| Freespire, Linspire, and Microsoft patents |
Jul. 20, 2007
 On July 5, Microsoft quietly released a "Covenant to Customers" to clear up how it is handling its patent deal with Linux distributor Linspire. Instead, it did little but puzzle and annoy members of the Linux community.
Roy Schestowitz, a well-known open-source advocate and author, for example, wrote in his article "Can Linspire Still Feed on Ubuntu (or Debian) Linux Codebase?" that "Microsoft has disavowed any GPLv3-licensed software. Ubuntu will be moving toward the new toolchain, which is GPLv3-licensed. Linspire needs Ubuntu, which is the core on which it builds its products. If Linspire carries on adopting Ubuntu as its codebase or even falls back (some would say 'forward') to Debian, any 'patent indemnification' will then be rendered moot."
Indeed, if you read Microsoft's memo, you'll find that Microsoft's patent protection only applies only to "Linspire Five-0 and successor offerings" on a desktop. Server use is specifically forbidden. Microsoft won't cover any software added to Linspire via the CNR (Click and Run) system. Besides ruling out any patent coverage for software covered by the GPLv3, Microsoft also categorically rules out "Freespire and any other software offerings that include the Linux operating system for which Linspire receives no revenue."
Linspire 6.0, the "successor offering" to Linspire Five-0, according to a letter to users from Linspire CEO Kevin Carmony is "based off of Freespire 2.0," with some modifications "specifically for our OEM and Retail Channel partners." When you put this all together, do you indeed end up with a loophole that will enable Microsoft to deny its foggy patent protection to Linspire 6.0 customers?
Carmony explained in a discussion with DesktopLinux.com, "It's pretty simple, actually ... those who don't feel there is any need to get any sort of patent coverage from MS can use Freespire. Those who do (mostly enterprise customers and OEMs) will buy Linspire.
"We have a simple guideline on our end when it comes to software, drivers, codecs and other 'goodies' we like adding to the OS. If we can add it without a per-unit licensing fee, it allows for redistribution, etc., then we include it with Freespire (Windows Media
9, Java, Flash, Quick Time, MP3, etc.), which all have no or flat pricing. We can include the enhanced document interoperability we're doing with Microsoft, for example, with Freespire.
"However, if we must pay a per-unit licensing fee, then we include it with Linspire (True
Type fonts, Windows Media 10, DVD playback, patent coverage, etc.). [The] nice thing is we've been able to add all these goodies without raising the retail price of Linspire. We also have plans to use CNR to allow Freespire users to buy these items, individually, or perhaps in different 'bundles.'"
Therefore, from where Carmony sits, "Bottom line, users can get what they 1) feel they need, and 2) can justify buying. Starting with a Freespire baseline, then using CNR to supplement, both free and commercial (CNBs, click-and-buys), is an ideal model, for not just Freespire, but in the near future, Ubuntu and other distros as well. Linspire is the turnkey offering for OEMs, and those customers who just want to buy it all wrapped up.
"As for the GPLv3, our agreement was designed to incorporate and be flexible around this new license. (No coupons, etc.)," concluded Carmony.
Here, Linspire's CEO was referring to the Novell-Microsoft agreement in which Microsoft agreed to distribute Novell's SLES 10 (SUSE Linux Enterprise Server 10) coupons, essentially SLES licenses, to customers. Microsoft subsequently delivered more than 10,000 certificates to enterprise customers such as Deutsche Bank, Credit Suisse and AIG Technologies.
Because of this, Richard Fontana, counsel for the SFLC (Software Freedom Law Center), argued , "Now that Microsoft has effectively become a distributor of Linux by distributing some 50,000 or so Novell SLES coupons, it has perhaps unwittingly restricted its ability to sue Linux users over its patents. While this is particularly clear under the forthcoming Version 3 of the GPL, the Microsoft lawyers who helped craft the MS-Novell deal appear to have overlooked the fact that, by procuring the distribution of lots of free software under GPL Version 2, among other licenses, Microsoft has already lost some of its power to assert patents against subsequent distributors and users of that software."
Microsoft denies that this is the case, and argues that, in particular, the GPLv3 has nothing to do with it. However, with its July 5 Covenant to Customers concerning its Linspire deal, Microsoft is trying to put even more distance between any potential patent claims and the GPLv3.
Regardless of Microsoft's legal posturing, Linspire plans on releasing Linspire 6.0, Freespire 2.0 and the revamped CNR system by the end of July.
—Steven J. Vaughan-Nichols
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