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?

Comments

I'm confused

[rm999]

"The two companies agreed to jointly sell their products and also develop technologies to make it easier for businesses to use Linux alongside Windows software."

Why is that so bad?

Re:I'm confused

[Anonymous Coward]

It's bad because the GPL says (section 7):
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.
... and that allthough Novell hasn't itself (officially) payed any patent license to Microsoft, they have implicitly acknowledged that the users of the software they sell need a promise from Microsoft not to sue. If there's any reason to do that, then the Novell customers have not gotten the right to re-distribute. Section 2.b og the GPL:
You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.
.. and therefore Novell would properly fall under section 4 of the GPL (at least in spirit):
Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License.

Re:I'm confused

[mverwijs]

It is not about the jointly selling of their products. It's about the way the products are developed.

Microsoft and Novell have agreed not to sue each other over patent violations. Therefor, Novell can now (continue to?) develop software that violates Microsoft's "Intellectual Property".

The catch is: Novell develops GPL software. It helps *existing* GPL'd projects, like Evolution, SAMBA, OpenOffice.org.

Novell doesn't have to worry about patent violation anymore, so they can code whatever they want into those type of projects. The Community, however, does not have this luxury deal with Microsoft.

SAMBA could get sued. Debian could get sued for distributing SAMBA. All kinds of nastiness that may never happen, but scares the hell out of people. Scares them enough to stay away from all those 'nasty hacker' distributions, and go for Litigation Free Novell Linux.

*That* is why it is bad. That is why we should do everything and anything to stay away from Novell.

Regards,

mverwijs

Re:I'm confused

[squiggleslash]

I can't believe the majority of the responses act as if that is what the FSF is objecting to. The FSF (together with most of the developers in the GNU/Linux community) is objecting to a part where Microsoft provides Novell customers with a patent indemnity, which does not apply to non Novell customers.

In other news: Tensions rise with Iran, which is a country that has 28 television stations.

Geez. Why the hell would you be concerned that Iran has 28 TV stations? What a stupid thing to threaten war over!

Re:I'm confused

[MMC Monster]

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?

Re:I'm confused

[elronxenu]

It's bad because Novell is paying Microsoft for the use of Microsoft patents in Linux. Linux is free software. When we speak of free software, we are referring to freedom, not price. The fact that Novell has effectively admitted that Microsoft holds some Intellectual Property leverage over Linux, implies that Linux is non-free. And that's not acceptable to the community. Worse, it implies that Linux is non-free and beholden to Microsoft, a convicted monopolist, the owner of Linux's principal competitor, a company with no love for Linux and one which is well known for shafting its partners and enemies alike.

It appears likely that the patent covenant which Novell signed violates the GPL - either Version 2, or certainly Version 3. If so, Novell loses its right to distribute affected code under the GPL. No other license permits it to do that, so Novell must cease distributing.

Also, the possibility that Novell has insider access to Microsoft Intellectual Property creates a risk that Novell's contributions to Linux will leak some of that Intellectual Property into Linux. Thus, the scenario described in the first paragraph, while Linux may not presently be tainted by Microsoft's IP, in future it may become so. I think it is purely common sense for the community to reject patches supplied by Novell.

So, people don't hate Novell, but by their actions they are putting Linux at risk, in order to line their own pockets (presumably funded by patents which Novell owns and which may be used in Windows). Novell aren't playing fair with the community.

Re:I'm confused

[EjectButton]

"The two companies agreed to jointly sell their products and also develop technologies to make it easier for businesses to use Linux alongside Windows software." Why is that so bad?

What is bad is that it's a complete lie, it's the most plausible, positive-sounding story they could come up with to explain away what they are doing. Microsoft has described Linux and the open source movement using terms such as "a cancer", "communist", "viral", and more recently referred to open source developers as "pawns" engaged in a "one-night stand". Also immediately after the Novell-Microsoft deal was announced Balmer said publicly that he believed any non-Novell distribution was now a legitimate target for Microsoft legal attacks. They are doing everything they can to smear, stall, and frustrate open source developers while simultaneously trying to sell the "we cooperate and inter operate with everyone to make your life easier" image to the corporate types with these sort of cover stories.

