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'Take your covenant and shove it', Samba tells Novell

We don't do patents

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"I am not going to hide behind collective, anonymous responsibility," a French sheep-farmer told a magistrate when he was hauled before the law a few years ago. José Bové was on trial for destroying a branch of McDonalds, and the world was watching.

The American junk food chain had made a spectacularly bad judgement to build a franchise on French soil, where the sensual nature of food is celebrated with five hour lunches, and where this rich celebration of life's bounty is considered an entitlement whether you're rich or poor.

Bové rested his case on this simple moral defence:

"Yes, this action was illegal, but I lay claim to it because it was legitimate."

This weekend, we're told, the Free Software Foundation's counsel Eben Moglen is deep in cogitation, and he's not taking phone calls, lest they distract him from the historic decision of deciding whether Novell's "covenant not to sue" free software developers violates the code under which free software developers work.

Free software developers work to a straightforward moral code that doesn't require a rocket scientist, or distinguished counsel to decode. Whatever you may say about them (and they rarely produce a piece of software usable by someone not already suffering from Asperger's) free software developers draw a quality benchmark for what's permissible for others to code and share.

And every year, this benchmark creeps higher. This obliges everyone else to try a little harder, too.

Microsoft is correct when it says free software destroys the foundations of capitalism and private property, but when it makes such a claim, it only makes itself look foolish and lazy. Free software doesn't destroy capitalism or property, it just makes lazy people try harder. There is plenty of money to be made for the foreseeable future in advancing from the baseline drawn by standards committees and free software projects- because the software itself is but a small part of the value chain. So when an IBM (or a Microsoft complains) that it isn't in control of the entire process, one can only reel at the misplaced ambition.

It isn't hard to do better than free software - if one has a little ingenuity and wit. But such qualities appear to be strangers to Microsoft - and it wants to defend its prosperity on the grounds of "illegality" - and not what's "legitimate".

A large part of what we know as free software is licensed under the GPL, and the essential Samba project - the bit that provides the gateway between bog-standard systems and computers tied into the Microsoft way of doing things - is just one of these projects.

This weekend the Samba team offered this gentle nudge to Novell and the FSF.

We reproduce it in full:

The Samba Team disapproves strongly of the actions taken by Novell on November 2nd.

One of the fundamental differences between the proprietary software world and the free software world is that the proprietary software world divides users by forcing them to agree to coercive licensing agreements which restrict their rights to share with each other, whereas the free software world encourages users to unite and share the benefits of the software.

The patent agreement struck between Novell and Microsoft is a divisive agreement. It deals with users and creators of free software differently depending on their "commercial" versus "non-commercial" status, and deals with them differently depending on whether they obtained their free software directly from Novell or from someone else.

The goals of the Free Software community and the GNU GPL allow for no such distinctions.

Furthermore, the GPL makes it clear that all distributors of GPL'd software must stand together in the fight against software patents. Only by standing together do we stand a chance of defending against the peril represented by software patents. With this agreement Novell is attempting to destroy that unified defense, exchanging the long term interests of the entire Free Software community for a short term advantage for Novell over their competitors.

For Novell to make this deal shows a profound disregard for the relationship that they have with the Free Software community. We are, in essence, their suppliers, and Novell should know that they have no right to make self serving deals on behalf of others which run contrary to the goals and ideals of the Free Software community.

Using patents as competitive tools in the free software world is not acceptable. Novell, as a participant in numerous debates, discussions and conferences on the topic knew this to be the case. We call upon Novell to work with the Software Freedom Law Center to undo the patent agreement and acknowledge its obligations as a beneficiary of the Free Software community.

The Samba Team.

To Novell, this is a reminder that it doesn't actually own its free software "stuff". It's not Novell's right to gave or take away important moral decisions - such as whether you get sued or not for patent infringement (a career-wrecking lawsuit).

To the FSF, it's a reminder that its stewardship of the GPL requires a robust defence.

On occasions too numerous to recount, Richard M Stallman has pointed out that free software isn't about process issues, but it's about moral choices. Free software isn't some fancy abstraction, he says - it isn't just some magical New Age management process (as Eben Moglen's chum Yochai Benkler - with his manual for management consultants) - would have you believe.

It's about doing the right thing.®

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