize handset to its customers’ disadvantage. If Verizon continue on this path, and other telco follow suit, soon we will have people losing trust in them and will not permit their handset to be customized.

Of course, like other Telcos. Verizon calculation is that it can reap more benefits by “removing values” from its customers’ phone. How sad!

If you are Verizon’s customers and is upset with it, the only weapon that you have in your hand and that Verizon understands is to increase the financial cost to Verizon for making this mistake. The best way to do this by either leaving Verizon. However, I recognize this as not normally a valid option. You can, however, use the phone less to decrease Verizon revenue (if applicable). Or, as long as the cost permit and make sure Verizon don’t actually make money on your call/email)  give Verizon so many support call/emails to increase cost on them on the switch. One have to do it really systematically, e.g., emailing them once every month asking them when they are giving you back the option and not excessively. This last path is difficult to achieve because they had budgeted for the increase in support cost in for the switch. Your hope is that collectively, Verizon customers will make Verizon exceed their budget for this switch. Finally, negative publicity over this move always help your cause.

Now, if it was Microsoft that does this, one can see antitrust authority running to sue Microsoft, however, the smart thing here is it is not Microsoft that does it, but Verizon. I hope this is not Microsoft trying to workaround anti-trust problems by getting a third party, in this case, Verizon, to do the dirty work.

Bruce Perens needs to get over BusyBox

Bruce Perens, the person behind the idea of BusyBox but had a fall out with the BusyBox maintainer, disagreed with the current maintainer’s stand on suing people that violates BusyBox license.

After reading his statement, I cannot really tell whether he is really upset over it, or is taking advantage of the lawsuit to drive forward his grevience with the maintainers, or worse, is he trying sell his consulting service to the defendents. As far as the threat to the current maintainers with lawsuit of his own I have to ask is this a preview of what he is prepare to offer the defendents?

I sincerely hope Ryan Paul of Ars Technica is right, i.e., Perens simply have strong attachment to the BusyBox project that he is not prepared to let go. He had not contributed to BusyBox development for a long time. By the meritocracy standard of open source, he has therefore lose the right to be the voice of BusyBox.

Here is BusyBox’s account of the fallout with Perens, and their effort to expunge Perens’ code from BusyBox’s code base. While I disagree with BusyBox’s maintainer that the change from “GPL v2 or later” to “GPL v2” is trivial and Peren is wrong to be upset, I think they had done more than enough to respect Perens’ IP claims. By expunging Perens’ code from the code base, they had done enough to be able to drive the project under whichever GPL version they choose.

Quite frankly, I do not think he has content and compilation copyrights as he claims. However, since he really think so, then he should had layout his claim, at least to BusyBox maintainer, to give them a chance to examine his claims and right any wrong.. That is not only what the law expects you to, it is the usual way to deal with potential copyright infringement in the software industry, and most importantly, the honourable thing that one expect people who claims to be luminaries in Open Source to do; Not hide behind vague statements the way SCO do.

Until he does so, BusyBox has done its best to distance themselves with Perens.

As for SFLC not contacting Perens, there is no need. SFLC is only litigating on the copyrights held by the current maintainers  in the BusyBox project. It is not there to represent Perens’ interest. Why is this distinction important? If we follows Perens’ reasoning, i.e., that he has an interest in the lawsuit, then we wil have to include the developers of other bits and boobs that goes into BusyBox, whose contribution to BusyBox, e.g., in the form of actual source code, is a thousand times stronger than the content and compilation rights Perens claims to have.

End of current phase of Microsoft’s trouble with EC

EC is to end the browser antitrust case with Microsoft, as reported by Larry Dignan here. The deal with Microsoft is for five years, Microsoft has to present a browser ballot screen. Microsoft to report to EC every six months and a review in two years time. Doesn’t the procedural  sounds familiar? Yup. The monitoring regime seems to be modelled on the US AntiTrust settlement.

