The Free Software Patent Question Microsoft's Sam Ramji Should Answer

Microsoft's Sam Ramji has a difficult job. As the directory of the open source software lab, his duties include advocating for free software within Microsoft, as well as trying to convince the rest of the world that the company led by men who've called various free software projects "a cancer", vaguely threatened patent suits against users of these projects, and called free software developers "communists" is really changing its spots to be warm and fuzzy.

I haven't opened my bottle of champagne yet.

At Sam's OSCON keynote, "history.forward()", he promised:

• to engage openly and honestly with free software communities
• to have the tough conversations
• to advocate for the community's concerns within Microsoft

As you might expect, quite a few bottles of champagne remain corked. During the question and answer session, Karl Fogel and Jim Blandy both attempted to ask the big tough question. Unfortunately, we didn't get an answer.

I don't intend to imply that Sam dodged the question (it's difficult to top Bill HIlf's useless promise from last year); the entire panel on stage complained that they could barely hear the questions due to microphone issues. Later, Allison Randal explained that there was tremendous feedback. I can imagine that. I still want an answer though.

Both the Debian Free Software Guidelines (item 6) and the Open Source Definition (item 6) explicitly prohibit license discrimination against fields of endeavor. As the annotations on the latter explain, the intent is to allow the use of free and open source software within commercial settings for commercial use. All of the other points of the guidelines and definition support this goal; none contradict this goal.

More succinctly, free and open source software licenses must make no distinction between commercial and non-commercial licensees to comply with the guidelines and the definition. There is no distinction between commercial and non-commercial use, modification, and redistribution.

Microsoft's Patent Pledge for Non-Compensated Developers -- the patent pledge Sam mentioned when attempting to answer the questions he couldn't hear -- makes that distinction. Microsoft has the full legal right to assert patent claims against anyone. Microsoft has chosen to offer royalty-free use of patents to hobbyist developers only. Again, Microsoft has the full legal right to do so.

Here's my question. Given that free and open source software by definition makes no distinction between commercial and non-commercial use, what good is this patent pledge?

There's your tough question, Sam. Any chance of getting a community agreement somewhat more in line with the community with which you're trying to engage?