Samba Team Asks Novell to Reconsider [LWN.net]

Samba Team Asks Novell to Reconsider

Posted Nov 13, 2006 14:36 UTC (Mon) by cventers (subscriber, #31465) [Link]

What Novell is doing isn't indemnification. Red Hat does indemnification.

What Novell is actually doing is intentionally very hairy and poorly
described, because it quite possibly runs afoul of the GPL. They have
paid for a 'covenant not to sue' (let's stop beating around the bush and
call it a 'license', which is precisely what it is).

The problem with this kind of license is that it imposes an additional
restriction, which GPL expressly forbids. If Novell was paying Microsoft
for anything other than hot air and FUD, it would mean that Novell
breached the GPL by engaging in some kind of Novell-exclusive
distribution rights over the covered works. Any patents in question would
become tools of making the programs effectively proprietary, by imposing
distribution limitations that are not equally applied to all recipients
of the code.

Samba points this out:

> The patent agreement struck between Novell and Microsoft
> is a divisive agreement. It deals with users and creators
> of free software differently depending on their "commercial"
> versus "non-commercial" status, and deals with them
> differently depending on whether they obtained their free
> software directly from Novell or from someone else.
>
> The goals of the Free Software community and the GNU GPL
> allow for no such distinctions.

The whole idea behind the 'free' in 'free software' is that end-user
rights are protected, and the whole idea behind the GPL is to ensure that
all end-users and distributors have the same rights. Applying any kind of
auxiliary licensing in the distribution process is wrong, and that's
exactly why so many people are really pissed off at Novell.

Samba Team Asks Novell to Reconsider

Posted Nov 13, 2006 17:25 UTC (Mon) by jayorke (guest, #10685) [Link]

> What Novell is doing isn't indemnification. Red Hat does indemnification.

If Microsoft finds something in Linux that is their own and decides to go the SCO route of going after companies using Linux then what is Red Hat's idemnification worth?

According to Red Hat's website:
> The Open Source Assurance program is designed to allow customers to
> continue to use their chosen open source solution without interruption.
> It does this by either (i) replacing the infringing portion of the
> software, (ii) modifying the software so that it becomes non-infringing
> or (iii) obtaining the rights necessary for a customer to continue its
> use of the software.

Both (i) and (ii) will not happen instantaneously to protect the customer so lets focus on (iii). If there is code in Linux in violation of a Microsoft patent then Red Hat would need to buy the patent or pay licencing fees (which would certainly violate the GPL if distribution continued) for that patent. If Microsoft didn't want to sell their patent (why would they) then Red Hat would basically be paying Microsoft money not to sue its customers and paying licencing fees for the patented materials. Meanwhile over at Novell they would also be finding a way to do (i) and (ii) and would have stopped shipments until (i) or (ii) is accomplished but they wouldn't be breaking the bank protecting customers because they already did that with this agreement and they wouldn't be in violation of the GPL because they wouldn't be paying to licence anything.

This deal seems a lot like a bilateral version of a protection found in item (iii) in the Open Source Assurance Program minus knowing what infrigements might exist.

> What Novell is actually doing is intentionally very hairy and poorly
> described, because it quite possibly runs afoul of the GPL. They have
> paid for a 'covenant not to sue' (let's stop beating around the bush and
> call it a 'license', which is precisely what it is).

I don't think you can call it a licence because it doesn't give rights to anything. Take the agreement from the standpoint of Novell wanting to legally protect its customers who use Linux because Linux has a lot of code which hopefully does not contain patented methods or copyright violating code, but it might contain those things. How does Novell sign a deal with Microsoft, holder of a whole bunch of software patents, such that it can protect Linux customers against any possible patent or copyright violations which may be in the open source code that a whole lot of non-Novell employees contribute? After SCO there are probably some potential customers that are scared to use open source software and what can be done to alleviate some of that FUD.

Microsoft as a company is a unique threat to companies using Linux in that (a) it holds a lot of patents, and (b) unlike IBM, HP, Novell, and other large patent portfolio holders it doesn't support Linux and probably would prefer it to go away. In order for Novell to remove the fear customers may have with using open source software possibly containing infringing code Novell has no knowledge of, it makes sense to alleviate the risk to its customers.

I guess we will have to wait to hear what the Software Freedom Law Center has to say when it completes its review. Novell seems pretty adamant that they have not violated the GPL.

Samba Team Asks Novell to Reconsider

Posted Nov 13, 2006 18:16 UTC (Mon) by cventers (subscriber, #31465) [Link]

You're not reading far enough into the website you quote.

Red Hat's Open Source Assurance program is just as you quote. Red Hat's
indemnification is an additional new feature that means Red Hat will step
in for legal defense.

Also, I don't see how you could call it anything /but/ a license. Trying
to call it anything else is just spin. A patent license is a covenant not
to sue for patent infringement, and a covenant not to sue for patent
infringement is a patent license.

No specific infringements have been identified, which makes the
arrangement with Microsoft a blanket patent license for their whole
portfolio, as it might apply to SUSE Linux.

Samba Team Asks Novell to Reconsider

Posted Nov 18, 2006 3:25 UTC (Sat) by pimlott (subscriber, #1535) [Link]

The problem with this kind of license is that it imposes an additional restriction, which GPL expressly forbids.

Challenge: State precisely what "additional restriction" Novell is imposing. I don't think you can find one without contortions. (Thus I think the common interpretation of GPL section 7 is bogus.)

Samba Team Asks Novell to Reconsider

Posted Nov 13, 2006 15:51 UTC (Mon) by marduk (subscriber, #3831) [Link]

I don't agree with that rationale simply because, in order for it to truly be effective, Novell would have to sign a patent agreement with every software distributer that can potentially sue due to patent infringement. The deal with Microsoft just gives a false sense of security. It doesn't prevent anyone else (e.g. SCO) from coming and taking Novell or it's customers to court.

