Since Eben Moglen seems to think that changes are needed to GPLv3 in order to "prevent this from happening in the future"... the GPLv2 must not be adequate. Either you are wrong or he is. Who is it?
I flew to NY to discuss this whole issue with Eben last week. First, the Novell-Microsoft is clearly outside of the spirit of the GPL and thus demonstrates bad faith on Novell's part. Is it within the letter? Novell and Microsoft say so, and obviously took a lot of time to engineer it to just slip within a hair of the letter. I think that Novell and Microsoft would like to drag us into an expensive and ultimately fruitless fight. Rather than take it to court, and spend a lot of money on something that will be ambiguous for years, we will make it very, very clear that this is NOT within either the letter or the spirit of GPL3 and LGPL3. And then a lot of stuff that Novell needs will go under those licenses, and Novell will be stuck with the entire version of maintaining obsolete forks without the help of the community.
Nat, rather than being at the forefront of the deal, is the person assigned to spin this to the Free Software community. I'm sure his heart is in the right place. But he has a contract, both for his individual employment and one related to the sale of Ximian. I don't believe he has much choice what to do.
There are folks in this same deal who aren't as tightly bound, like Jeremy, who is Samba team leader and also a Novell employee. Jeremy disapproved of the deal in public.
That means the GPL text. The point is that the entire GPL, and section 7 in particular, binds the community of people who redistribute the software to stand together against a patent aggressor rather than sell out individually and thus weaken the rest of the community against that aggressor. Novell and Microsoft knew clearly what the spirit of the document was, and crafted a legal fiction of covenants to each other's users that has the same effect as the licenses in order to (maybe) sneak within a hair of the letter. In other words, they engineered a loophole to get around Novell's earlier agreement with the many developers of GPL software in their distribution.
In short, we feel that Novell has acted in bad faith.
I think the key to winning this in court would be to discover in a court proceeding the un-published agreement between Novell and Microsoft and to make a case to the judge that the agreement between the two parties and the actions that they are to take under those agreements have the same effect as a license. It seems pretty clear to me that the circumlocutions they have gone through - covenants with each other's customers rather than each other - have no intent other than to provide the effect of a license while creating a legal fiction that no license exists.
have gone out of their way to paint this deal in as negative a light as possible, without actually knowing what Novell's intent is.
I have read all of the legal documents that have been disclosed.
Regarding their intent, we have the individual contributor agreement, which I think it's fair to call a fraud. It's a promise revocable at any time, which is sufficient reason to label it fraud, and on top of that only applies to people who don't distribute their software. IMO this is sufficient evidence that their intent is to do us any ill that is required for cash, and to leverage Novell sales on patent FUD.
And of course, there's still the issue that Novell is perfectly free to release open source code under a license other than the GPL
If they have it. I'd just love to see them have to retrofit the BSD C library to their Linux distribution in time for the next release, and distribute a proprietary Intel compiler.
And by the way, what are Novell customers supposed to do in 5 years when this deal expires? Do they think that Microsoft will be nice to Novell then?
Nobody with any sense in the free software world has touched Mono, because they would always realized the potential for patent aggression from MS. The audience that touches it might be coming from the Windows platform.
GNOME would be fine without Novell. But IMO the GNOME team should discuss the issues with some good attorneys and think about whether or not it should be accepting Novell code from hence. If GNOME has to litigate a patent later on, it doesn't want to have Novell testifying about the patents it knew about as a member of the development team and creating treble damages for knowing infringement where we would otherwise have had simple damages. And no doubt there are other legal risks.
The code is already out there, the developers can't take it back.
Actually, some of the developers may indeed take it back through the courts. That is yet to be decided. But even if they don't take it back, a lot of those developers will go to GPL3 just because of this. Including important stuff like the C library and GCC (which FSF owns). And it's already been made clear that GPL3 will close this loophole.
There is no non-trivial software program that does not infringe a granted patent. I am not kidding. If you enforced them all, the whole software industry would grind to a halt.
The difference between the Red Hat patent indemnity and the Novell-Microsoft covenant not to sue is that the insurance company is not the patent owner and has no right to license the patent to anyone, and no capacity to grant a covenant not to sue. Microsoft is the patent holder and the agreement between Microsoft and Novell is tantamount to a license directly from the content holder.
The purpose of section 7 of the GPL (and the rest of the GPL, which reinforces section 7) is that we must all hang together or we will surely hang separately. It's written to prohibit any one party from making a patent deal that the rest of the community will not benefit from. Novell's deal surely, clearly, inarguably violates the spirit of that - and that's a very clear message to the people who gave Novell that license. I contend that it also violates the letter.
The particular patent deal that they made is against section 7 of the GPL and also other parts of the license.
Novell is attempting to create a loophole in the license with a legal fiction. By paying Microsoft to make a covenant to Novell's users directly, instead of to Novell, they are attempting to get us, and whatever judges eventually rule on this, to believe that no patents are being licensed even though the effect is the same as if they were being licensed.
There is also the matter of the spirit of the license. By violating that, they are making a clear "screw you" gesture to everyone whose code they are running. There are now a lot of angry people who will now go out of their way to get business to go elsewhere than Novell. Have you noticed that SCO's business went completely down the tubes? Novell's going to have a hard time avoding that.
Actually, the Samba developers did say you couldn't do this in their copyright license. Novell is deliberately attempting to make a loophole in that license. It's sort of a "screw you" gesture from Novell to Samba to abuse their license that way.
