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Novell May be Banned from Distributing Linux
Hymer writes "Reuters is reporting that Novell may be banned from selling Linux. In the wake of the (much maligned) Novell/Microsoft deal, the Free Software Foundation is reviewing Novell's right to sell the operating system at all. The foundation controls the rights to key parts of the operating system, and council for the organization said that 'the community wants to interfere any way it can' with the Novell business arrangement. No decision has yet been reached, but one should be made in the next two weeks." Is this a measured response, or an over-reaction to the Novell/Microsoft arrangement?
Bear in mind that IANAL, but I suspect that the FSF could make life very difficult for Novell if they change the license for all of the many utilities and applications that they control from GPLv2 to GPLv3. Novell would have a lot of work to do if they were suddenly put in a position in which they could no longer distribute the gcc package, GIMP, GNOME, etc. with SuSE or any other Novell-branded Linux distro. There are a lot of small pieces of the overall that use FSF-developed code and are essential to running a Linux system. We could find out how much truth there is to RMS' statement that the overall system should be called GNU/Linux if the FSF goes ahead with this move.
Personally, I would support the FSF if they decide to do this. The Novell/ MS deal is nothing, but a way to provide Novell with a marketing tool, the ability to say "use our Linux distro and be safe from MS patent claims", at the expense of the overall community. Novell is essentially saying that it's OK for MS to sue everyone, except Novell customers, for so-called IP infringements. It is a move by Novell to establish themselves as the Linux monopoly by making their product "safe" from MS lawyers. Novell is hoping that the business community will make wholesale migrations to their products in order to avoid the threat of MS litigation and is a, somewhat silent, partner in MS' efforts to spread FUD about the "use of MS proprietary technology in Linux". Make no mistake about it Novell is evil: to my mind it is more evil than MS in that it portrays itself as a friend of the Linux/FOSS community, while doing whatever it can to undermine the philosphical and legal basis for that community. MS at least makes no claim that Linux is OK - they just flat-out hate us and do everything that they can to prevent the spread of freedom within the community of computer users.
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Fine. Novell can violate any microsoft IP with impunity.
My question is: Can they release that code under the GPL, knowing that it cannot be freely distributed?
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As said in an earlier post, Novell's continuing distribution of GPLd software may be against the GPLv2. They have patent indemnification licenses with MS. This suggests they believe that without those licenses they would be violating patents. Distributing GPL software that your customers cannot then distribute in turn without violating patents is expressly forbidden by the GPL, and if you violate one section of the GPL you have no right to distribute GPLd software at all. Hence they are violating the GPL and the copyright on the GPLd code.
The FSF is shooting itself in the foot big time. They're handing Microsoft a huge victory on a platter.
Consider how this ban will affect those customers of Novell who use Linux. And consider the kind of reputation that this will give the open-source community.
One reason companies pay for expensive proprietary software is that the companies that write proprietary software are considered reliable. They won't suddenly throw a tantrum and refuse to deliver.
If the open-source community is seen as throwing a tantrum and refusing to deliver, then good-bye credibility. Companies just won't dare use open-source software.
Terrorists can't threaten a country's freedom and democracy. Only lawmakers and voters can do that.
I believe not. Section 7 of the GPL states:
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 would seem to have a patent license for any of MSFTs patents. Unless Novell can guarantee anyone who uses their GPL'd code would have the same indemnification, they wouldn't be allowed to distribute the code. Of course, Novell can't guarantee this. In fact, the whole point of the deal with MSFT is so that they are the only ones with such a guarantee.
To get academic, if Novell wrote the code from scratch, they could license the code under the GPL, but I'm not sure how that would work. The GPL can't diminish rights held by the owner of the copyright. One could argue that placing code under the GPL would be a blanket patent license, but that doesn't seem likely to hold up. You'd have to talk to a copyright and/or contract lawyer about that.
This is the crux of the issue: if Novell develops code to extend any existing GPL program to be more compatible with MS software, they have to distribute it under the GPL. By doing this, they are granting everybody else the right to read, modify, redistribute their contributed code. If said Novell-contributed code makes use of MS protected intellectual property which Novell has the newly-acquired right to use, by redistributing it under the GPL Novell will be granting everybody the right to use such protected intellectual property —a right they do not have.
This actually means that Novell cannot legally distribute programs that they changed by adding MS protected intellectual property, if and when they will do such changes. The GPLv3 has nothing to do with it: Novell would be in breach of contract even for GPLv2 programs.
Indeed if Novell does make MS-IP-protected changes to GPL programs and if they do distribute such modified programs (which they must do under the GPL, if they do it at all), it's up to Microsoft to go after them, because Novell would be granting other people rights (the right to use MS protected IP) they (Novell) don't have the right to grant. That's because the Novell-MS deal only protects Novell customers, but the Novell-released GPL products would also be accessible to non-Novell customers, so by distributing such modified programs Novell would be breaking its side of the deal with Microsoft, and not just their contract (licence) with the copyright owners of the GPL programs they would have modified. The FSF (or any other GPL-program-copyright-holder) cannot prevent Novell from distributing their programs currently, but they can sue Novell for breach of contract if and when Novell starts distributing versions of GPL-protected programs modified to include MS-IP-protected changes.