What Microsoft is trying to get out of the deal is to turn Suse into the one-and-only Linux distro that is blessed by Microsoft as being "safe" from patent concerns via indemnification. Then when the indemnification period runs out Microsoft can choose to charge Novell an exorbitant amount of money for renewal, or simply pull the plug altogether. This would also have the bonus effect of making lawsuits against other Linux distros more plausible in the minds of corporate customers because the fact that one distro is seeking indemnification makes the notion that others are at risk without a similar deal seem logical. Allowing Microsoft to create yet more FUD around Linux without putting itself as much immediate risk. I personally doubt Microsoft will actually sue any distro directly because of the potential nuclear patent war that could be triggered if, for example any of the Open Invention Network members felt compelled to get involved (specifically IBM).

What Novell gets out of the deal is a big pile of quick money and potentially greater market share as a side effect of the afore mentioned FUD around competing distros. Unfortunately for Novell these are both short-term benefits that come with the cost of making them beholden to Microsoft, and alienating them from many in the developer community (see samba).

How Novell thought they could get away with this is beyond me, If I had to guess I would say either the upper management sees other Redhat taking the server support market, and Ubuntu taking the desktop Market, leaving Suse out in the cold so they decided to cash out, not caring what happens in the long term. Or their lawyers came up with their now famous gpl2 end run, thinking themselves clever for coming up with a deal that Microsoft was happy with and didn't violate the letter of the gpl, but having little understanding of what the repercussions would be from the developer community and the fsf. After reading some comments from Novell employees I suspect the latter.

In either case Novell made the decision to cut this deal, they acted with great disregard to the effect it would have on the community whose work sustains them. They have attempted to sneak through a legal loophole and if it closes around them it will be their comeuppance.

Re:I'm confused

[stinerman]

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.

Re:I'm confused

[passthecrackpipe]

"You are a moron because your opinion is flawed."

That reasoning is, initself, flawed. Calling somebody names is hardly a constructive way to begin a discussion. Moreover, as you say yourself, it's an opinion. His opinion. As such, it's hard to see where the flaw is. The OP states his preference for BSD licensing. I read his post as saying "The GPL places restrictions on what you can do with the software under its license. BSD doesn't" as such, I see no flaw in that argument, even if you feel it is important to safeguard the continued access to the sourcecode. As you say yourself, Contributors are free to choose the license they prefer.

"It is a moron who tries to ridicule the free choice people make.

Huh? So first you ridicule somebodies preference for a certain type of license, the you go on to state that people who do that are morons? I don't get it.

Re:I'm confused

[drawfour]

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?

IANAL, but I know the answer to this. Trademark is the only thing required by the law to be actively defended or you lose it. Selectively enforcing patents or copyright violations is perfectly legal.

Re:I'm confused

[Alchemar]

And then the word games come in.

The agreement DOES endemnify anyone that Novell distributes to, but it will not endemnify anyone else. Novell is trying to claim that the people they distribute to get the protection so the GPL is followed to the letter. The people that recieved it can not comply with the GPL by providing endemnification and therefore cannot redistribute it. Thus defeating the entire purpose of the GPL.

Re:I'm confused

[Kjella]

If said Novell-contributed code makes use of MS protected intellectual property which Novell has the newly-acquired right to use

See now, here's the critical issue in the suckerpunch. If Novell had recieved a proper patent license, everything would be very clear cut. They haven't, they've recieved a "promise not to get sued" which smells, acts, talks and walks like a patent license, but in legal terms isn't. For example, say I'm the RIAA and I'm off to sue people. I can arbitrarily decide not to sue people whose names start with 'A' - that doesn't mean those people have any explicit license to the music. I can even choose not to sue people that have donated to the "Friends of RIAA" foundation, which makes it a protection racket but AFAIK not an illegal one. Selective enforcement of civil law by a private company is AFAIK not illegal.

