CyberTech Rambler

December 24, 2009

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

Filed under: Uncategorized — ctrambler @ 3:10 pm

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.

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