Covenants, licenses, and GPL virality [LWN.net]

Covenants, licenses, and GPL virality

Posted Nov 9, 2006 22:10 UTC (Thu) by giraffedata (subscriber, #1954)
In reply to: On Novell and Microsoft by alexbk
Parent article: On Novell and Microsoft

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."

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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