The Law, Microsoft, And ISPs

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A couple of legally-tinged topics consider whether Microsoft’s pledge not to assert patents against developers as part of its Novell deal actually do what they say, while a British lawyer contends Internet service providers should be liable when a denial of service (DoS) attack takes a website offline.

Free and open source software (FOSS) developers had hoped the agreement would be favorable to the work they do, and keep Microsoft from potentially hammering them with lawsuits. Such a state of affairs would go some way toward healing the perpetually open rift between FOSS developers and the technology giant.

However, Growlaw has cited an opinion from the Software Freedom Law Center (SFLC) that Microsoft’s patent pledge is not all it seems:

They have analyzed in particular Microsoft’s Patent Pledge for Non-Compensated Developers and see little value and in fact say it’s worse than useless, because it creates an illusion of safety and because it limits severely what that developer is allowed to do with his work:

The patent covenant only applies to software that you develop at home and keep for yourself; the promises don’t extend to others when you distribute. You cannot pass the rights to your downstream recipients, even to the maintainers of larger projects on which your contribution is built…

It’s worse than useless, as this empty promise can create a false sense of security. Don’t be confused by the illusion of a truce; developers are no safer from Microsoft patents now than they were before.

If you want to use Microsoft patents, SFLC chief technology officer Bradley M. Kuhn contended in the statement to the FOSS community, prepare to be “an isolated, uncompensated, unimportant Free Software developer.”

Across the pond, a British attorney thinks some liability for a crippling DoS attack should be laid at the doorstep of ISPs. New Scientist Tech noted how the prospect of lawsuits flying like Peter Pan and Wendy to Neverland will be considered:

At a conference called Blocking Denial of Service Attacks on the Internet, to be held in London on 13 November, Lilian Edwards, an internet lawyer based at the University of Southampton, UK, will argue that legal measures must be taken if these attacks are to be stemmed. Edwards notes that ISPs currently have no legal obligation to check data relayed to and from internet users. She thinks, however, that governments could require them to do so.

The idea of requiring ISPs to guard against DoS attacks will be strongly resisted by the companies concerned, says Malcolm Hutty of the London Internet Exchange, an association of London-based internet providers. “That idea is guaranteed to fail,” he says. “It’s not the ISP’s fault that DoS attacks happen – it is the computer’s fault for allowing the bots to be planted.”

One immediate problem comes to mind. If a website is taken down through the crush of traffic from a link on Digg or Slashdot, sites both known for sending lots of people to a featured site, and the visitors had no malicious intent, could the site publishers sue the ISP over the downtime?

Privacy advocates will have a field day with the notion that ISPs should be actively inspecting every packet crossing their network.

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David Utter is a staff writer for WebProNews covering technology and business.

The Law, Microsoft, And ISPs
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