Subject: DEPLOY: Sender ID license is acceptable

From: Roy Badami <[email-masked]>
Date: Sat, 28 Aug 2004 01:53:48 +0100

In summary, I believe that the Sender ID license, whilst somewhat
burdonsome to distributors of code, poses no major difficulties with
the GPL or other major open source licenses, and offers significant
benefits to both the open source community and the industry as a
whole.

I support the drafts being advanced in their current form (subject to
editorial nits and minor technical corrections).

There may be scope for further discussion between the open source
community and Microsoft, and there is nothing to prevent Microsoft
offering an alternative patent license in the future as a result of
the outcome of that discussion.  But I see nothing in the current
license that would justify rejecting or delaying the drafts that are
before us.

This is a defensive patent license.  It's purpose is to prevent other
people suing not just Microsoft, but all of us.  Microsoft have
drafted it in a way to protect the community as a whole -- and not
just themselves -- from patent claims of third parties, and for this
they should be commended.

I suspect that anyone who believes Microsoft have some plot to try to
monopolize Sender ID hasn't actually read and understood the license.

It's a pain you have to sign it, but somehow I don't think that a
shrink-wrap reciprocal patent grant would hold water in any
jurisdiction.

Justification:

(Disclaimer: IANAL, and I'm way behind in reading the list given its
recent volume, so some of this may have been covered before)

GPL is a copyright license, the Sender ID licence is a patent license.

As such there is fairly limited scope for them to be incompatible (in
the traditional sense of incompatibility of software licenses).

The only circumstance that I'm aware of in which a patent claim (and
its licensing terms) can be incompatible with the GPL is that the GPL
prevents a distributor of the code from placing additional
restrictions on the recipients. Eben Moglen has made it clear in the
past that his (and the FSF's) position is that asserting patent claims
with a restrictive license in his opinion constitutes placing
additional restrictions for the purposes of the GPL.

But the point is that this makes the Sender ID license incompatible
with the GPL for Microsoft only.

Microsoft will (by this interpretation of the GPL) be unable to
redistribute other people's GPL'd code that incorporates the Sender ID
invention, since Microsoft, by means of their patent claims, are
placing restrictions (additional to the GPL) on what the recipient may
do with it.  I suspect Microsoft can live with that :-)

On the other hand, if _I_ redistribute GPL'd code that incorporates
the Sender ID invention, I haven't violated the GPL, since _I_ have
placed no additional restrictions on what the recipient can do.  This
applies whether or not I have signed the Sender ID license.  The
Sender ID license doesn't require me to place additional restrictions
on the recipients; it simply requires me to inform the recipients of
the restrictions that Microsoft (might be) placing on them.

Granted, the requirement to execute a license agreement is burdonsome,
but it's not the end of the world.

Probably many distributors of software will fail to do so, out of
oversight more than anything else.  If they don't execute an
agreement, what will happen?  How is their situation worse than with
anything else they distribute?  There could be unknown patent claims
on anything.

In the case of the Sender ID license, the probability of Microsoft
choosing to sue a distributor who didn't execute a license is probably
small.  If Microsoft did sue, the chances of them winning any damages
would be slight, given they would not have suffered any financial
losses (since the license is royalty free anyway), unless the
distributor also had a patent on some aspect of Sender ID.

In reality, if Microsoft were to take any action at all, it would
probably be to contact the distributor and insist that they sign the
patent license.

I'm not in any way advocating distributing Sender ID implementations
without executing an agreement with Microsoft, or suggesting this
would be a sensible course of action.  But I suspect that the risks to
a distributor who does so are actually much smaller than the risks
that they take with most of the other software they distribute.

As for the compatibility issue, I think it all boils down to what you
meen by 'compatible'.  This is very different from the problem of
compatibility between open source copyright licenses.  There is a very
real problem that given a work A with a copyright licence L_A and a
work B with a copyright license L_B, if you create AB, which is a
derived work of both A and B, there exists _no_ license under which
you can legally distribute AB without violating either L_A or L_B (or
both).

The Sender ID license, being a patent license, doesn't create this
kind of difficulty.  It may be incompatible with the principle of open
source and free software license in some peoples eyes, but I don't see
that it poses significant problems to open/free software.

Even if I'm mistaken on this last point, most (all?) of the major MTAs
support a plug-in architecture (and those that don't could grow one if
need be).  There's nothing to stop Sender ID plug-ins being
distributed as separate packages if (for some reason) it can't be
incorporated into the core distribution.