It will be interesting to see the detail. It looks one of the biggest complainant,  Opera is happy with it.

WAKE UP Microsoft (Updated)

Microsoft must seriously reconsider the software release process. It now acknowledge it misappropriate someone else’s code again. Everytime it is blamed on third party.

The last time this happens, i.e., on a Windows Download Tool, I can accept that it is a third party at fault because it is a small part of the Microsoft Empire.

This time, they are claiming that one of their flagship product is being developed by third party. It is hard to believe it.

Either case, Microsoft seriously need to tighten their release process. Acknowledging and rectifying the problem quickly is one thing, having it happens again and again shows a nonchalant attitude towards other people’s IP. That is very bad for a company trading on IPs.

[Updated 16 Dec] Plurk’s response, as reported by TheRegister, shows that it also does not believe that it is entirely the fault of an external vendor.

Is Oracle’s pledge for MySQL good enough?

Oracle has put up 10 pledges about MySQL. It looks to be well received by EC. Only time will tell whether it is enough.

You can say either Oracle blinked or its is part of its strategy in the negotiation with EC over its acquisition of MySQL. I think it is the latter. First Microsoft, now Oracle seems to think that they have to drive a hard bargain with EC instead of adopting more cooperative attitude.

[Totally out of topic : I once attended a negotiation course where I played the part of the regulator. I was pull aside by the lecturer who told me that I have to be more assertive and wave the veto power provided by the law more frequently. In my defense, as I said in the debriefing that follows, is that I do not really want to poison the atmosphere by being too agressive, I thought that the “English Style” of negotiation is less confrontational than normal and three, I was working on the assumption that everyone on the table knows that I have the veto and they have to satisfy me. But I do admit that I should had been more assertive, as it means we all spend less time pussy-footing around potential solutions.]

That pledge is not going to satisfy critics of the deal. One strange thing about the deal is the hard five years promise on MySQL, which this ComputerWorld article by Paul Meller points out to me. The fear here is Oracle run down MySQL. Nothing in the pledge says to me in unambiguious term that Oracle will develope MySQL constructively.. That is why initially I see it as simply a stay of execution.

The other initial reaction was that I would add an extra clause saying that Oracle must sell of MySQL as a viable business unit after five years if it does not want to keep it. Of course, I realize that a “viable business” is very difficult to define. Furthermore, if through no fault of Oracle, nobody wants MySQL in five years time, the clause would be unfair on Oracle.

After some thinking, I had the Eureka moment.  The five years Oracle proposed for the pledge should not be seen as a stay of execution, but a grace period for the user/developers who use MySQL to get their act together, either to prepare for a future without MySQL or to take over MySQL’s development from Oracle.

If I were EC, I think this is an acceptable solution. My goal is to make sure MySQL potential as Oracle’s competition will not be extinguish by Oracle’s acqusition. But at the same time, I am not here to dictate or enforce MySQL development. Forcing Oracle to continue developing MySQL allow others to behave like leeches.  Neither am I here to protect the interest of MySQL downstream developers. They made their bet on MySQL, and they will have to live with it, for better or worse. With Oracle’s to support MySQL for five years, what I do is to give everyone a chance to make decision on where they want to go. They want to steer MySQL’s development away from Oracle, they are free to. If they do nothing at the end of the five years, then they deserve to suffer the consequences.

This five years grace period is also the easiest to enforce and for someone who like the concept of a ‘free market’ , it is also philisophically speaking a neat solution: It is ‘light touch’ regulation, this give the market the lightest possible guiding hand and leaving most of the decision to the market.

SFLC will one day have its day in court

SFLC is getting busy for the festive session, handing out early presents in the form of lawsuits. I think it is a combination of two factors : One, they finally got over the start up phase, and two, they tasted success.

So far,  SFLC seems to be settled and SFLC got what it wanted. I strongly believe free and open source software should enforce their rights and not being taken advantage of. But what I enjoy most is the educational side of the court cases and think it is good for free and open source software: (1) Just like any other software, using free and open source software imposes on you obligations that you must follow, and (2) Lawsuits are tough love, it serves to educate potential users about what exactly is free and open source software.

