Novell can no longer legally distribute Linux, SAMBA and OpenOffice.org

Posted Nov 3, 2006 16:58 UTC (Fri) by NZheretic (guest, #409)
Parent article: Various responses to Microsoft/Novell

Novell has put itself into a legal position where it can no longer distribute any GPL licensed products that infringe on any Microsoft patents covered by the Microsoft-Novell agreement. This includes the Linux kernel, SAMBA and OpenOffice.org.

The GPL Preamble clearly states :-

Finally, any free program is threatened constantly by software patents. We wish to avoid the danger that redistributors of a free program will individually obtain patent licenses, in effect making the program proprietary. To prevent this, we have made it clear that any patent must be licensed for everyone's free use or not licensed at all.

Section seven of the GPL license clearly states :-

7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. 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.

Novell does not hold all of the copyrights to the Linux Kernel,SAMBA or OpenOffice.org ( Novell uses and distributes the latter under the terms of the LGPL not SUN's commercial license ), and Novell cannot legally distribute those same GPL licensed products under any license but the GPL. Also any more restrictive terms is a clearly a violation of the GPL!

Both Novell and IBM, in their legal briefs in there cases against the SCO Group, have made it repeatedly clear that the more restrictive SCO IP EULA is a violation of the terms of GPL license. The same GPL license which Caldera, Old SCO and the SCO Group was granted the right to distributed the copyrighted products in the first place.

Novell is in no position to argue that it now has the right to grant it's customers exlusive rights to use the GPL'ed technology that infringes Microsoft's patents. That is a clear violation of section seven of the GPL.

A covenant not to sue is just another name for a "license"

For example : The Licensor is agreeing that it will not sue the Licensee for infringement of Licensors patent. Just changing the terms used for "Licensor" and "Licensee" does not change the fact that it is plainly clear that the agreement represents a license.

I'm sorry Novell, you have been screwed by Microsoft almost exactly the same way Sun was screwed by Microsoft, but will it take almost a year for you to realise it?

you are premature, I think

Posted Nov 3, 2006 17:13 UTC (Fri) by JoeBuck (subscriber, #2330) [Link] (2 responses)

If Microsoft were to sue someone for patent infringement, and Novell were then to say that paying Novell customers have a patent license, at that point it seems clear that Novell could no longer legally distribute the "infringing" work. But this has not happened yet. We don't know the exact terms of the deal.

All that is needed is the threat of a lawsuit : Declaratory judgment

Posted Nov 3, 2006 17:33 UTC (Fri) by NZheretic (guest, #409) [Link] (1 responses)

The SCO Group did not directly threaten Redhat, but the just the threat by SCO to Redhat's customers was enough for Redhat to bring a case before the courts.

Also, unlike SCO lawsuit and most patent cases, it would be a lot easier for a copyright holder of the GPL'ed source to demonstrate actual ownership and request a Declaratory judgment.

All that is needed is the threat of a lawsuit : Declaratory judgment

Posted Nov 3, 2006 18:38 UTC (Fri) by Ross (guest, #4065) [Link]

Actually I recall them naming Red Hat specifically as a company that (supposedly) was benefiting from the alleged infringement. I also remember one of the company officers said something like "there will be a day of reckoning" for Red Hat. I'm sure you can find some similar quotes in Groklaw's quotes database or on the Web in general...