Please explain [LWN.net]

Please explain

Posted Nov 29, 2006 17:47 UTC (Wed) by BrucePerens (subscriber, #2510)
In reply to: Please explain by nat
Parent article: Who is being divisive?

Nat,

Bruce, could you explain why you think Novell has increased the level of peril for other free software entities?

First, that's just what Novell is trying to do - increase the peril of other free software entities relative to Novell. by creating an agreement that gives Novell the sole "microsoft-lawsuit-proof" path to use the community's software, and thus FUDs all other distributions as being "microsoft-lawsuit-prone".

Second, you're trying to rationalize away what Novell has done by telling yourself that it does not increase the level of peril for other distributions. But the GPL terms are that Novell must face the same level of peril as everyone else - by foregoing exclusive patent licenses - or not distribute the software at all. This is meant to put Novell in the same boat as everyone else and thus align their interest in solving the problem with everyone else's. Novell acted in bad faith by creating a fiction of covenants rather than licenses in order to circumvent its previous agrement with thousands of GPL programmers. Novell doesn't have to share our risk, and yes our peril is now greater than yours.

And yes, Novell has broken the GPL - the covenants are clearly outside of the intent and only (maybe) within the letter due to a legal fiction that covenants are not licenses. Welching on Novell's GPL partners that way is a bad-faith action for which you should be ashamed - regardless of whether or not it would slip through a court by a hair.

And Novell has in fact contradicted those rumors in an open letter from our CEO where he states that Novell in no way acknowledges that Linux infringes MS IP.

But that's just perpetuating a lie. Microsoft patents have claims that read upon many algorithms and techniques used in Novell Linux and the GNOME GUI. Microsoft even has a patent on double-clicking that can be read to apply to a mouse. Now, I don't feel that a just world would have granted those patents, but they exist. Did you ever think that 5000 software patents from a company that makes an OS, GUI, and applications would not cover anything we've written? If you search for software patents from all companies, not just Microsoft, there are no non-trivial programs - be they free or proprietary - that do not contain material covered by patents currently in scope and unlicensed for use in those programs.

There's a company called Open Source Risk Management

I was on the board of OSRM to keep it honest. I've never made a cent from it and never will. We had Dan Ravicher, who was at that time a volunteer counsel for the Free Software Foundation and is now leader of the Public Patent Institute and an attorney for the Software Freedom Law Center look for potential, unlitigated, infringements in the kernel. He found 283. Dan confirmed what we all knew.

OSRM's dream was to provide an indemnity to any enterprise that cared to pay, not coupled to any distribution, and not coupled to any patent holder but equally defending against all of them. If that had worked, the company would have been able to aggregate Open Source defense and make it much less expensive. And its defense would have defended the software for all users. It didn't work, IMO because of the way it was operated - not any problem in the idea.

It is not FUD that Open Source infringes. All software infringes. That's the plain truth and we need changes in legislation because of it. Novell's denial of that is prevarication to rationalize that they are not doing damage.

Novell does place in peril efforts to solve the software patent problem for everyone, because now Novell will be at the side of the proponents of software patenting in telling EU legislators and others that there is a "legal" path for using Linux - theirs alone - and that legislative change will not be necessary.

In summary, I sincerely believe that your ethical position really stinks. You should be out of there, Nat.

Bruce

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Please explain

Posted Nov 30, 2006 0:58 UTC (Thu) by erwbgy (subscriber, #4104) [Link]

For the other side of the story see:

and note that Novell is a member of the Open Invention Network whose is aim is to promote innovation by protecting developers from patent attacks using the threat of the very same weapon.

It seems to me that your petition is just as devisive as your handling of the UserLinux Gnome/KDE discussion and will probably be as successful.

Please explain

Posted Nov 30, 2006 1:17 UTC (Thu) by BrucePerens (subscriber, #2510) [Link]

Novell is a member of the Open Invention Network

OIN holds 13 patents. Perhaps it can be significant someday, but right now I'd say it's a token.