I'd also point out that this license is actually rather good for the
community as a whole (both open source and commercial).  The
reciprocal license grant provision requires any other patent holders
to grant a patent license not just to Microsoft, but to everyone else
as well.

At a time when the open source community is becoming increasingly
concerned about the possibility of patent suits against them, I would
suggest that this license gains the open source community far more
that it loses.

	-roy

---

From: Paul Iadonisi <[email-masked]>
Date: Fri, 27 Aug 2004 21:58:00 -0400

> benefits to both the open source community and the industry as a

  I'll start off with a question regarding the stated guidelines of Last
Call.  And it is an honest question, not in any way trying to corner you
or meant in a sarcastic way, because I honestly don't know the answer. 
Are the author of any open source software or Free Software?  In
particular, is any software you write and/or modify-distribute covered
under the GPL?  I ask this because in the guidelines posted for
discussing Last Call issues, we have been instructed to not speak for
others, only ourselves.
  If Roy is not the author or modifier-distributor of GPLed or other
FOSS licensed software, I would request that the co-chairs disregard all
comments made in his post about the GPLed or other FOSS licensed
software in his post, since he is not speaking for himself.
  If Roy is the author or modifier-distributor of GPLed or other FOSS
licensed software, then disregard my previous two paragraphs as I move
on to my further rebuttals.

> the outcome of that discussion.

  Any future possible changes are irrelevant.  All that is relevant is
that the current license is unacceptable.  Submitting a proposed
standard with known IPR problems in the likely vain hope that they will
be resolved AFTER being ratified is foolhardy.

>   But I see nothing in the current

  You are entitled to your opinion, but don't speak for others, as the
majority of your post below does.

> they should be commended.

  Has Microsoft told you that that is the purpose of this license?  I
beg to differ, if it hasn't.  But debating the purpose of this license
will accomplish nothing.  It's the effect that matters here, not its
intended effect.  See below for more.

> monopolize Sender ID hasn't actually read and understood the license.

  As you point out below, you haven't kept up on the list.  Almost ALL,
maybe indeed ALL of the posters that have discussed this topic do seem
to have, indeed, read the license AND the GPL and other licenses and
concluded that the patent license conflicts with many of these
licenses.  Few, if any, have discussed 'plots' during this Last Call
period regarding IPR issues.

> recent volume, so some of this may have been covered before)

  Then perhaps you should catch up, at least on the IPR threads.  That's
not a jab at you.  I'm suggesting that you should mainly because of your
IANAL disclaimer.  To date, three lawyers have given their evaluation of
the license (Eben Moglen, Larry Rosen, and Anne P. Mitchell, Esq.) and
all concluded the same thing: that this patent license is NOT compatible
with many FOSS licenses, not just the GPL.

> the traditional sense of incompatibility of software licenses).

  Quite the opposite.  A patent license causes much more trouble because
ALL implementations are covered by it.  If the implementation of the
standard in GPL software imposes additional restrictions on the
software, then directly it conflicts with at least section 6 of the GPL.

> restrictions on the recipients.

  Which this license does.  It restricts their distribution of the
software unless they sign a license with Microsoft.

>  Eben Moglen has made it clear in the

  No.  ALL licensees of the patent are restricted from distributing
Sender-ID implementations without executing a license with Microsoft. 
That's clear from section 2.2 of the license.

> the restrictions that Microsoft (might be) placing on them.

  Then you, who are not a lawyer, are in disagreement with the opinion
of the only three lawyers whose evaluations of this license have been
posted.  I think I'll go with what the lawyers say.

> but it's not the end of the world.

  Nobody has suggested that.  But three lawyers agree that it would be a
serious problem for FOSS software.

> anything else they distribute?  There could be unknown patent claims

  And what weight does that carry?  As I've said before, we have a KNOWN
patent here.  Or at least *somewhat* known, since Microsoft hasn't been
clear exactly what it has a patent (or patent-pending) on.

> distributor also had a patent on some aspect of Sender ID.

  It's not about any IPR holder winning any damages...it's about MTA
authors signing a license -- and therefore giving control over a portion
of their products -- to a competitor.

> probably be to contact the distributor and insist that they sign the

  Which would force them, at least in the case of the GPL (likely
others), to violate the license of the software.

> that they take with most of the other software they distribute.

  Then why present an argument based on it?

