I don’t know about “free software”. Even after more than a decade it’s still an alien term for me. I know it is “opensource” for as far as I’m concerned. And that’s all I care about.
- Philip Van Hoof, GNOME Foundation Member

Usually I turn to HBO or Showtime to provide me with my drama fix, but the GNOME Foundation Mailing List is doing a pretty durn good job of spicing it up these last few weeks. It’s so good I might have to break it up over a few entries.

New Thing: Same as the Old Thing

This latest kerfluffle (not to be confused with earlier kerfluffles [1] [2]) started up over concerns for a strategic roadmap on GNOME, the thread got all heated up by names that will be familiar to anyone following such issues (“trollers gonna troll” is how the kids say it in their rap music) , a re-boot was attempted, and now people are  unsubscribing from the mailing list[1][2].

Jump on in, the water’s fine

Like I said, there’s a ton of stuff to comment on, but here’s one to start on:

[Richard Stallman] Implementing a free platform for C# is a good thing to do.  If you would like to promote the use of C# itself, how about explaining to Novell and Microsoft that they need to fully implement said protection in an ironclad way for all the usual C# libraries.

[Miguel de Icaza] I spend a considerable amount of time doing this.   It has taken time, and there would be no Community Promise, and there would be no Silverlight agreement (the one that has no special Novell provisions) without this work.

[Ace Ventura]>Re-he-he-he-eally??
What about the fact that the Covenant defines a “Conforming Host” as either a web browser or a launcher implemented by Novell?

Wat about the fact that the Covenant defines “Moonlight 3” as only those portions developed by or on behalf of Novell?

What about the fact that the Covenant specifically defines the terms “Novell-Provided Copies” and “Novell Distribution“?

What about the fact that the Covenant restricts “by license and technical means” Media Packs to work only with Novell-Provided Copies of Moonlight?

What about the fact that the Covenant specifies test suites that Microsoft will provide to Novell for testing the functionality of Novell’s Moonlight candidates?

A simple request

Now, having read the text of the Covenant, anyone care to tell me exactly how there are no special Novell provisions in the Silverlight agreement?

Don’t get mad and call me a zealot or make fun of how rms uses the internet or engage in whatever distractionary technique Team Apologista has queued up when someone raises uncomfortable questions.

And don’t just attack one of those questions, either. You need to show that not a single one is a “special Novell provision”.

Extra irony

You may appreciate knowing that Mr. de Icaza makes this assertion – that there are no special Novell provisions (when there clearly are) – while calling a FSF article on mono “a package of half-truths” and accusing rms of spreading “half truths”.

I suppose even a package of half-truths is a step up from a package of no-truths.

de Icaza is an enthusiast and long term advocate of Microsoft technologies….

Say it ain’t so! Microsoft MVP Miguel de Icaza once took great exception to be called an “apologist”, I must wonder if he will take the same line over being called an “enthusiast and long term advocate.” They are quite different, I’m sure, in some way. (Perhaps the fact that the former came from RMS makes all the difference?)

Will we now hear The H’s author decried as a “zealot” or  ”fearmongerer” for pointing out de Icaza’s obsession with emulating and promoting Microsoft technologies? Or, perhaps, a word of apology for painting RMS in such lights for his equivalent statement?

I suspect the latter shall not happen, though some may call me a cynic.

Moonlight can be used, at least in the short term, if you have obtained your software through Novell. Otherwise, you are cast adrift in a no man’s land where it is not always apparent what is permissible and what is not.

Even though I think the author is too kind here, I am also pleased that he is not merely parroting the (failed) attempt by Team Moonlight to pretend that the new “Covenant” is some sort of improvement over the old – which was downright offensive in the first place.

It’s always amusing to me how de Icaza can say things like “We worked with Microsoft to make sure that Moonlight was available to everyone on Linux” or that they are “thrilled to be working with Microsoft” in a “purely open source fashion”, when the reality is they have all sorts of exclusive arrangements and extra-license agreements, covenants, and promises going on.

