What the GPLv3 Means for MS-Novell Agreement

eldavojohn writes to mention IT Business Edge has a dry but interesting interview with a lawyer (Antoinette Tease) on the effects the GPLv3 on the Microsoft & Novell alliance. From her answers: "Unlike prior versions of the GNU General Public License (GPL), which did not address patent rights, the current draft of the GPL version 3 has several provisions that address patent rights. Section 2 states that the license to use the open source code 'terminates if you bring suit against anyone for patent infringement of any of your essential patent claims' based on any version of the open source program." She goes on to say "the GPLv3 as currently drafted would impose an obligation on Novell to somehow 'shield' its customers from patent lawsuits brought by Microsoft, or, alternatively, to make the source code publicly available..."

Comments

Re:micro$oft

[PhysicsPhil]

What is microsoft doing? Are they trying to get into the Linux market or are they just playing patent games?

Can't they do both?

Re:micro$oft

[gstoddart]

What is microsoft doing? Are they trying to get into the Linux market or are they just playing patent games?

FUD and misdirection I should think.

The more we can bandy about the claim that only people who get indemnity from MS/Novell can be free of all of the (alleged) patent infringement which is (allegedly) peppered throughout the Linux codebase, the more people might actually believe it.

They want to be able to spread the perception that Linux is tainted by their IP, and that running it if it isn't the 'blessed' system is done at your own peril. If they 'embrace' Novell, then they can extinguish all of the other ones by freezing them out. Then, they extinguish Novell over time.

Of course, that's just what I think. I've been known to be wrong before. :-P

Cheers

Re:We've been through this twice already!

[vivaoporto]

But there is no denying, that it is a weapon (bomb), and that businesses may want to give the idea another thought -- or opt for BSD-licensed software instead.

It is not "da bomb". It is "da shield". It is not like companies were being forced to use GPL licensed software, or if they were unaware of the terms of the license. GPL v3. will *not* work like those "submarine patents", that are granted and kept low profile, and them when someone makes a profit of it are used to sue the company for a lot of money. In fact, it is exactly the opposite, it is a way to ensure that the company distributing derivative software using that GPL (and I say derivative because, if they own the copyright, they can still (re)license in whatever license they want) doesn't not hijack the code and deny to the public the benefits they were granted when accepting the terms of GPL.

A license is just that. Without GPL, they have no right to distribute derivative works. With GPL, they get the rights, but must to abide to the terms. The terms are there to ensure that they will pass along the rights they got, and that they will not pull a card from the sleeve and deny people the very freedom that the GPL license is born to grant.

In short: you have the right to not distribute GPL'd software. If you do, you must abide to the terms and preserve the intended freedoms. Play by the rules or go away, it is simple as that.

Correct for what goal?

[Chmcginn]

The correct language in GPL v3 would be something like, "This agreement is void in its entirety if the covered software is found to implement a current, valid patent whose owner has not offered the patent for use for free in any manner comperable to how it is used in the covered software."

If their goal was to avoid accidentally using a software patent, that would be correct.

But if their goal is to instead set up a state of (some degree of) mutually assured lawsuits, then what they are doing is the correct choice. If Microsoft (or any other software vendor, for that matter) takes a single piece of GPL v3 code that wasn't previously released as GPL v2 code, any software patent lawsuit will trigger a response of copyright infrigement lawsuits.

it's a way to divide the community

[H4x0r Jim Duggan]

> FUD and misdirection I should think.

Surely, but I think there's more to it.

One goal is to divide the free software community. With the Novell deal, Novell no longer has an interest in helping the community to fight MS's patents. Worse, Novell now benefits from Microsoft's patents getting more and more dangerous. To fight the patent problem, we can't afford to lose any friends. ...not the Novell was much of a friend in the anti-swpat campaign, but if MS is allowed to buy on free software distributor, they can buy others.

And another motivation a little more base: extortion. Microsoft has been in stagnation for a long time and it now scrambling to slow everyone down to prevent their demise. It would be a clever long term strategy to find a way to profit from the free software operating system that will probably replace theirs.

License can't solve patent problems

[starseeker]

As much as I like the idea of protective clauses in the GPL3 license, I have a feeling that the people inclined to make trouble for free software with patent cases are unlikely to be in a position where the GPL would stop them. They will be competing with GPL software, not using it - being forbidden to use it won't stop them at all.

The conflict is fundamental - patents stop people from doing things with software, and open source programmers want to do those things. The law is a tool towards those ends, which both sides will employ. The stark fact seems to be that the law supports patents, and so does the political establishment and commercial support which funds said establishment.

There are two things stopping a WW3 style patent nuke war, as far as I can tell - one is the MAD assurances provided by the larger open source companies and/or supporters, and the other is the cost/benefit analysis of launching an attack on an open source author/project is not so good. Attacking the project means lots of legal fees if the case is fought, very bad press among the tech community, and the distinct chance the software you are attacking will be reborn, rewritten, or even replaced by something better as thousands of irate geeks seek a technical solution to the legal action. If by some chance the patent being used has covered all possible useful methods of doing something, the community simply waits until it expires and THEN proceeds. Yes 20 years is a long time, but it is not forever. The GIF patents eventually expired, and I would be very surprised if the cost/benefit analysis of those patents was a net plus. Apple has not gone after the freetype project, for example (although they did contact them).

