[Linux-aus] Bad timing if ever I've seen it; FOSS users are *safer* than EULA-bound

[Leon Brooks]

Quoting http://www.eweek.com/article2/0,1759,1634933,00.asp :
> It's time for other Linux vendors to follow Red Hat's lead and offer
> patent infringement protection to their customers.  

Just as IBM prepares TSG for a body-slam? That seems a little... disingenious. 
Have the eWeek editorial board actually read IBM's document? They've got 
statements from *everybody*involved*but*TSG* in there which say that they're 
right, free and clear. The original AT&T people who drafted the contracts, 
the whole enchilada. Remember that The SCO Group as we see them today are 
*not* the Santa Cruz Organisation. They don't have the same history as the 
other players.

If IBM win this piece of their argument (or even come close) it's all over bar 
the shouting - and the compensation claims against TSG which will eviscerate 
them.

It's also worth noting that TSG was still offering the disputed code for free 
and open download from their own servers as at 04 August. Their case has no 
legs.

eWeek's editorial board badly needs to peruse a Microsoft EULA to see just how 
much indemnifying is done by the industry leader (well, not so much "leader" 
as "dragger around by the nose"). Here's a few choice snippets:

    You may not reverse engineer, decompile, or disassemble the
    SOFTWARE PRODUCT

    Its component parts may not be separated

    You may not rent, lease or lend the SOFTWARE PRODUCT

    Without prejudice to any other rights, Manufacturer or MS may terminate
    this EULA if you fail to comply with the terms and conditions of this EULA

    Product support for the SOFTWARE PRODUCT is not provided by MS, Microsoft
    Corporation, or their affiliates or subsidiaries.

    Should you have any questions concerning this EULA, or if you desire to
    contact Manufacturer for any other reason, please refer to the address
    provided in the documentation for the HARDWARE [ie, *not* Microsoft]

    Manufacturer's and its supplier's entire liability and your exclusive
    remedy under the express warranty is, at Manufacturer's option, either
    (a) return of the price paid; or (b) repair or replacement of the SOFTWARE
    or Microsoft hardware which does not meet the warranty and which is
    returned to Manufacturer with a copy of your receipt.

    To the maximum extent permitted by applicable law, any conditions or
    warranties imposed or implied by law are hereby excluded.

    Insofar as such liability may not be excluded, then to the maximum extent
    permitted by law, such liability is limited, at the exclusive option of
    Manufacturer, to either (a) replacement of the SOFTWARE (and any
    accompanying hardware supplied); or (b) correction of defects in the
    SOFTWARE

    You acknowledge that no promise, representation, warranty or undertaking
    has been made or given by Manufacturer and/or Microsoft Corporation (or
    related company of either) to any person or company on its behalf in
    relation to the profitability of or any other consequences or benefits to
    be obtained from the delivery or use of the SOFTWARE and any accompanying
    Microsoft hardware, software, manuals or written materials.  You have
    relied upon your own skill and judgement in deciding to acquire the
    SOFTWARE and any accompanying hardware, manuals and written materials for
    use by you.  Except as and to the extent provided in this agreement,
    neither Manufacturer and/or Microsoft Corporation (or related company of
    either) will in any circumstances be liable for any other damages
    whatsoever (including, without limitation, damages for loss of business,
    business interruption, loss of business information or other indirect or
    consequential loss) arising out of the use or inability to use or supply
    or non-supply of the SOFTWARE and any accompanying hardware and written
    materials.  Manufacturer's and/or Microsoft Corporation (or related
    company of either) total liability under any provision of this agreement
    is in any case limited to the amount actually paid by you for the SOFTWARE
    and/or Microsoft hardware.

It hardly sounds like something you actually *paid* for, does it? Did you 
notice anything about Microsoft indemnifying you against patent, copyright or 
trademark claims? Contrast that with the GPL:

    You may copy and distribute verbatim copies of the Program's source code
    as you receive it

    You may charge a fee for the physical act of transferring a copy, and you
    may at your option offer warranty protection in exchange for a fee.

    You may modify your copy or copies of the Program or any portion [...]

    it is not the intent of this section to claim rights or contest your
    rights to work written entirely by you; rather, the intent is to exercise
    the right to control the distribution of derivative or collective works
    based on the Program. 

    mere aggregation of another work not based on the Program with the Program
    [...] does not bring the other work under the scope of this License.

    You may not copy, modify, sublicense, or distribute the Program except as
    expressly provided under this License. Any attempt otherwise to copy,
    modify, sublicense or distribute the Program is void, and will
    automatically terminate your rights under this License. However, parties
    who have received copies, or rights, from you under this License will not
    have their licenses terminated so long as such parties remain in full
    compliance. 

    You are not required to accept this License, since you have not signed it.
    However, nothing else grants you permission to modify or distribute the
    Program or its derivative works.

    Each time you redistribute the Program (or any work based on the Program),
    the recipient automatically receives a license from the original licensor
    [...] You may not impose any further restrictions on the recipients'
    exercise of the rights granted herein. You are not responsible for
    enforcing compliance by third parties to this License. 

The contrast is quite stark, and it's pretty obvious that the risks to the 
consumer are considerably *less* with GPLed software, the most "virulent" of 
the Open Source licences.

I'd very much appreciate space in eWeek for an article which unambiguously 
says so. I'll even write the article myself, if you have no budget or 
inclination for it.

Cheers; Leon


=== References ===

The full IBM memo in support
http://www.groklaw.net/pdf/IBMmotK.pdf

Microsoft EULA
http://proprietary.clendons.co.nz/licenses/eula/windows98se-eula.htm

GNU General Public Licence (GPL)
http://www.gnu.org/copyleft/gpl.html

Cheers; Leon