The more I think about the Novell agreement, the more it stinks [LWN.net]

The more I think about the Novell agreement, the more it stinks

Posted Nov 30, 2006 18:31 UTC (Thu) by emk (subscriber, #1128)
Parent article: Who is being divisive?

Novell's patent agreement with Microsoft is a clever legal hack that attempts to (and probably succeeds in) weasling around the GPLv2's patent provisions. But as a GPL software author, I really don't like being thrown to the wolves in such a fashion.

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.

As such, I think I'm well within my rights to call for boycott of Novell's products, and to publicly criticize their actions. Granted, my criticism of Novell might seem premature and "divisive." But Novell's patent agreement makes it very clear that I'm not a member of their community. That community includes Novell's customers and employees, but apparently not the people who write the software.

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The more I think about the Novell agreement, the more it stinks

Posted Nov 30, 2006 18:49 UTC (Thu) by lmb (subscriber, #39048) [Link]

Which wolves have you been thrown to? What has become worse for you?

It is of course within your rights to boycott Novell's products. But companies have always made certain things available to their customers (I believe the technical term is "offering goods and services for sale"), so that, by itself, can hardly be a reasonable attack vector.

The more I think about the Novell agreement, the more it stinks

Posted Nov 30, 2006 22:11 UTC (Thu) by emk (subscriber, #1128) [Link]

What has become worse for you?

Well, I'm making two assumptions here:

Microsoft can bring a plausible patent infringement claim against almost any open source project. And lately, they've been advertising this fact very loudly.
There's no point in Novell signing a patent non-aggression pact covering SuSE users unless Novell expected someone to start suing Linux users.

So from my perspective, it looks like Microsoft is threatening to sue me (in my role as Linux user and/or developer of GPL'd software), and that Novell has cut a special deal with Microsoft to protect their users. But Novell has chosen not to protect the people who wrote the software--we apparently matter less than Novell's paying customers. Or to put it more succinctly: "Hey, thanks for your code. Have fun getting sued by Microsoft!"

Not only is Novell's position rude, it violates the spirit (if not the letter) of GPL section 7: 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.

As an author of GPL'd software, I want Novell to respect the spirit of section 7: If you can't give a license to everybody, please refrain from distributing any of my GPL'd code. My copyrights are only licensed to people who share and share alike, not people who cut special deals to protect themselves.

Now, I've heard it claimed that Novell's deal is technically a patent "covenant", and not a patent license, and that section 7 of the GPL therefore does not apply. But frankly, this is just weaseling. And if this is the best argument in Novell's defense, then shame on Novell.

The more I think about the Novell agreement, the more it makes me think

Posted Nov 30, 2006 22:43 UTC (Thu) by lmb (subscriber, #39048) [Link]

Novell did not, and still does not, expect anyone, least of all MSFT, to start sueing anyone for patent claims. Our customers had unsubstantiated fears - and we managed to make a lot of cash (by means of handing out Linux to more customers, no less!) and calm those irrational concerns. I find it hard to disagree with that.

You really think MSFT will sue an OSS developer, or even a customer? The mind boggles. Their PR machinery wouldn't allow that. How much money could they make from that? How much would they lose? What would the impact of that be on the various patent reformation projects?

And the statement from MSFT to not sue individual contributors needs to be made much broader, that would be better still. No doubt. Let's see.

Nothing you had before has been taken away from you. I don't even, personally, believe that the factual situation of anyone's customers have changed. Sueing a customer? That company is very unlikely to make big inroads anywhere. Only a patent troll would do that. So, it can only have been about calming unsubstantiated fears. And yeah, Ballmer tried to spin it differently, but it's clear he has failed.

The main focus is the cooperation on virtualization, office and so on. And apparently the realization that at least for the next so many years, neither OS will totally replace the other - so a joint marketing campaign tends to make sense for the companies. From a Linux enthusiast point of view, I'd love to have them all use Linux only (as an employee, it means more revenue ;-), but reality disagrees. People still use it as a boot loader for games, for one thing, and businesses apparently - unfortunately - have similar needs.

So, let's make Linux kick ass so that it can replace Windows for everyone. That sounds like a good plan. World domination is inevitable.

