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On Novell and Microsoft
On Novell and Microsoft
Posted Nov 8, 2006 0:12 UTC (Wed) by alexbk (subscriber, #37839)In reply to: On Novell and Microsoft by BrucePerens
Parent article: On Novell and Microsoft
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.
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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