Home | Blog | Software | Reviews and Features | Forum | Help | Donate | About us
topbanner_forum
  *

avatar image

Welcome, Guest. Please login or register.
Did you miss your activation email?

Login with username, password and session length
  • September 28, 2016, 10:18:22 PM
  • Proudly celebrating 10 years online.
  • Donate now to become a lifetime supporting member of the site and get a non-expiring license key for all of our programs.
  • donate

Last post Author Topic: Announcing .NET 2015 - .NET as Open Source, .NET on Mac and Linux  (Read 11308 times)

rkarman

  • Supporting Member
  • Joined in 2006
  • **
  • Posts: 27
    • View Profile
    • Arca Eclipse (chatserver for ares)
    • Donate to Member
Re: Announcing .NET 2015 - .NET as Open Source, .NET on Mac and Linux
« Reply #25 on: March 05, 2015, 10:49:29 PM »
Quote
^ It's a little more tricky than it looks.

Basically, under this wording, if you are using .NET and you ever assert an IP claim against Microsoft for any reason, you automatically become a provable infringer on Microsoft’s IP because their "personal promise" is automatically withdrawn. So in short,: use .NET, try to sue us, and you're now an infringer.

So while your infringement claim remains to be proven, Microsoft’s infringement claim against you is already established.


Not really..

First of all "promise" is legal wording and is legally binding, and this particular promise is not retractable for any other reason than you participating in a patent case against Microsoft. The only way to stop this promise to be valid for future .NET versions is for Microsoft to not make those future versions to begin with.

Second, in contract law the term "termination" means that both parties are released from their obligations to effect and to receive future performances. Any claim for compensation of past performances needs to be made before the contract is terminated. In this case the termination is "automatic", making any arrangement before it takes effect impossible.

MilesAhead

  • Supporting Member
  • Joined in 2009
  • **
  • Posts: 7,163
    • View Profile
    • Miles Ahead Software
    • Donate to Member
Re: Announcing .NET 2015 - .NET as Open Source, .NET on Mac and Linux
« Reply #26 on: March 06, 2015, 07:51:51 AM »

Not really..

First of all "promise" is legal wording and is legally binding, and this particular promise is not retractable for any other reason than you participating in a patent case against Microsoft. The only way to stop this promise to be valid for future .NET versions is for Microsoft to not make those future versions to begin with.

Second, in contract law the term "termination" means that both parties are released from their obligations to effect and to receive future performances. Any claim for compensation of past performances needs to be made before the contract is terminated. In this case the termination is "automatic", making any arrangement before it takes effect impossible.


Hmm, if I ever decide to get married I just may hit you up to draft the pre-nup.    :Thmbsup:


wraith808

  • Supporting Member
  • Joined in 2006
  • **
  • Posts: 8,275
  • "In my dreams, I always do it right."
    • View Profile
    • Donate to Member
Re: Announcing .NET 2015 - .NET as Open Source, .NET on Mac and Linux
« Reply #27 on: March 06, 2015, 08:11:10 AM »
Quote
^ It's a little more tricky than it looks.

Basically, under this wording, if you are using .NET and you ever assert an IP claim against Microsoft for any reason, you automatically become a provable infringer on Microsoft’s IP because their "personal promise" is automatically withdrawn. So in short,: use .NET, try to sue us, and you're now an infringer.

So while your infringement claim remains to be proven, Microsoft’s infringement claim against you is already established.


Not really..

First of all "promise" is legal wording and is legally binding, and this particular promise is not retractable for any other reason than you participating in a patent case against Microsoft. The only way to stop this promise to be valid for future .NET versions is for Microsoft to not make those future versions to begin with.

Second, in contract law the term "termination" means that both parties are released from their obligations to effect and to receive future performances. Any claim for compensation of past performances needs to be made before the contract is terminated. In this case the termination is "automatic", making any arrangement before it takes effect impossible.

With the way that things are in court, much of this depends on what judge gets the case, and what court it is tried in.  And unless you have as much money and resources as Microsoft, I wouldn't count on your interpretation holding up.

rkarman

  • Supporting Member
  • Joined in 2006
  • **
  • Posts: 27
    • View Profile
    • Arca Eclipse (chatserver for ares)
    • Donate to Member
Re: Announcing .NET 2015 - .NET as Open Source, .NET on Mac and Linux
« Reply #28 on: March 06, 2015, 01:34:13 PM »
Not true, judges also need to follow the law, and in contract law the main rule is the "Parol Evidence Rule".