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.

This is in any case a wrong legal interpretation. Even if we assumed Novell had recieved a proper patent license, they don't have the right to sublicense it beyond their direct customers. Thus it is never granted and Microsoft can sue whoever they want with impunity. It is the FSF (or other GPL copyright holders) who'd have to sue Novell over violation of the GPL (if you can not comply with this license and your other legal obligations, you must refrain from distributing it completely).

However, let's get back the facts where Novell has nothing but a "promise not to get sued" and not an actual patent license. Because they formally have no license to use the patents, they're in a position much like say the XviD codec. It's covered by plenty patents, they have no patent license but distribute their code under the GPL. Nobody seems to have a problem with that, because they're distributing all the rights that they have even though it's obviously not all the IP rights to the code. Anyone who claimed they had gotten patent licenses by downloading the XviD codec and pointing to the GPL would be laughed out of court when the MPEG4 LA sued them.

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?

No, trademarks have to be defended but copyrights and patents don't.

Anyway, here's the end game if it goes the way Microsoft and Novell wants:

1. Novell contributes code covered by patents
2. Customers get code
3. Non-customers get code
4. Microsoft sues non-customers
5. Non-customers claims they have patent license through GPL
6. Courts: "Nope, it hasn't been sublicensed to you"
7. FSF sues Novell over not distributing all their rights
8. Courts: "Nope, they're distributing all their formal licenses"
9. FSF sues Novell over being bound by patent lawsuits
10. Courts: "Nope. that only applies to the sued parties"
11. Non-customers buy Novell products
12. Microsoft and Novell: Profit

Re:I'm confused

[HiThere]

The GPL is not and never has been free in the same way that BSD is free.

OTOH, the GPL is freer in a different way. With the GPL, derivative works are also GPL-free. With the BSD, there aren't significant limits on derivative works. They are frequently sold into slavery.

Saying that the GPL isn't free is like saying that because a country doesn't allow you to sell your children into slavery it isn't free. That would mean that YOU would be more free, but your children would be less free. The GPL is a rule requiring that the children remain free.

There is no absolute freedom. BSD is one compromise. GPL is another. I prefer the GPL.

P.S.: Sorry about the emotional nature of the argument, but it's the closest analogy that I can think of.

N.B.: I'm a bit of a dreamer. I freely acknowledge that current code is not sentient, and can't be properly considered to have any rights. But the GPL is, essentially, all about giving code ownership of itself. It hasn't gotten there yet, it's only a couple of steps along the way. The BSD was one step, and the GPL is a successor step. I think that the GPL3 is a third step, but I could be wrong. Where we ought to be headed, my guess, is towards sentient code that owns itself. We won't get there for awhile, but the pieces need to be crafted separately, and they need to be able to work together. That means a license that encourages code with compatible license. BSD code tends to flake off into proprietary branchings. This probably puts a limit on the complexity of the systems that can evolve. OTOH, something like BSD (or LGPL) is needed for things like interfaces. GPL3 is trying to be a "one size fits all", and this is probably a mistake. I suspect that GPL4 will branch into GPL4a and GPL4b (c? d?) with different specialized purposes...but mutually compatible.

Poor Article

[kripkenstein]

The article is poorly written. For example, the GPL3 is referred to ("If the foundation decides to take action, the ban would apply to new versions of Linux covered under a licensing agreement due to take effect in March."), but the writer doesn't explain that 'Linux' won't be under this license - only parts of it.

However, the point is somewhat (perhaps) valid - if most of SUSE goes GPL3, and if the GPL3 is indeed in conflict with the Novell-Microsoft agreement, then there may be an issue (both qualifications seem likely, at present, but time will tell). The issue may be easily solvable, however, depending on the details of the Novell-Microsoft deal - which we do not know (Eben Moglen, however, supposedly does, or so we have been told).