[T]he Mono developers have appeared to gain strength and unity from adversity and see themselves as united against the rest of the world.

This is the most brilliant insight of the article, and it articulates something I have long found fascinating. Team Mono has a core of supporters that are simply not interested in the truth or discussion. They will adopt (and endlessly repeat) any argument that they think supports their cause, and they will immediately dismiss any argument with any means that they think supports their opposition.

There is a name for that kind of person. A label, in fact. I think I’ve even seen it applied by such people themselves in attempts to discredit criticism. If only I could remember what it was!

This means More Moonlight Covenant problems in addition to the 10 I already laid out.

Moonlight still not acceptable in Fedora

Unsurprisingly, the new “covenant” doesn’t change Fedora’s stance that Moonlight is not permissible in Fedora.

One of the main reasons is a problem with the covenant that I didn’t pick up on initially, but several other people did. Call it Problem #11:

Problem 11: Novell Only, pt. 4

This one is a tricky: in the covenant Microsoft promises not to sue “End Users”; which are defined as so:

“End User” means an entity or individual that uses for its intended purpose a Moonlight Implementation obtained directly from Novell or through a Distributor. An entity or individual is not an End User when such entity or individual resells, licenses, supplies, distributes or otherwise makes available to third parties the Moonlight Implementation. For avoidance of doubt, an entity or individual cannot qualify both as an End User and a Distributor for use of the same copy of a Moonlight Implementation.

Read that closely now – Microsoft is careful to exclude “Distributors” from the covenant. And a Distributor is an entity or individual that makes available to third parties the Moonlight Implementation. You can’t be both. This means that distros like Fedora can’t distribute Moonlight under the protection of the covenant.

But, wait – there’s more! It means you yourself, as an individual, can not share a distro that has Moonlight! If you yourself, as an individual give your friend a CD with a distro that has Moonlight on it at your next LUG meeting, you are not covered.

Such tactics are perfectly in line with Microsoft and Novell’s twisted way of doing business: create an extra-license method of promising something to the “end user”, and then hope no one actually analyzes the deal.

Problem #12: Intended Use

Heh. Seems like everytime I re-read the covenant I find more problems.

Well “End Users” are defined as “an entity or individual that uses [Moonlight] for its intended purpose“. Hmm? What exactly is the “intended purpose” here?

This raises an interesting point: in the Free Software world (that Team Moonlight gleefully rejects), we have Freedom Zero: The Freedom to run the program, for any purpose. Nice thing to have, Freedom.

I don’t see that freedom to use for any purpose explictly laid out in the Open Source Definition (though I suppose you might  infer it by argument from one or more of the points there.)

It’s important that this is made clear, because if the Microsoft-Novell collaboration has shown us anything at all, it’s that they take the letter of the law much more seriously than the spirit.

So, here’s my question: Does “Open Source” mean you have the right to run the program for any purpose? And if so, how is this not yet another way that the Covenant is incompatible with “Open Source”?

Problem #13: Public and Private

The Covenant can be updated/discontinued according to the terms of the “New Moonlight Collaboration Agreement between Novell and Microsoft” but – as far as I can determine – this Collaboration Agreement is not publicly available.

I would be a bit uneasy relying on a public promise that refers to a private agreement.

The New is WORSE than the Old

I have to admit I am surprised that the new covenant is so bad. I expected a new covenant – even Miguel de Icaza hinted that the old one was less-than-ideal (scathing criticism from him as far as Microsoft is concerned) – but what I was expecting was basically the old covenant with a restriction or two removed!

Instead what we have is something that tries to look more “Open”, but is filled with Novell-Only anti-community language stronger than the previous version!

