On Novell and Microsoft [LWN.net]

On Novell and Microsoft

Posted Nov 7, 2006 21:23 UTC (Tue) by iabervon (subscriber, #722)
Parent article: On Novell and Microsoft

People are misreading section 7 of the GPL. Section 7 states only that, if you cannot fulfill your GPL obligations due to other obligations, you cannot use your GPL priviledges. If you have a patent license which permits you to fulfill your GPL obligations, but the recipients of the code don't have a patent license, that's not your problem.

Furthermore, you have no GPL obligation to negotiate a patent license for the recipients of the code, any more than you have any obligation to lobby for whatever the software does to be legal in their jurisdictions, or provide them hardware the software runs on, or anything else. All you are obliged to provide them with is the source, licensed under the GPL. For that matter, you could distribute software under the GPL whose source is subject to export restrictions in your country, so long as you, personally, are able to send the source anywhere you actually send the binaries. If someone else gets it, and wants to export the binaries, it's entirely their problem to get the appropriate export license for he source, which they are required to do in order to be able to export the binaries (as explained by section 7); the non-transferability of your export license is not an issue, because your sole obligation is the copyright licensing and availability of the source.

In general, relying on section 7 of the GPL for an argument is unwise, because it ends with "This section is intended to make thoroughly clear what is believed to be a consequence of the rest of this License." That is, the FSF believes that section 7 is unnecessary, so you're probably wrong if you think that section 7 implies something that the rest of the GPL doesn't.

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On Novell and Microsoft

Posted Nov 7, 2006 22:11 UTC (Tue) by madscientist (subscriber, #16861) [Link]

> People are misreading section 7 of the GPL. Section 7 states only that, if
> you cannot fulfill your GPL obligations due to other obligations, you
> cannot use your GPL priviledges. If you have a patent license which permits
> you to fulfill your GPL obligations, but the recipients of the code don't
> have a patent license, that's not your problem.

That's not true, because one of your primary obligations under the GPL is that the people you redistribute to have all the same rights that you do. This is one of the fundamental underpinnings of the GPL; if you can't provide them with the legal ability to redistribute in exactly the way you can, then you cannot use the GPL.

On Novell and Microsoft

Posted Nov 8, 2006 0:16 UTC (Wed) by iabervon (subscriber, #722) [Link]

Read the actual GPL document. The relevant section is 2b, which states:

You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.

(Sections 1 and 3 are about making the actual content available; 2a and 2c are about making the modifications clear; 4, 5, and 6 state that you can't change the license; 7 is informational; beyond that is administrivia).

Having a work licensed to you under the terms of the GPL doesn't mean that using it would not infringe patents held by other people. Nor does owning a copy of the work. Some actions require multiple rights, granted by distinct entities. The GPL only has an effect on copyright on works. Now, a patent license which prevented you from licensing works which use that patent to everybody under the GPL would prevent you from legally distributing a GPL work; you have to be able to do that much, as section 7 says. But the GPL can't really say anything about whether people are allowed to transmit on licensed RF bands with a GPL software radio program, or allowed to import works to countries with import restrictions, or use it without additional patent licenses.

Otherwise, Microsoft could shut down the FSF by granting use of some patent to any organization with a three-letter acronym. Then the FSF would have a patent it couldn't sublicense to John Doe, and would therefore be unable to distribute anything under the GPL. This doesn't work because the grant wouldn't give them any obligation not to license works under the GPL to people who aren't covered by the patent grant. Conventionally, patent licenses do restrict what the owners of works can do as far as licensing those works, but that's not necessarily the case.

(And, to make things more complicated, a patent may cover only some uses of something, because the application of a known technique to an unexpected problem is a valid invention; someone offering a work under the GPL may not be using all of the patents that potential users of the work would use, so there would be no need for the owner to get a license for that patent at all, let alone a sublicensable one.)

On Novell and Microsoft

Posted Nov 8, 2006 16:32 UTC (Wed) by zlynx (subscriber, #2285) [Link]

Also, and this is an interesting bit of IP law, source code cannot be patented.

It's only the binary + the computer that is patented. Really.

Think about how ludicrous it would be to claim that a book is patented. Or a magazine article. Source code is the same thing, just words people read. Only when a computer performs it does it become something covered under patent law.

Because source code itself is just a (precisely detailed) description of how it works. This is exactly what a patent application is supposed to contain, since patents were originally intended to provide incentives to disclose secret techniques.

On Novell and Microsoft

Posted Nov 7, 2006 23:48 UTC (Tue) by BrucePerens (subscriber, #2510) [Link]

I think you are misreading it. Most germane is this section:

For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

I'm pretty confident that a court would see a "covenant not to sue" as equivalent to a license regarding this language. Also, note the use of the word "allegation" in section 7. While Novell is being careful not to make an allegation, surely Microsoft has made one.

I think that if FSF wished to, it could enjoin Novell from distributing GNU LIBC under the covenants it has entered into. Perhaps Red Hat would like to fund that suit.