While the high profile cases suggests that SFLC always get what they want, if SFLC continues on this course, statistically speaking, it will one day find itself having to really litigate in court. I have to say all kudo to Eben Moglen for his leadership in GPL wording for not seeing a litigation goes to the court proper.

I don’t think we are going to find this out, but I would love to know how many companies SFLC approach and got them to rectify their infringement and how many of them actually choose to rip and replace the offending code, presumably by buying proprietary equivalent. That is one of the barometer of how well free and open source software had been working.

Message to TechCrunch : Beware the double-edged sword

TechCrunch confirmed that they had filed lawsuit against Fusion Garage over the CrunchPad. Unfortunately, that post was a double-edged sword. While it painted a very negative picture of FusionGarage, it also calls into question why TechCrunch got involved with what they now called a shadowy company.

Yes, I understand that when the relationship turn sour, parties start calling others name. Compared to SCO’s lawsuit, TechCrunch’s position is clear and can be said to have evidence to support their position. The filing itself is full of supporting evidence, not vague accusations as we see in SCO’s case. However, as TechCrunch already says (to their credit), there are two sides to the story.

Finally, hindsight is always 20/20, and we are in hindsight “mode”.

I already blogged that the involvement of VC would had help in bring in management expertise. It appeared that TechCrunch has been having it for free. VCs had flagged up issues with FusionGarage, including the background of the founders, and its financial position. What would a sound management brings to TechCrunch? Let’s see what is happening with VC and Pegatron. VC will not back the project until a device is available, and Pegatron cuts its loses by terminating its contract with FusionGarage when it cannot settle its debt.

To be fair, it is not unusual for startup to have financial problems and requires infusion of money. In the case of Fusion Garage, TechCrunch is their source of fusion money. It is also not unusual for potential investor (TechCrunch in this case) to inject capital into companies they might be acquiring. Perhaps the mistake here is to not to make sure the strongest possible legal document is drawn up to protect TechCrunch’s position.

Fusion Garage is a Singaporean firm. I am Malaysian myself and know how Malaysian and Singaporean companies operate in particular, Asia in general. What you see with Taiwan and to a certain extent Hong Kong firms operate is not representative of how Asian companies work. Taiwan in particular plays to Western rules. Not elsewhere. That was why I was wondering whether TechCrunch was a victim of cultural crash. That is not really that unusual. For example, a lot of companies flag up that Mainland China’s companies does not see delivery date as rigid deadline as in Western culture and expect a certain amount of flexibility in delivery date. In this case, the need to defend yourself from someone stabbing you in the back. It is not unusual to have people taking your money and expertise to bring a product close to fruitation, then crash the company, start a new company which cuts you off to exploit the product. One can say TechCrunch is already at the receiving end of being cuts off, but my feeling is it is at the stage where their ex-partner is going to crash the company. However, I decided that cultural difference has nothing to do with it. First, a western company would had probably done the same thing and second, the VCs appear to be aware of this potential problem and their management, when doing their due-diligence, do have preventative measure put in place for this type of problem.

My overwelming feeling after reading the post and the legal filing is TechCrunch was the naive lamb to the slaughter, or is undergoing a baptisim by fire.

TechCrunch says that Fusion Garage has yet to hire a lawyer to defend themselves. I am actually wondering whether they will. They will probably allow a default judgement against them. That would not matter much if you are preparing to go out of business anyway.

I won’t buy a pad from Fusion Garage. Not so much that I do not have a need for such a gadget, but I think TechCrunch has a genuine greivance and Fusion Garage handling of it is bad and sounds like SCO : A lot of smoke, no substance. I don’t want to do business with such a company.