Regarding the patent policy, what they write on their web site is public relations. What they have said in front of legislators was different. I was there when Novell declared its support for software patenting in the EU. They did oppose the particular patent bill at the time, because they didn't like the language. Will they oppose EPLA? They aren't showing any signs of doing so.

Bruce

Please explain

Posted Dec 1, 2006 16:34 UTC (Fri) by nat (guest, #41935) [Link]

Have you looked at the OIN patents, Bruce? OIN holds significant patents on ecommerce that affect just about every large company in this industry.

I'm sure you know that quality of patents and the value of the infriging business can be just as relevant as number.

Anyway, I'm proud of Novell's contributions to OIN. In the US, software patents exist. Is that perfect? No, absolutely not. But at least we're trying to work within that system to provide safety and comfort to free and open source developers.

Please explain

Posted Dec 1, 2006 17:11 UTC (Fri) by BrucePerens (subscriber, #2510) [Link]

Nat,

I have looked at OIN's 13 patents. First, it's a small portfolio about which Novell blows its horn much more than the content warrants. Second, as you are well aware, this patent portfolio would be ineffective against "patent trolls", companies that produce nothing but patents. Microsoft has already invested in Intellectual Ventures, one such troll. By bringing a proxy attack as with SCO, using a troll this time, Microsoft could avoid OIN and indeed could avoid its own agreement with Novell.

Bruce

Please explain

Posted Nov 30, 2006 12:39 UTC (Thu) by superstoned (subscriber, #33164) [Link]

i think you're being unfair to Novell. if you look at the reason why they
did this, i think it's hard to say they're doing wrong.

customers where afraid to use Novell's linux software because they didn't
want to get sued. now they wouldn't get sued, or at least, it would be
very unlikely. but they still didn't want Novell, likely or not. now
Novell makes this deal, and no matter if it really makes a difference or
not, it *feels* different to those customers afraid for patent trouble.

this was and i'm sure still is mostly about 'feeling' not 'fact'. the
money MS and Novell are paying each other is about 'feel', not 'fact', and
the effect on their customers is the same. and the reasons you and many
other Free Software users are against the deal is the same: 'feel',
not 'fact'.

Novell is cowardly, not evil

Posted Dec 1, 2006 8:08 UTC (Fri) by robla (subscriber, #424) [Link]

This situation is somewhat reminiscent of the old joke about the two campers and the bear. Novell isn't trying to be faster than the bear, just faster than the other Linux distributors. Yes, that means the odds for everyone else becoming bear food just went up a little bit. Novell's action is cowardly, but we should be worrying about the bear rather than the guy who got out while he could.

Novell is a publicly traded company trying to sustain a ~$1 billion/year business by revenue (much bigger than Red Hat). They fund a lot of free software development, and still do a lot of cool things that they don't really have to. They aren't perfect, but they've been pretty good citizens. I'm sure removing the line in "risks" section of their annual report about Microsoft suing them and their customers into oblivion seemed like it was worth quite a bit of money. Criticizing them for taking the easy way out this time is fair; demonizing them is not.

Bruce, you wrote: In summary, I sincerely believe that your ethical position really stinks. You should be out of there, Nat.

I think your attitude toward Nat stinks. You as much as anyone should know just how hard it is trying to get a large company to do the exact right thing all of the time working from the inside. Nat has done a fantastic job getting Novell to do the right thing more often than not, and I'm betting he's having all sorts of arguments with the other executives at Novell about how to do a better job. Knowing that he's paying attention to what you're saying, you should be giving him cogent arguments, not reinforcing the stereotype that all free software advocates are so dogmatic and inflexible that they'll never be pleased, and it's best to ignore them and focus on paying customers.