Bruce

On Novell and Microsoft

Posted Nov 8, 2006 0:12 UTC (Wed) by alexbk (subscriber, #37839) [Link]

The just published FAQ says that Novell itself has not entered any covenants, it's the Novell's
customers who get that with a Novell contract.

I wonder if that covenant is obligatory for the customers; if it is, then it seems to me that Novell is
violating the GPL by attaching extra conditions to it. Either way, if these customers accept the
covenant and distribute the software they got from Novell, then they might be in legal trouble.
Clever trickstery indeed.

On Novell and Microsoft

Posted Nov 8, 2006 0:28 UTC (Wed) by BrucePerens (subscriber, #2510) [Link]

The covenant is the subject of a commercial agreement between the two companies in which Microsoft agreed to issue it to Novell's customers in return for certain consideration from Novell such as use of Novell's patents and Novell's help in various ways. So, it's as if Novell were paying Microsoft to do this and to act as their proxy, in some mistaken belief that using a proxy would protect them from legal liability for breach of the GPL. It won't get by a court.

Were Microsoft choosing to issue this covenant out of the goodness of its heart for no consideration from Novell of any kind, Novell might not be in violation.

Thanks

Bruce

On Novell and Microsoft

Posted Nov 8, 2006 8:41 UTC (Wed) by job (subscriber, #670) [Link]

SuSE plays the in enterpricey league. People buy these things because they think Novell will still be a major player ten years from now.

That means the fact that we're actually discussing whether this is a covenant or not and how that relates to the GPL is hurting SuSEs credibility.

When even the respected Linux news sites are uncertain, that's some pretty good FUD.

Covenants, licenses, and GPL virality

Posted Nov 9, 2006 22:10 UTC (Thu) by giraffedata (subscriber, #1954) [Link]

I see the usual confusion between licenses and contracts here, with the addition of the new term "covenant." Remember: a license is permission from Person A to Person B to do something that Person A has a legal right to stop Person B from doing. A license doesn't restrict anyone but Person A. There is no such thing as breaching or violating a license. A license does not prohibit anything. A license is a one-way thing.

The confusion arises because a license is often offered under conditions. If Person B meets the conditions of the license, he has the desired permission, otherwise he has no permission. The common misstatement "he violated the license" must be translated as, "he failed to meet the conditions of the license, therefore had no license, therefore had no right to (copy, use, etc.)." Sometimes it means, alternatively, "He did more than the license he cited permitted him to do."

A covenant is even more straightforward because a covenant cannot have conditions. "Covenant" is a legal synonym for "promise." A covenant from Person A to Person B does not restrict Person B in any way. There's no such thing as accepting or rejecting a covenant.

So the GPL example means to say, "if someone has a patent right to stop you from distributing the code and he licenses you to distribute it only without all these GPL rights, then you cannot distribute the code."

Covenants, licenses, and GPL virality

Posted Nov 9, 2006 23:32 UTC (Thu) by BrucePerens (subscriber, #2510) [Link]

So the GPL example means to say, "if someone has a patent right to stop you from distributing the code and he licenses you to distribute it only without all these GPL rights, then you cannot distribute the code."

Uh-huh. My premise is that the agreement between Novell and Microsoft to grant covenants to each others customers - which is a separate document from the covenants - is tantamount to the establishment of a patent license between the two companies. It is made to appear to be something else than a license for the explicit purpose of circumventing the terms of the GPL. It's clearly outside of the spirit of the GPL, and possibly outside of the letter.

Certainly it is outside of the spirit of the GPL and all people who have GPL code in Novell's distribution should be offended. Moglen commented that even if this does clear the GPL terms by a milimeter (which he has not yet determined), GPL3 will be written so that nothing like this can get by it.

Bruce

Covenants, licenses, and GPL virality

Posted Nov 10, 2006 1:33 UTC (Fri) by giraffedata (subscriber, #1954) [Link]

I must be missing something very basic in your argument or in the Microsoft-Novell arrangement. Because of the Microsoft-Novell agreement, a SUSE customer gets all the GPL liberties, courtesy of a copyright license from Novell and every other Linux copyright holder, plus the liberty to use any Microsoft patents that might be involved in using SUSE, plus doesn't even have to worry about defending those rights because Microsoft promises not even to sue.

The patent license example in GPL is inapplicable, since any patent rights Microsoft might have had to stop a Novell customer from distributing SUSE are unconditionally waived by Microsoft.

Where is the spirit or letter of GPL offended here?

Even if the agreement used a conventional patent license from MS to Novell, sublicensed by Novell to Novell customers, I don't see any problem. So what's being circumvented?

Covenants, licenses, and GPL virality

Posted Nov 10, 2006 2:10 UTC (Fri) by BrucePerens (subscriber, #2510) [Link]

Where is the spirit or letter of GPL offended here?

The spirit of the patent language in the GPL is that we all hang together lest we each hang separately.

