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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.
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.