Samba Team Asks Novell to Reconsider

Posted Nov 14, 2006 2:48 UTC (Tue) by MarionR3 (guest, #7317) [Link]

Let's understand something hear, this is not about patents at all, nor
any 'right' or 'freedom' to use them. This is about commercial control
of the SuSE/Novell distribution of Linux, which essentially means the
software under the distributions umbrella of software. Remember Linux is
not a complete operating system, so when you consider what SuSE is as a
distribution recall that you have thousands of pieces of software
combined and distributed by a company who commercially benefits from the
use of the distribution, not necessarily the sell of the system itself.

Customers pay a support fee for SuSE Enterprise server, which has several
packages giving its' commercial customers a high level of functionality,
and options in services their business' can offer to promote them, or
improve their productivity. (we all agree on this part right? Ok.)

Novell has the same rights everybody else has whether they are selling
it, or supporting it. If someone copied their business model they can
benefit and profit as well. This also means that Novell does not have
the right to restrict that competitor from conducting business, and
profiting from the use, sale or support of their specific distribution.
Novell couldn't stop client interaction with the competitor insofar as
contractual agreements for support may allow. This is a wholly different
matter. Now if Novell wants to be the equivalent of the
kid-who-took-his-ball-and-went-home. They could prevent further
distribution of their specifc software contribution to any distro if they
decided they wanted to remove the software, but then they cannot
distribute it to anyone, so either your in or your out.

Where the problem comes in is that Novell presumes that as a large
commercial distributor of linux that they now have assumed the right to
protect the software at-large - This is not their responsibility, nor is
it their right, and by assuming this role they are declaring that they
can restrict commercial use only, but leave personal use, as well as
development, which leads to innovation free.

No, sorry, you can't do that.

Samba Team Asks Novell to Reconsider

Posted Nov 14, 2006 2:51 UTC (Tue) by MarionR3 (guest, #7317) [Link]

Let's understand something here, this is not about patents at all, nor
any 'right' or 'freedom' to use them. This is about commercial control
of the SuSE/Novell distribution of Linux, which essentially means the
software under the distributions umbrella of software. Remember Linux is
not a complete operating system, so when you consider what SuSE is as a
distribution recall that you have thousands of pieces of software
combined and distributed by a company who commercially benefits from the
use of the distribution, not necessarily the sell of the system itself.

Novell has the same rights everybody else has whether they are selling
it or supporting it. If someone copied their business model they can
benefit and profit as well. This also means that Novell does not have
the right to restrict that competitor from conducting business, and
profiting from the use, sale or support of their specific distribution.
Novell couldn't stop client interaction with the competitor insofar as
contractual agreements for support may allow. This is a wholly different
matter. Now if Novell wants to be the equivalent of the
kid-who-took-his-ball-and-went-home. They could prevent further
distribution of their specifc software contribution to any distro if they
decided they wanted to remove the software, but then they cannot
distribute it to anyone, so either your in or your out.

Where the problem comes in is that Novell presumes that as a large
commercial distributor of linux that they now have assumed the right to
protect the software at-large - This is not their responsibility, as it
states in the GPL it is the responsibility of the copyright holder to
protect their software if this license is not adhered to. Yet by
assuming this role they are declaring that they can restrict commercial
use, but leave personal use as well as development free.

No, sorry, you can't do that.

So by allowing this to happen the software copyright holders, and
contributors have a right, and a responsibility to uphold the license of
this software en-masse, and prevent Novell from becoming the patent agent
in charge from the big bad wolf of Microsoft. No, not their job - use,
sell, support, develop, contribute, improve, release improvements - yes.

Restrict IBM, and not bobby who lives up the street and just got his
first distro, wants to give it a try, naw - that's not the plan.

Samba Team Asks Novell to Reconsider

Posted Nov 14, 2006 2:17 UTC (Tue) by MarionR3 (guest, #7317) [Link]

The Problem begins with the agreement, the GPL does not allow any
developer or user of GPL code to form licenses or agreements which
restrict the rights of any other potential developer or user of the
software to benefit from the software as long as they do not try to
impose restrictions to the rights of others in the pursuit of similar
uses. Such as a database software I know of was developed by a company
for specific use, and release under the GPL. The company does not
restrict commercial or personal use of the software (i.e. you can use it
at home or you can use it in a business) as long as the original
copyrights, and licenses remain in place. If a company or individual
using the software however try to claim the software, or add extensions
to the software as their own the license makes it clear, that they would
not be the original copyright holder, and have no right to the software,
nor the extensions that they have added.

On another note Microsoft's cooperation with Novell permits individual
use, but prevents commercial use - a GPL no-no, this causes a conflict as
the license indicates that the user, or distributor is a benefactor of
the software, and all it's enhancements. Use is free to anyone for any
purpose so long as all copyrights remain in place, and no infringement on
others rights to benefit from the use of the software takes place.

The problem with this deal is that Novell, in similar fashion to SCO I
hate to say claims that it as a distributor of linux has some right to
form an agreement outside of the GPL to benefit from this software, in
their case commercially, and to restrict the use of the software to other
commercial users - nope can't do that!

Because the GPL states, that anyone has the freedom to redistribute the
software which is under the GPL as long as they do not restrict the
rights of the eventual recipient of same. This is where the problem
comes in - I would site the GPL, but I'll link to it so as not to take it
out of context (it asks you to not change it anyway - so let's keep with
the spirit, eh?).

http://www.opensource.org/licenses/gpl-license.php