It basically boils down to this: If the written words of a contract are enough to come to a conclusion, but one party gives testimony in court that their intention was different, then the judge is not allowed to use the testimony and has to follow the written words in a ruling. Even if the judge might feel that both parties understood the intention, he/she cannot follow the verbal testimony.

Example: Microsoft gives testimony in court that they meant that the promise was not a contract that's enforceable, then the judge is still not allowed to rule this, because the legal definition of the word "contract" is
Quote
Bilateral and Unilateral Contracts The exchange of mutual, reciprocal promises between entities that entails the performance of an act, or forbearance from the performance of an act, with respect to each party, is a Bilateral Contract. A bilateral contract is sometimes called a two-sided contract because of the two promises that constitute it. The promise that one party makes constitutes sufficient consideration for the promise made by the other.
note the specific mention of the word "promise" here.
So due to the parol evidence rule, a jude would not be allowed to rule that the promise is not an contract in this case.

Other example: Microsoft testifies that it had the intention the contract was terminated retroactively. However because the legal definition of the word "termination" is
Quote
The termination or cancellation of a contract signifies the process whereby an end is put to whatever remains to be performed thereunder. It differs from Rescission, which refers to the restoration of the parties to the positions they occupied prior to the contract.
So due to the parol evidence rule the judge is not allowed to grant a retroactive termination, because the correct legal wording for that would be "rescission" or "retroactive termination" and neither was used in Microsofts promise.

For whomever wonders what the exact definition of the parol evidence rule is: http://legal-diction.../parol+evidence+rule


It seems to me that Microsoft took great care in the wording of their promise to make sure they can enforce it in court. I have this feeling because of the way how the promise is set up: its a promise between Microsoft and you personally, and you personally will not be involved in a patent case against them. And if you are the promise will terminate. All of this points to the promise not being valid as soon as you are standing in front of a judge, by which time the judge will ask Microsoft if they have a counter claim. I speculate that they wanted to give a feeling of security to the open source community, which is why they didn't retroactively terminate the promise. With the amount of patents Microsoft holds, that's not really needed anyway.

Microsoft could not have pulled their pants down much lower in my opinion, but if you still like to think that Microsoft has some evil intentions with this patent grant, then, like with any contract, you're of course allowed to not accept it. If you're a programmer however, you're most likely still infringing one of those many thousands of patent and intellectual property rights they own.

wraith808

  • Supporting Member
  • Joined in 2006
  • **
  • Posts: 8,275
  • "In my dreams, I always do it right."
    • View Profile
    • Donate to Member
Re: Announcing .NET 2015 - .NET as Open Source, .NET on Mac and Linux
« Reply #29 on: March 06, 2015, 01:36:05 PM »
Not true, judges also need to follow the law.

I'd have to go to a basement thread for this one.  Suffice it to say, I have personal evidence that you're wrong.  It really depends on the judge, the lawyers, and the day of the week.

rkarman

  • Supporting Member
  • Joined in 2006
  • **
  • Posts: 27
    • View Profile
    • Arca Eclipse (chatserver for ares)
    • Donate to Member
Re: Announcing .NET 2015 - .NET as Open Source, .NET on Mac and Linux
« Reply #30 on: March 06, 2015, 11:26:05 PM »
Quote
Suffice it to say, I have personal evidence that you're wrong.  It really depends on the judge, the lawyers, and the day of the week.

Even better, if you didn't have that evidence, the other party would have that evidence instead... No one goes to court thinking they're going to lose, yet half of the people do. Often it's a case of not knowing the rules of the game or understanding the legal aspects, and ... like you said ... sometimes it's just Monday morning.

Anyway, it's all besides the point that Microsoft made this promise is very precise legal wording. From that wording you can conclude that they placed themselves in a corner with their pants down, if their intentions would have been to sue anyone for patent infringement. Their chances to win such a case went down to near zero, unless if you have a drunk judge on Monday morning.

ewemoa

  • Honorary Member
  • Joined in 2008
  • **
  • Posts: 2,841
    • View Profile
    • Donate to Member
Re: Announcing .NET 2015 - .NET as Open Source, .NET on Mac and Linux
« Reply #31 on: March 08, 2015, 08:37:40 AM »
{Penguins and Polar Bear Image elided}

Classic.