However, these mechanisms cannot be entirely relied upon. JMRI is certainly an example: http://jmri.sourceforge.net/k/index.html So long as patents can be filed on software, there is the potential for a slaugher among free projects. I can't think of any license change JMRI might have made that would avoid their current situation. Patents will always pose a serious threat to free sofware, as the representative of commerical control interests. Indeed, I would expect that if patents are abolished some other method would be found, but at least it would be more difficult.

v2 is not an option for Novell

[H4x0r Jim Duggan]

Using GPLv2 is not an option for Novell because they don't own the software they package and redistribute.

When developers switch future versions of their software to GPLv3, Novell will not be able to incorporate the changes in those new versions.

So if Novell wants to avoid GPLv3, they will have to forever stay with Glibc 2.5, GCC 4.1, coreutils 6.7, and old versions of GIMP, emacs, bash, gdb, etc. etc.

Wrong, wrong, wrong

[massysett]

Did the person interviewed for this article actually read the draft?

"This License explicitly affirms your unlimited permission to run the unmodified Program." (emphasis added) "This License permits you to make and run privately modified versions of the Program, or have others make and run them on your behalf." It is only this permission to make and run privately modified versions that terminates if the licensor sues for infringement. This is a far cry from what the article suggests, which is that the license "to use the open source code" terminates when the licensor brings a patent claim.

I hope the article is a distortion of what this attorney said. If it isn't, then anybody who has hired this lawyer for anything software-related should get another lawyer, pronto.

You're correct, 25-50% of each distro'll be GPLv3

[H4x0r Jim Duggan]

All of the GNU project will move to GPLv3. That's glibc, gcc, gdb, binutils, coreutils, bash, grub, grep, cpio, readline, make, gettext, GIMP, aspell, parted, parts of GNOME, etc. etc. etc.

Also, SAMBA said they'll be moving to it, and MySQL said they expect to move to it. Sun might, or might not, use it too.

I don't understand

[Degrees]

I have to admit: I don't understand the idea

Worse, Novell now benefits from Microsoft's patents getting more and more dangerous.

I'm a Novell customer, and Novell makes a decent amount of money off us. If Novell gave Microsoft a reason to sue us, we'd drop Novell and become an all-Microsoft shop.

I don't understand why people think Novell wants to jeopardizes it's business.

There was speculation that the deal was designed to scare Red Hat customers over to Novell. But I don't see that as reasonable either. If Microsoft sues Red Hat customers, Red Hat, the FSF, and indeed Novell will sue Microsoft to show us the code.

I just don't get it. We had one Linux server going into 2006, and because of our Novell license agreement, at the end of 2006 we had twenty-two. (We're up to 25 now). Seven or so of those were migrations away from NetWare - which is the sensible path Novell is suggesting to it's customers. Why does Novell want to jeopardize that?

What does make sense to me is that Novell kept trying to sell Linux into big companies, and the Microsoft FUD was working. The only real way for Novell to counter that was the Novell-MS deal.

My CIO thinks better of Linux, now that Microsoft has acknowledged it. If Microsoft was trying to sow FUD in our shop, that certainly back-fired.

Although, if the FSF is successful in cutting Novell's Achilles Heel, then I suppose the Microsoft gamble will have been worth it (to Microsoft at least).

Re:GPL v3 will certainly further divide the commun

[Rycross]

I never understood people complaining about GPL3 being a political license. Of course it is. GPL has always been political. The very reason for it existing is political. It was made to encourage the spread of Stallman's views concerning software, and to enforce the FSF's definition of Free software. And there's nothing wrong with that. You aren't being forced to use it.

Can Novell ditch GNU? No.

[H4x0r Jim Duggan]

No, Novell can't replace the GNU bits with BSD bits - even the BSDs don't do that!

Every BSD is GCC built and ships GCC to their developers.

Also, there's no BSD replacement for GIMP, and replacing Glibc and replacing it with a BSD libc would be very hard. An operating system's libc has to marshal between the kernel and the userspace - Glibc has been doing this for 15 years for Linux and the GNU userspace. A new libc would be a world of problems.

Anyway, other packages such as SAMBA would still be out of bounds (they've said they're moving to GPLv3 too).

Oh, and as for Stallman being surrounded by sycophants - his main job is travelling and giving speeches and answering emails - he hears criticism and questioning every day.

How Novell benefits from Microsoft winning

[H4x0r Jim Duggan]

Novell benefits from Microsoft's patents becoming more dangerous because Novell is the only GNU+Linux distro that is protected from those patents, so if people are afraid of Microsoft's patents, they might run to Novell to benefit from the protection.

So when Microsoft's patents are more dangerous, Novells advantage is more prominent.

So we've lost one ally (or should-be ally) in the long-term fight against software patents. What if we also lost Red Hat and Sun and the other companies that love our software because it lines their pockets? What would our chances look like then in the campaign against software patents? The campaign against DRM? The campaign against proprietary formats? etc. etc.

What Novell did was not bad for Novell's business (if we ignore what it did to their status in the community, and that GPLv3 is going to create big problems for Novell now). For a dog-eat-dog mindset, it was a smart move. But the relationship between the free software community and the companies that profit from free software is not meant to be dog-eat-dog - it's supposed to be solidarity. That's how we win, together.

So GPLv3 will say: "No giving in - no selling out". If some code violates a patent, we try to get the patent thrown out, or we ditch that piece of code. GPLv2 said that too, but Novell found a loophole. That will be closed.