Why section 7 matters to me, and why you should care what I think

Posted Nov 30, 2006 23:12 UTC (Thu) by emk (subscriber, #1128) [Link]

You really think MSFT will sue an OSS developer, or even a customer?

Right now, Microsoft would have great difficulty suing Linux users, because section 7 of the GPL keeps IBM, RedHat and other big Linux players from settling. For example, if IBM settled a patent lawsuit with Microsoft, section 7 would force them to stop distributing Linux (costing IBM billions of dollars). Given the stakes involved, IBM would be forced to fight, presumably by using their massive patent portfolio against Microsoft. And neither Microsoft nor IBM wants to go there.

Basically, section 7 of the GPL is mutually-assured destruction mechanism for big Linux players. Now, you may think that section 7 will never be needed, and that's your perogative. But as a copyright holder, I suspect that section 7 is the only thing standing between us and total patent doomsday.

Now, because I feel that software patents are a real danger (again, I'm not asking you to agree with me), I chose to release my software under the GPL. Novell, as a redistributor of GPL'd software, has three choices: (1) Refrain from distributing my software, (2) comply with my license, including that weird provision in section 7, or (3) negotiate a separate license with me. I'm happy to offer Novell different terms if I'm getting paid!

Now, if Novell has found a loophole in section 7 (the whole "license" vs "covenant" distinction), then they can get away with this Microsoft deal. But from my persepctive, they're exploiting a bug in my license, and that bug will be fixed.

And as for Novell: Please remember that GPL'd software is not in the public domain, and that its authors still hold valid copyrights that you must respect.

To put it in even simpler terms

Posted Nov 30, 2006 22:35 UTC (Thu) by emk (subscriber, #1128) [Link]

What has become worse for you?

Under US law, I hold copyrights in my work. I have the exclusive right to distribute and sublicense that work. If an unauthorized party distributes my work, I'm legally entitled to damages.

Now, section 7 of the GPL is pretty clear: It only allows people to redistribute my work if they provide patent licenses to everyone, not just their immediate customers. If they can't meet that requirement, the GPL forbids them from distributing my code at all.

Now, I suppose you could argue that Novell signed a "patent convenant" and not a "patent license", and that section 7 is therefore irrelevant. But short of this kind of legal sophistry, Novell's deal with Microsoft harms me in a way explicitly recognized by US law: They're redistributing my copyrighted code without a valid license.

To put it in even simpler terms

Posted Dec 1, 2006 14:42 UTC (Fri) by pzb (subscriber, #656) [Link]

You said:
> Now, I suppose you could argue that Novell signed a "patent convenant"
> and not a "patent license", and that section 7 is therefore irrelevant.

This is just what the Free Software Foundation said:
> What has happened is, Microsoft has not given Novell a patent licence,
> and thus, section 7 of GPL version 2 does not come into play.

Richard went on to say:
> It turns out that perhaps it's a good thing that Microsoft did this now,
> because we discovered that the text we had written for GPL version 3 would
> not have blocked this, but it's not too late and we're going to make sure
> that when GPL version 3 really comes out it will block such deals
(from http://fsfeurope.org/projects/gplv3/bangalore-rms-transcript)

Based on this, I would suggest that Novell has not harmed you, as defined under US law, yet. If you relicense under only the GPL v3 (or later), and it is incompatible with this deal, then you would be harmed. However, from Eben Moglen's recent comments, it appears the FSF is not attempting to draft the GPL v3 to prevent Novell from distributing, rather to cause Microsoft to provide broader covenant than originally intended.

To put it in even simpler terms

Posted Dec 1, 2006 18:23 UTC (Fri) by BrucePerens (subscriber, #2510) [Link]

Based on this, I would suggest that Novell has not harmed you, as defined under US law, yet.

This is like saying that someone is not harmed if there is a law against punching him in the nose and you kicked him in the nose instead. The harm definitely exists, but the law was not written to catch it.

Regarding whether GPL3 will prevent Novell from distributing or Microsoft from granting covenants, it will prevent Novell from distributing if they want to preserve the covenants that Microsoft is supposed to grant to Novell customers.

Bruce