IOW, Novell has wedged itself in a situation where they can't really exploit the potential benefits of their deal with Microsoft without getting sued by Microsoft, the FSF, or both.
Finally, a question for the lawyers, if there are any here: if Novell does distribute such conflicting changes and if MS chooses not to sue Novell over this, can they (MS) go after anybody else? Don't they lose the rights they choose not to defend?
"I'm never quite so stupid as when I'm being smart" (Linus van Pelt)
What we see is a problem I noticed a while ago. There are TWO main groups in the Linux community: the pragmatists and the idealists.
The pragmatists want a Windows alternative. They want Linux to be this alternative. License issues are secondary. This group well accepts closed-source software and -drivers. Their primary goal is to push Desktop Linux so that MS is no longer the hyperpowerful monopoly.
The idealists want everything to be free. They couldn't care less about Linux being popular, they want a 100% free system, even if it means that only 5 people in the world use it.
The FSF belongs to the latter group. However, one argument the pragmatists definitely have is by not pushing Linux the idealists ultimately give MS carte blanche to redesign the IT sector to their liking. This can't happen if there is a real competitor. In the end, Linux may not run at all on *any* PC because of this.
This is why I wonder why BSD wasn't pushed. It does not have any license worries, and could work just as well on a desktop.
This sig does not contain any SCO code.
Wow, it's a very dangerous FUD article... Reuters is trying to make the FSF looks worse than it is (I am one of the people thinking the GPL-2 is far enough, and the license should stay as simple as possible, and I think the GPL-3 is really bad, and will hinder -and certainly, has already- the adoption of Linux, by new companies), and make other companies think their Linux business could be destroyed, if they did anything to "anger the Linux people"...
There is a very clear manipulation of what has been really said, and this is very bad indeed...
This is not just "hype" or "unnecessary waves"... the FSF should react far more strongly. Do you have a right to force Reuters to publish a reply by the FSF, in the US? An article on linux-watch.com surely won't be read by the same people reading Reuters, and the FSF must make things clear to the people who don't read linux-watch.com, because making ennemies of these people won't lead to any benefit for Linux, and, more importantly, will hinder Linux adoption by new companies, including companies involved in hardware, and drivers for hardware...
"Ahhh, another AC spreading FUD..."
I don't see any FUD anywhere, at least not the D[oubt]. The FSF foundation is: "reviewing Novell Inc.'s right to sell new versions of Linux operating system software".
The FSF is doing a review of the matter to see if they can stop Novell (stop why? read below). Perhaps they can find a legal reason to stop Novell and perhaps they won't, but that the review is taking place isn't in [FU]Doubt.
What also isn't in doubt is that people (esp. the FSF, enough to do a review) are not impressed with Novell making back room deals with Microsoft in an apparent effort to circumvent the GNU GPL in playing patent agreement games.
The uncertainty is not really an issue, the FSF is making it clear that the will either restrict Novell now in using the FSF's software (if the review is successful), or they will be restricted (from using the latest FSF versions) later when the GNU GPLv3 comes out and the FSF moves all of its software over th the license which will prevent patent games.
As for Fear, I'd be afraid too if I was Novell going down the path it's on. They can remove any fear if they choose to back out of their Microsoft deal - the choice is theirs. What isn't their choice is to make use others' works without, at the very least, deference to the license it's under.
6. Courts: "Nope, it hasn't been sublicensed to you"
But in doing that the courts would be affirmatively establishing a contract violation. That is the Novell claimed to be distributing all patent rights they had when the distributed the software under the GPL. The non customer could then argue that they acted in good faith. I think the non customer has a pretty strong claim that any monies owed microsoft are owed by Novell.
Further you might get
6a. licensing code containing your patented material to be distributed in a GPL product constitutes a waver of patent and thus there is no more enforceable patent with respect to this code. A very reasonable outcome btw.
But other companies don't come with DIRTY HANDS to the table. They never acknowledged Microsoft's claims. Novell on the other hand, at least implicitly, does. That's what their deal with MS is all about. Novell can't have it both ways.
Apart from legal nitpickings, imagine a reversed situation. We find a way to distribute Vista for free by a loophole in their EULA. Now do you really expect MS to not try to remedy this?
Therefore, the OSS community has every right to protect the spirit of the GPL vigiously. If that means to retaliate with FUD and legal means, that's just the weapons first chosen by the other side, and Novell is their pawn caught in the middle. Chances are they will go the way of all former MS partners (replaced next OS iteration), but they made their own bed in this. Bye Novell, you have provided some good products in the past.