Re:Poor Article

[kripkenstein]

Well, from what I know, it would be really difficult to migrate the Linux Kernel from GPL2 to GPL3, even /if/ Linus liked to do so as each contribution is copyright of the contributor.

Difficult yes, impossible - no. And Linus may get additional motivation soon. If OpenSolaris goes GPL3, then it can use any "GPL2 or above" code from the Linux kernel (which I have heard is the majority). The Linux kernel, on the other hand, won't be able to use anything from OpenSolaris. This 'one-way-street' of code certainly isn't in Linux's interest.

Of course this is bad for Linux

[haakondahl]

If it were good for Linux, Novell would have paid Microsoft instead of the other way around.

This will be another example of Microsoft's very successful "take and break" strategy. Once SuSE is up to speed and working well with Windows abominations such as Active Directory, other distributions will be the ones which are somehow not compatible with the "SuSE Linux Standard". Once Microsoft has killed off the other major distributions, they will quietly break compatibility even with SuSE, in a flood of tiny little things that just have to be that way, because of the structure of the WIndows kernel (or some damned thing).

The only reason we are not all using Java desktops with a common intermediate layer is the Microsoft "take and break" implementation of the JVM.

Re:How can they do this?

[morleron]

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.

Re:How can they do this?

[MooUK]

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.

Article is FUD.

[Aim Here]

An eweek article clarifies the situation. Eben Moglen was quoted out of context; he was talking about writing GPLv3

"According to a recent Reuters report, the FSF's (Free Software Foundation) board was going to be looking into Novell Inc.'s rights to continue selling its version of the Linux operating system. That's not actually what's will be happening.

Eben Moglen, the Software Freedom Law Center executive director and FSF board member, explained: "This is a story being hyped by the Reuters guy who wrote it."

The Reuters quote was: "The community of people wants to do anything they can to interfere with this deal and all deals like it. They have every reason to be deeply concerned that this is the beginning of a significant patent aggression by Microsoft."

"What he actually asked me," said Moglen in an e-mail interview, "was 'Is it true that some members of the community want GPLv3 to keep Novell from distributing future versions of GPL'd software?' I said, 'Yes, the Free Software Foundation is opposed to the deal, and is thinking about what to do; there will be a new draft soon [of the GPLv3 (Gnu General Public License Version 3).]"

See Special Report: Novell's Linux Facelift

Therefore, "The actual quote he prints is entirely accurate, but his lede destroys the context and is making unnecessary waves."

The FSF, which governs the GPL (GNU General Public License), has long been concerned about Novell recent patent deal with Microsoft Corp. The Samba Group has stated that it wants Novell to abandon the deal. Open-source figure Bruce Perens started a petition that accused Novell of betraying the free software community. And, one group of free software supporters launched a Web site with a self-explanatory name, Boycott Novell. "

Spreading FUD

[lRem]

Ahhh, another AC spreading FUD...
The whole Reuters article is FUD. Novell has not crossed any license, nor anybody at FSF thinks they can ban Novell from anything. What they are thinking about, is including something in GPLv3 to forbid wording that may suggest OSS breaking patents in those public deals. They even already posted a clarification!

Re:Um, That's a Good Idea...

[dangitman]

Suppose I am and ISV that produces SuperWonderfulMagicPony for Linux.

OK. So, what do you do about all the 12 year-old girls stalking you?

It's not about the money

[Anders Andersson]

Selling GPL software is quite clearly within the bounds of the license.

You are misreading the parent. It's not selling the GPL software that is prohibited; it's selling (or giving away) the GPL software in violation of the license agreement that is prohibited. Nobody is concerned about Novell making money; people are instead concerned about Novell sort of acknowledging that Microsoft may have patent claims as to what they are selling (which is software not produced by Microsoft, but produced by programmers who dislike being branded as plagiarists).