Any patent rights in connection with the software must be granted to everyone, not to one party while excluding another party. This is done with the strategic goal of making GPL software usable by everyone, using the tactic of prohibiting anyone from negotiating a patent solution that applies only to their business. If you want to benefit from the work of the community (in the GPL software), anything you do about patent rights must help to protect the entire community from patents.

The agreement between Novell and Microsoft that is mentioned in the form 8K appears to have the intent of circumventing that language of the GPL. If it did not, the two companies would not have used this odd structure of directly granting covenants to each others customers and not licenses to each other.

The premise of the use of covenants in this case is that when party A agrees not to exercise its rights against party B, we're supposed to believe a legal fiction that this is not a grant of any rights to party B.

Bruce

Covenants, licenses, and GPL virality

Posted Nov 10, 2006 2:16 UTC (Fri) by BrucePerens (subscriber, #2510) [Link]

Just to make sure you're clear about this: The covenant might allow a SuSE customer to redistribute, but it does not apply to the person to whom the SuSE customer redistributes. That's important - if one SuSE customer could pass the patent right granted by the covenant to everyone through a chain of distribution and redistribution, the GPL objection we are discussing would not apply.

Bruce

On Novell and Microsoft

Posted Nov 8, 2006 0:26 UTC (Wed) by iabervon (subscriber, #722) [Link]

Perhaps they have a patent license for royalty-free redistribution of any GPL work by all those who receive copies directly or indirectly through Novell. That doesn't mean that anyone has a patent license for royalty-free use of those works. (Or that Microsoft hasn't given such a license to Novell and all of its direct customers.) And the GPL doesn't even cover running programs, which is a fair use right under copyright law, but requires a license for patents.

On Novell and Microsoft

Posted Nov 8, 2006 0:41 UTC (Wed) by BrucePerens (subscriber, #2510) [Link]

Perhaps they have a patent license for royalty-free redistribution of any GPL work by all those who receive copies directly or indirectly through Novell.

Well, they've already said it doesn't work that way. They get Microsoft to issue a covenant not to sue to every Novell customer.

But if they did have the sort of license you describe, the whole world could hitch-hike upon it, including Red Hat.

Perhaps they have a patent license for royalty-free redistribution of any GPL work by all those who receive copies directly or indirectly through Novell.

The GPL says "The act of running the program is not restricted" and the language which places activities like use out of its scope is meant to say that those activities are not restricted. Elsewhere in the license is language that does not allow further restrictions upon GPL software, be they for running or any other purpose. So, I don't think a judge would rule that a patent license that allowed distribution but not running would be within the terms of the GPL.

Bruce

On Novell and Microsoft

Posted Nov 8, 2006 0:45 UTC (Wed) by BrucePerens (subscriber, #2510) [Link]

Oops. I garbled above. Strike the last two paragraphs and here's the correction:

And the GPL doesn't even cover running programs, which is a fair use right under copyright law, but requires a license for patents.

On Novell and Microsoft

Posted Nov 8, 2006 21:15 UTC (Wed) by pimlott (subscriber, #1535) [Link]

Bruce, the license text you cited is a "for example", expressly meant to clarify what was already implied. Your position would be stronger if you could argue it from the rest of the license. I claim that you cannot, because the author of the GPLv2 blundered: This "example" does not follow from the rest of the license, and is therefore void. I have stated this case before [cite] [cite] and never gotten a satisfactory answer. I also contributed it to the GPLv3 comment process, [cite] [cite], because I believe v3 section 12 has the same problem as v2 section 7; I also just noticed Alexander Oliva's cunning observation of what it might mean for SUSE customers.

In short, I concur with iabervon's position. I also find it disappointing that the FSF and Eben Moglen continue to assert their interpretation of v2 section 7 without ever justifying it, and that they have not responded to criticism of v3 section 12.

The current draft of GPLv3 does contain explicit language (section 11) that would, I believe, be usable against Novell, and this is a good thing as far as I'm concerned. However, this only strengthens my belief that GPLv2 is lacking in this regard. But I would be happy to be convinced otherwise.

On Novell and Microsoft

Posted Nov 9, 2006 19:33 UTC (Thu) by Fats (subscriber, #14882) [Link]

I think that if FSF wished to, it could enjoin Novell from distributing GNU LIBC under the covenants it has entered into. Perhaps Red Hat would like to fund that suit

I disagree, I think they can only stop Novell from distributing GLIBC under a GPL license if there is really a problem in the code. And if they can stop Novell from distributing it they also have to stop distributing it because they can't guarantee anymore everyone the right to distribute it under the GPL. A catch 22.

On Novell and Microsoft

Posted Nov 10, 2006 0:27 UTC (Fri) by BrucePerens (subscriber, #2510) [Link]

Well, by a problem you mean a patent infringement. Their best approach would be to find a granted patent that reads on code that is in LIBC but that we can do without, and for which the Laches defense applies, and then bring suit upon Novell demanding that everyone must get the same treatement as a Novell customer - or Novell must stop distributing.

This is all assuming that we can convince a judge that the agreement between Novell and Microsoft - not the covenants that result from that agreement - is tantamount to a license.

Bruce