Novell is unethical, which is evil in my book

Posted Dec 1, 2006 8:39 UTC (Fri) by BrucePerens (subscriber, #2510) [Link]

The part I can't excuse is the cheating of GPL programmers. As LWN subscriber "emk" explains here:

I release my work under the GPL for a reason, and I expect my license to be honored, and not treated as an obstacle for clever lawyers to work around. Regardless of what Microsoft does in the future, Novell has already sent me a very clear message: They're happy to make a buck off my work, but they can't be bothered to deal with me in good faith.

What Novell did is not missing "the exact right thing". It's a willful, knowing, explicit cheat of a large group of unpaid software contributors by a $1 Billion/year company. I do not believe there is any way to portray it as an ethical action. And Nat's tasked with being their apologist, which puts the ethical issue right in his lap.

The Novell cheat also strikes right to the heart of Free Software development. If it becomes commonplace that companies can disregard their covenants with developers and suffer no consequences, the vast majority of our developers, who desire sharing with rules rather than to make an outright gift, will not be motivated to share any more software.

I wonder if Microsoft realized that, and if this is really an attack on the viability of the GPL.

Bruce

No, just dumb

Posted Dec 1, 2006 9:25 UTC (Fri) by robla (subscriber, #424) [Link]

Never attribute to malice that which can be more easily explained by stupidity. I'm guessing most of the executives didn't realize the gravity of what they did. And now that the deed is done, it's probably too late to undo it.

I'm not calling it "ethical". I called it "cowardly", and now I'm adding "stupid". And I suppose that you may have license to attack Nat after he laid into you about the OSRM thing. But there's no good reason to. For all we know, he's the voice of reason inside of Novell, and may figure out how to make Novell do the right thing.

Look at the steps

Posted Dec 1, 2006 9:53 UTC (Fri) by BrucePerens (subscriber, #2510) [Link]

Rob,

It's difficult to believe this is "just stupid" because of the steps involved. It does not seem possible that the agreement was initially drafted with the covenants and with no knowledge of GPL section 7, since the use of covenants would be needlessly overcomplicated for such circumstances.

Someone had to decide to engineer a loophole and thus cheat those developers. Both companies had to agree to implement the loophole for each other. Counsel had to understand that the loophole was outside of the spirit of the previous agreement with unpaid contributors. Management must have heard about that as part of their exercise of due diligence.

Remember when you had to make a pragmatic decision about Free Software at Real Media? I was fair to you. I don't lambaste a company if it's not warranted.

Bruce

Look at the steps

Posted Dec 7, 2006 9:56 UTC (Thu) by forthy (guest, #1525) [Link]

I'm a bit confused with the official interpretation of section 7 of the GPL. The "patent license" there is an example. It's not that section 7 just talks about how patent licenses ought to be dealt with, it gives an example how legal issues ought to be dealt with - patent licenses (for example), convenants (not an example), whatever. Section 7 is just a clarification by example what the rest of the GPL means: You can't put other contracts in place which allows direct distribution, but would prohibit redistribution; whatever these contracts are.

So IMHO, a convenant not to sue might violate the GPL once one party does indeed sue someone else. The issue still is complicated, since patent holders have the right to discriminate. You can tolerate violations from party A, and sue party B over the patent, just because you don't like B's nose, annual turnovers, or whatever. Unlike violating copyright, violating patents is not a criminal offense.

BTW: By (non-commercially) producing software that's incorporated into SuSE, I'm covered by the MS-Novell deal. I didn't do anything to it, but the fact that I'm covered means that I would violate the GPL when I distribute my software. That would be ugly. Fact is: the patent law is a minefield.

No, just dumb

Posted Dec 2, 2006 0:02 UTC (Sat) by shieldsd (subscriber, #20198) [Link]

Hear, hear!

I've always felt that, to a first approximation, incompetence is a much more likely explanation of an unexpected act than malice.

As an example, the elaborate theories that people are proposing here -- to "explain" what MS and Novell are up to -- may say more about the intelligence of the proposers than the malice of the corporations.