[Novalug] The Saga Conintues

Jay Sulzberger jays@panix.com
Sun Nov 12 00:32:47 EST 2006



On Sat, 11 Nov 2006, Joel Fouse <joel@fouse.net> wrote:

>> The agreement is to give permission to some few people to write
>> and run software, as long as the software is never used for
>> commercial purposes.
>
> I'm sorry, could you please substantiate this statement?  I have not yet
> seen the actual legal text of the agreement (is it published
> somewhere?), and I saw nothing in any announcement or press release that
> related to individuals writing and running their own code; nor do I
> recall any mention of restrictions relating to "commercial purposes".
>
>>   The agreement assumes that Microsoft and
>> Novell could not give permission in some cases.  If we grant that
>> the agreement has any force, we have agreed that Microsoft and
>> Novell have the legal power to not give permission to me to
>> write, run, and publish my own software.
>>
>> The agreement is based on a false principle: that we need the
>> permission of Microsoft and Novell to write, run, and distribute
>> free software.  We do not.  If we accept the agreement as having
>> any legal force whatever, we have surrendered the rights upon
>> which the free softwrae movement is based.
>
> You're making it sound like we're all being asked to assent to this
> agreement, and suggesting that such assent would carry weight even as
> you declare that a binding, contractual document does not.

We are being asked for assent, or at least assent by silence, to
a radical attack on our rights.  The rights being: our right to
write software, our right of copyright on the software we write,
our right to run our software, our right to distribute our
software under licenses we choose, and to do all this without
asking permission of Microsoft and Novell.

As stated, judges and juries often make judgements based on "the
official position" on fundamental issues underlying the
particular dispute at law.  If we allow Microsoft to impose as
part of "the offical position" that we need permission from
Microsoft to write, use, and distribute our own code, well, we
are likely to face attacks in court, and we may indeed lose these
rights in the United States of America.  Lose theme until we
re-establish them by fighting a difficult campaign of recovery.
We must say no now, and the best way to say no is to not use any
Novell product.

>
> You are of course correct that no permission is needed from Microsoft,
> Novell, or any other company for me to write code.  However, my opinion,
> which has not yet been formed, of a legally binding contract between two
> companies has absolutely no bearing whatsoever on my personal legal
> and/or civil rights, whether or not I'm a customer of either or both
> companies.  I don't care if the contract names me personally -- if I'm
> not a signed party to it, it affects my legal standing not one iota.*

Yes, and this independence of action is precisely what the much
publicized agreement, in principle, denies.  If the agreement is
not exposed, then when Microsoft sues an author, a user, a
publisher of free software, Microsoft can point to your
acceptance of the agreement as evidence that you believe
Microsoft has the legal power to deny you the rights I have
listed.

>
> As to whether or not the agreement has any "force", I again don't see
> how my perception of that fact alters the reality or validity of the
> agreement, or of its relation to me.

Again, judges and juries often decide cases based on what is
believed/accepted/tolerated by the general public, and by those
affected.

>
> Understand that I'm not responding to your overall stand, which is (as I
> understand it) "Bad agreement, don't buy Novell."  You are perfectly
> entitled to that position.  I don't think anyone here would fault you
> for it, and several, I'm sure, agree.  I'm mostly responding to what at
> first glance looks like passionate rhetoric but after review reads more
> like hysterical hyperbole.  This isn't a time for stump speeches to
> rally the troops; it's a time for reasoned and purposeful logic based on
> whatever clear information can be obtained.
>
> - Joel

My argument stands on the literal statements by Microsoft and
Novell.  I have not stretched anything one inch.  Microsoft and
Novell do claim a legal power to deny me my right to write
software, to use software, and to publish software without their
permission.

Please read the official press releases, and Steve Ballmer's
explicit threats to sue other free software publishers.

oo--JS.


>
> * The exception would be a class-action suit or settlement, but even
> then I'm required to be given the opportunity to opt out of the class.
>
>
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