See No Evil, Hear No Evil

What I think we are seeing is this: Mono and Moonlight supporters are so willing to blindly support anything they think helpful while steadfastly refusing to entertain any criticism whatsoever, that there is becoming less of a need for Microsoft and Novell to maintain the facade that their relationship is “good for the Open Source community”.

Take for example Miguel de Icaza’s assertion that under the new Covenant “Novell is on the exact same footing as every other distributor, there are no exceptions made for Novell.” (He then goes on in the very next sentence: “…the only exception is that Novell has a seperate agreement for media codecs…”)

Yet, Novell has several exceptions in the Covenant:

• Only Novell can implement “minimal shell applications”
• Only “Novell-Provided Copies” can use the Media Pack
• Only “Conforming Runtimes developed by or on behalf of Novell” are covered
• Silverlight  Specifications are delivered to Novell
• Novell Distributions are explictly defined

…and so on, and so on.

Let’s play a counting game! In the Covenant and related definitions:

• Times ”Novell” is mentioned by name:  20
• Other Linux distributors mentioned by name: 0

To assert that Novell is “on the exact same footing” as anyone else seems difficult to support indeed.

Here’s the text, to save you a trip:

Covenant to End Users of Moonlight 3 and 4

Microsoft, on behalf of itself and its Subsidiaries, hereby covenants not to sue End Users for infringement under Necessary Claims of Microsoft and its Subsidiaries on account of such End Users’ use of Moonlight Implementations to the extent originally provided by Novell during the Term and, if applicable, the Extension or Post-Extension Period, but only to the extent such Moonlight Implementations are used as Conforming Runtimes. The foregoing covenants shall survive termination of the Agreement, but only as to specific copies of such Moonlight Implementations distributed during the Term, and if applicable, the Extension or Post-Extension Period.

Microsoft reserves the right to update (including discontinue) the foregoing covenant pursuant to the terms of the New Moonlight Collaboration Agreement between Novell and Microsoft that was publicly announced on or about December 17, 2009 (the “Agreement”); however, the foregoing covenant will continue as to specific copies of Moonlight Implementations originally provided by Novell and distributed before any such update.

All rights not expressly granted by the foregoing covenant are reserved by Microsoft. No additional rights (including any implied licenses, covenants, releases, or other rights) are granted by implication, estoppel, or otherwise, including no rights under any additional patents of Microsoft and no rights to any technology not included in such Moonlight Implementations, even if additional related or enabling technologies (e.g., operating systems, web browsers, or other platform technologies) are required to use the Moonlight Implementations. Microsoft is not bound by, nor grants any rights under, any third party licenses with respect to the Moonlight Implementations (e.g., any versions of the General Public License).

Now let’s look at a few of the issues – I’m sure many more will turn up as more people analyze this “covenant”.

Problem #1: Novell-Only, Pt. 1

According to the defined term Conforming Host, only Novell can create “launchers” for non-browser applications. You aren’t Novell? You can’t implement it.

Problem #2: No Deviations

Furthermore, such shell applications are quite restricted. Again, according to the defined terms, shell applications can not:

(i) Do anything that a web browser plug-in would not be able to.
(ii) Do anything more or less than Silverlight can do.
(iii) Prevent anything that a web browser plug-in can do.

Problem #3: OS Limitiations

Current and future versions of Windows and Mac are specifically excluded from the Covered Operating System definition. Yes, you read that right. Moonlight can not be cross-platform.

Problem #4: The Killswitch

Microsoft can at any time change or discontinue the covenant. Sure, previously distributed instances will be “safe”, but that does little for future versions.

Problem #5: Overlapping Promises

Microsoft explicitly states that no other licenses, covenants, releases or other rights are granted, even if they are related or enabling. This means that any technologies under the so-called Microsoft Open Specification Promis or Microsoft Community Promise that Moonlight requires can not be covered under both sets of promises/covenants.

Problem #6: Novell-Only, Pt. 2

The definitions of “Moonlight” and the covered portions clearly only apply to “those portions developed by or on behalf of Novell”.