Alex Brown started an unnecessary confrontation

When I read that Alex Brown put his frustration about P members putting in objections but did not bother the turn up at the meeting, then at the next paragraph congratulate ITTF for throwing non-participating members out, I know we are heading for a controntation. Sure enough, if you read the comments to the post, and reply from void life(void), you know we have a confrontation on our hand.

I understand the frustration of having people voting against something then did not turn up to the meeting to discuss it. I myself had been in the receiving end lately. In my case, someone put something in the meeting agenda that involved my area of responsibility and on the day of meeting, did not bother to show up. That was frustrating because I attended the two hour long meeting for that single agenda item. Understandably, I am not happy.

I am not a diplomatic person, I would had exploded. Luckily for me the chairman took it to himself to put it in the meeting minutes that tell everyone who put an agenda item to turn up as there were a few attendees in the same boat as me. To me, to put something on the agenda then not turn up is very unprofessional, especially no travel was involved in this case: The meeting was held at their workplace.

Essentially, to me the frustration was not that they did not turn up, but did not bother to inform the organizer that they are not planning to turn up. That is one thing I learned from that meeting, It takes only a very small amount of your time to type up an email saying that you are not going to go to a meeting, it makes a lot of difference when people are expecting you. Failing that, sending an apology later would smooth temper.

The other thing I learned is how the meeting’s secretary dealt with them. She called them up individually and asked why they did not attend and remind them when the next meeting is. That makes them take attention on what they had done. Crucially, she did not take a confrontational approach, something I would had done.

In Alex Brown’s case, while I am not excusing Brazil or Malaysia’s behaviour (Declaration of interest: I am Malaysian working in UK, in the same town as Alex Brown), I can see mitigating factors here. First, it is utterly unfair to insist that one have to turn up for a meeting simply because someone has a disagreement with you, i.e., placed an objection in this case. To do so is unhelpful, and can be seen as a means to silence disenting voices. Second. There is a significant amount of travel involved and the participants has to find their own money to fund it.

That is why while I understand Alex Brown’s frustration, I believed he could had handled the issue better. A private chat/email to the National Bodies/persons involved would be sufficient. He should not had written that on his blog, let alone suggesting that they should be thrown off the P member list by mentioning the fact that he supports ITTF recent decision to throws people of the list.

When I saw the two offending paragraphs, I was shocked. Part of the reason is for an English man in general, for someone from Cambridge in particular, the statement was extremely strong. It is also something I did not expect from Alex Brown. After about 5 seconds, and being a blogger myself, I think he was simply writing a post, ranting about his frustration about Brazil and Malaysia’s non-attendance, let his mind wander into ITTF territory and hit the publish button without sitting back and properly read the post to see what the readers will perceive.

Unfortunately, for any writing, it is not what the writer want to communicate that counts, but what readers perceive that count. It is dissapointing that after finding himself having to clarify his intention in two separate reply, he did not find the time to put a clarification note on the original post. I would had done that. Whether readers misread his intention was inmaterial in inserting a clarification, but the fact that some readers do read it wrongly. Without the clarification, I am afraid I am increasingly leaning towards the opinion that Alex Brown was indeed suggesting the two NB to be thrown out of the P member list.

The correct way to handle it is to send a letter to the expected participants and the National Bodies expressing one’s displeasure. Handle this privately, preferably without a paper trail. However, if Alex Brown thinks that a paper trail is necessary, then the letter approach should suffice.

If Alex Brown wants to throw P members countries out of the list, he just have to wait a bit longer. A lot of people, including me, believe that a lot of new “P members” that turn up for OOXML BRM is there only for that vote. We simply have to wait a while longer before we know whether we are right or not. If we are, then he can take his whip out and lashs them until he is content with the punishment, they deserve it.

You want a lawyer with the passion to defend you, but not a crusader

I bet Tenenbaum thought he has found a good lawyer to defend him. In all sense, I agreed. However, it is unfortunate that in his judgement, the judge in the case effectively accused Tenenbaum’s lawyer of running a crusade.

Law.com has the link to both side of the story here.