> compatibility between open source copyright licenses.

  Not as much as you represent.  But that is my opinion.  Not that it
matters...

>   There is a very

> that it poses significant problems to open/free software.

  But three lawyers do.  Lawyers who understand these licenses pretty
thoroughly.  Though I don't know Anne P. Mitchell beyond this list --
this discussion, however, is the event that will etch her name in my
mind along side the next two -- at least Eben Moglen and Larry Rosen
should be familiar to anyone who knows anything about FOSS.

> incorporated into the core distribution.

  Except that it would still present a problem for distributors of
'compilations' that provide mirrors systems and complete
redistribute-ability of their software.  Witness at least Red Hat's
Fedora and Debian.  Neither of those could maintain their current
distribution models and freedoms they give those who download it, who
are given permission to redistribute without signing any agreement with
anyone.

> community as a whole (both open source and commercial).

  Once again, please don't speak for the open source community.  Speak
for yourself in this context.

>   The

  But there are no other patent holders.  Submarine patent holders and
patent pooling companies can be dealt with in other ways.  There is no
need to tie us to any corporate entity in order to fight this.

> suggest that this license gains the open source community far more

  Your suggestion is wrong.  I *loose* the ability to make my (currently
conceptual) changes to Exim in order to implement Sender-ID without
violating the GPL license it is covered under.  Another is example is
Sam Varshavchik has also described the problem it creates for him as the
author of Courier-MTA.  I'll let him speak for himself and just point
you to: http://www.imc.org/ietf-mxcomp/mail-archive/msg03810.html. 
There have been others, and for that I can only suggest catching up on
the Last Call discussion about IPR issues.

-- 
-Paul Iadonisi
 Senior System Administrator
 Red Hat Certified Engineer / Local Linux Lobbyist
 Ever see a penguin fly?  --  Try Linux.
 GPL all the way: Sell services, don't lease secrets

---

From: "David H. Lynch Jr." <[email-masked]>
Date: Fri, 27 Aug 2004 23:02:58 -0700

>clear exactly what it has a patent (or patent-pending) on.
    If Microsoft is unwilling to make clear what patent they hold that 
needs licensed then what is this all about ?

    Can I claim to hold a patent or patent pending on some unspecified 
aspect of any draft standard and insist on requiring my
own License no matter how benign get included as part of the standard ?
    Certainly Microsft speaks with more credibility there than I do, but 
still does it make sense to allow any interest to hold the
   standards process hostage without atleast making it clear what it is 
they beleive they own ?
    Microsoft has been able to provide a very concrete license, but what 
exactly is it a license for ?

    I have not had much participation in standards processes before. But 
I understand that some less broadly deployed standards
    might have included similar or even more restrictive licenses. But 
have other standards included licensed technology without
    atleast identifying what was licensed before ?

    Without identifying the IP that requires a license I do not see how 
this situation is fundimentally different from the possibility that
    a standard could discover after appoval that there is an unforseen 
IP infringement. Certainly to be avoided if possible, but do we just
    quit drafting standards because they might infringe on something ?

    Shouldn't discussion of whether Microsoft's license is acceptable or 
not come after we know that they actually hold IP rights that do
    cover some part of the standard ?

---

From: Roy Badami <[email-masked]>
Date: Sat, 28 Aug 2004 12:50:41 +0100

>>>>> "Paul" == Paul Iadonisi <[email-masked]> writes:

    Paul> Are the author of any open source software or Free Software?
    Paul> In particular, is any software you write and/or
    Paul> modify-distribute covered under the GPL? 

No I am not.  My apologies to the chairs and to the WG if this post
was out of place.

    Paul> I ask this because in the guidelines posted for discussing
    Paul> Last Call issues, we have been instructed to not speak for
    Paul> others, only ourselves.  

I think it is fairly clear that my opinions are my own, and that I am
speaking for no-one but myself, but I apologise if the post was out of
place.

	-roy

---

From: Alan Hodgson <[email-masked]>
Date: Sat, 28 Aug 2004 12:50:07 -0700

On Sat, Aug 28, 2004 at 01:53:48AM +0100, Roy Badami wrote:
> the GPL or other major open source licenses,

Based on what?  The lawyers who have examined the issue seem to believe
differently.  All users of FOSS software are, potentially, distributors.

-- 
"It's not a war on drugs, it's a war on personal freedom. Keep that in mind
at all times."