Problem #7: Novell-Only, Pt. 3

The Media Packs are only covered if you get Novell-Provided Copies of Moonlight.

Problem #8: Platform Limited

Only Personal Computers are covered. The covenant explicity excludes, “personal digital assistants (PDAs), Pocket PCs, personal media players (PMPs), or mobile telephones”.

Problem #9: GPL-Hostile

The Microsoft “covenant” is specifically GPLv3 hostile. You are not covered if any portion is under a GPLv3 or similar license, even if every other qualification is met. The sole act of chosing a GPLv3 or similar license is sufficient to void the covenant.

Problem #10: Expiration Date

Not only does the covenant end on December 31, 2012 (it may be extended or terminated earlier), but the covenant only applies during the Term. That is, if the software is covered on December 30, 2012 and the covenant was not extended, then that same software is no longer covered on Jan 1, 2013, even if the prior use was covered.

Summary

There you have it then, 10 problems I see with the new Moonlight Covenant. Some I noticed in the old agreement, and some I didn’t really notice until reading through the new agreement.

Here’s the interesting point to me: I do not think you can develop and distribute Moonlight as “Open Source” and still remain in compliance with the covenant.

• The covenant does not permit Point 3 of the OSI OSD (Derived Works), because it only covers Novell implementations.
• The covenant does not permit Point 8 of the OSI OSD (License Must Not Be Specific to a Product), because the rights attached to the product do indeed depend on the program being part of a particular software distribution.
• The covenant does not permint Point 10 of the OSI OSD (License Must Be Technology-Neutral), because the covenant explicity excluded PDA, cell phone, and similar platforms.

I reject the notion that Open Source-licensed software can remain Open Source if it is under extra-license conditions. The uncritical focus on the-only-thing-that -matters- is-the-license-Open-Source misses a very important point. In fact, the OSI OSD touches on this in Point 2 (Source Code) when it states that obfuscated source code is not allowed.

What is the difference between “Open Source” code restricted by obfuscation or encryption and “Open Source” code restricted by “covenant” requirements?

I don’t think that “Open Source” can be vendor-specific, platform-restricted, time-limited, and modification restricted. Yet, in order to fall under the coverage of the covenant, Moonlight must be all of these things.

How exactly is that  working in a “purely open source fashion”?

Updated Patent Covenant
We worked with Microsoft to make sure that Moonlight was available to everyone on Linux and BSD.

Culturally, we started on two opposite ends of the software licensing spectrum. The covenant that was issued for Moonlight 1 and 2 covered every user that used Moonlight, but only as long as the user obtained Moonlight from Novell. This is a model similar to how Flash is distributed: there is a well-known location where you get your plugin.

The open source world does not work that way though. In the open source world, the idea is to release source code and have distributions play the role of editors and curators and distribute their own versions of the software.

Microsoft’s intention was to expand the reach of Silverlight, but the original covenant was not a good cultural fit. We worked with the team at Microsoft (Brian Goldfarb and Bob Muglia’s teams) to make sure that the covenant would cover the other Linux distributions.

The new patent covenant ensures that other third party distributions can distribute Moonlight without their users fearing of getting sued over patent infringement by Microsoft.

There is one important difference between the version of Moonlight that will be available from Novell and the version that you will get from your distribution: the version obtained from Novell will have access to licensed media codecs.

Third party distributions of Moonlight will be able to play unencumbered media using Vorbis, Theora and Ogg inside Moonlight (and Silverlight), but for playing back other formats, they will have a few options:

• Negotiating directly with the media codec owners a license (MPEG-LA, Fraunhofer).
• Negotiate access to Microsoft’s Media Pack with Microsoft.
• Plug-in GStreamer or another commercial codec license into their Moonlight implementations.

If this is true – it will lessen one major complaint I have had with Moonlight, that Moonlight is anti-community. It can only lessen it because I notice that we still have Novell-only access to codecs. I can not support the idea that Open Source software can be “Company X Only”. Sorry.

Also, this is very good spin from Mr. de Icaza, and I mean that. The man has had a real problem in the past making announcements and this one is quite well done. A little media training of late?

A small note

I like this line in the post:

Moonlight 2 is the result of love and passion to bring the Silverlight runtime to Linux.

It has always struck me as odd that anti-Free Software people are so obviously emotionally tied up in what they are doing, yet love to call pro-Free Software people “zealots” and so on and so forth.

Just a funny thing to me, I guess.

Small confessions

I suspected but didn’t know: Mr. de Icaza is under an NDA with Microsoft.

Microsoft’s DRM will never come Linux, which I think would render most of the desirable Silverlight sites worthless. (Are there any desirable Silverlight sites?) Doesn’t this undermine virtually all commercial media-delivery Silverlight sites? Or, down the road are we going to have Novell-only DRM support?

Predictions

Here are my predictions, based on the last similar situation when Mono fell under the “promise” from Microsoft:

1. The new covenant will not be as comprehensive as Mr. de Icaza states. I do think he isn’t overselling this one near as much as the last one, which I think points to a lesson learned.
2. Team Mono will rail on and on about how this is a win for them and should “silence the critics”, never noting the incovenient fact that they promoted Moonlight just as hard without the “proper” coverage, and there are still remaining issues.
3. There will still be at least 3 obvious problems with the “Covenant” and a half-dozen subtle and complicated problems.

As I pointed out earlier, Mr. de Icaza has abandonded even the pretense of promoting an Open Source development platform and seems perfectly content to promote Microsoft Silverlight as the new desktop “revolution”.

Like the proverbial frog, the temperature has been steadily rising as Mr. de Icaza embraced and praised ever more Microsoft technology, events and business practices. Now the water is beginning to boil as so many observers have predicted, and Mr. de Icaza simply ”drools” over a Closed Source, Proprietary Microsoft platform.

Silverlight is not Free Software. Silverlight is not Open Source. Silverlight is not standardized. It is a pure, old-fashioned closed and proprietary Microsoft platform. There is no way it can be responsibly recommended as the cross-platform development platform of choice, yet Mr. de Icaza is sure it will be:

[In response to the question, "Are you saying that Silverlight could be the primary UI Toolkit to develop x-platform apps with? that is are you expecting it to be replacement toolkit for all GTK# applications in the future? or just cross-platform ones??"]

In the long term, it will.

[...]
Although it would be best if Microsoft added things directly to silverlight that we all need, there are ways to support this without their help.

Please read the entire thread and especially this response in context. You will see that beyond the absurdity of recommending a closed and proprietary platform, the idea that we need Microsoft to provide us with “help” to have a full-feature cross-platform toolkit is near-insanity.

But here’s a funny thing: One commentator takes Mr. de Icaza to task for “yet another post” heavy on Microsoft and light on Linux, which of course Mr. de Icaza sees as prime opportunity to play the Hate Card:

I understand that as a commissar you feel that your job is to make sure that every post uses the words “Gnome” and “Linux” somewhere in the post. You could have read my post and noticed that I spoke explicitly about MonoTorrent, a Gnome/Gtk# based application.

Yves, I worry about you. In fact, I worry about all of you Linux users that do not use Linux because of what it offers, but because you hate Microsoft.

Yves, it is only software, it is not worth hating over it.

Let’s not dwell on the foolish and transparent attempt to deflect valid criticism as hate, but instead let’s look closer at his specific defense. Mr. de Icaza says he brought up  about MonoTorrent, a GTK#-based application, but he also says he wants Silverlight to replace GTK#, and that he simply wants to re-implement MonoTorrent in Silverlight.

That’s a major problem with Mr. de Icaza. He doesn’t just want to build on top of what exists, he wants to replace what exists; replace with closed-source, proprietary, non-standard technology!