SPI doesn't own too many copyrights, Debian could get along fine without them. And if MS chose to sue SPI, I can think of some folks who would put up money for SPI's defense, and it doesn't look at all good for MS to sue a charitable non-profit.
Furthermore, a lot of the GNU/Linux libraries important to a GUI shop such as Microsoft, such at GTK, are LGPL on Linux - not GPL.
The patent language is the same in both licenses. So, does MS accept the license on those libraries and distribute applications for them? The consequences for them could be interesting.
I'm not going to worry that Novell could go on with someone else's C library. It would mess them up enough in the short term that they wouldn't go on.
It's an accurate, if colorful, portrayal of Linus' attitude about this issue and my assessment of his qualification to handle it. It would have been character assasination if I wrote that he picked his nose or something unrelated to the question at hand.
1)Novell owns IP that has nothing to do with Linux.
I can't yet see why you believe this would be germane. Perhaps you could elaborate.
2)Even if some code is in Linux, and available under GPL, if Linux are the copyright holders of the code, then they can also release it under different lisences too.
It sounds almost as if you think Linux is a company that owns the copyright. The number of copyright holders is a rather large number. I think they are just barely able to make changes in the letter but not the spirit of the license as a group. They are not able to license the whole under something that substantially departs from the GPL.
Um, a covenant not to sue is a two party contract.
Yes, but that's not the only contract in this picture. The most important one is a contract between Novell and Microsoft in which they agree to make these covenants to each other's customers. The full details of that contract are not public knowledge but are certainly discoverable.
Certainly there is clear documented intent to structure the deal as covenants rather than a license with the sole intent of circumventing the GPL. Now, you can show that to a judge and make a pretty good case that the companies are licensing each other and going through circumlocutions with covenants with the sole intent of welshing out of a license's obligations. Then, you ask the judge to consider the result for what it really is.
Rather than the FAQ, I suggest you look at the form 8K on Edgar, and the covenants that have been published so far. FAQs are Public Relations writing and can shade the truth.
It's clear that the two companies are paying each other for similar covenants that will extend to their customers. I guess they buy the theory that if you do something indirectly, you aren't as guilty as if you do it directly.
So, this is like a shakedown artist who does not propose to damage your business at all, and only threatens to beat up your customers in your parking lot - if you don't pay.
Would a judge be confused by this? I don't see how.
So far, Linus is being Alfred E. Newman, the character in Mad magazine whose motto was "What, me worry?" He said something about not assuming that everyone has to be enemies. I think he does fine at programming. Strategy outside of programming isn't his forte.
I read the form 8K on Edgar. Don't count on press releases.
The companies are paying each other for covenants not to sue. It's there in black and white. I don't see that this is any different from a license, and I don't see that a judge would be swayed that a covenant in this context is any different from a license.
It still sounds like a GPL violation to me. Now, we have to watch what FSF does. They own the C library that literally every program on Novell Linux uses. They have a reasonably strong case to enjoin Novell from distributing it, which would kill SuSE entirely. They have Red Hat to pay for the lawsuit.
Regarding the Aryan nation thing... look into the ancestry of the so-called Aryans. Bin Laden probably would have a better claim to the title Aryan than those blue-eyed Europeans.
That said, a pox on all of them, and on George Bush too.
It would be trivial for Red Hat in that case to take something from Novell-distributed software and have the protection be applicable to them. And Novell would not be in a position to force anyone to accept patches. There's still the option to modify the GPL software any way you desire, including by making it look like another version.
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I flew to NY to discuss this whole issue with Eben last week. First, the Novell-Microsoft is clearly outside of the spirit of the GPL and thus demonstrates bad faith on Novell's part. Is it within the letter? Novell and Microsoft say so, and obviously took a lot of time to engineer it to just slip within a hair of the letter. I think that Novell and Microsoft would like to drag us into an expensive and ultimately fruitless fight. Rather than take it to court, and spend a lot of money on something that will be ambiguous for years, we will make it very, very clear that this is NOT within either the letter or the spirit of GPL3 and LGPL3. And then a lot of stuff that Novell needs will go under those licenses, and Novell will be stuck with the entire version of maintaining obsolete forks without the help of the community.
Bruce
There are folks in this same deal who aren't as tightly bound, like Jeremy, who is Samba team leader and also a Novell employee. Jeremy disapproved of the deal in public.
In short, we feel that Novell has acted in bad faith.
Bruce
I have read all of the legal documents that have been disclosed.
Regarding their intent, we have the individual contributor agreement, which I think it's fair to call a fraud. It's a promise revocable at any time, which is sufficient reason to label it fraud, and on top of that only applies to people who don't distribute their software. IMO this is sufficient evidence that their intent is to do us any ill that is required for cash, and to leverage Novell sales on patent FUD.
And of course, there's still the issue that Novell is perfectly free to release open source code under a license other than the GPL
If they have it. I'd just love to see them have to retrofit the BSD C library to their Linux distribution in time for the next release, and distribute a proprietary Intel compiler.
And by the way, what are Novell customers supposed to do in 5 years when this deal expires? Do they think that Microsoft will be nice to Novell then?
Bruce
GNOME would be fine without Novell. But IMO the GNOME team should discuss the issues with some good attorneys and think about whether or not it should be accepting Novell code from hence. If GNOME has to litigate a patent later on, it doesn't want to have Novell testifying about the patents it knew about as a member of the development team and creating treble damages for knowing infringement where we would otherwise have had simple damages. And no doubt there are other legal risks.
Bruce
Actually, some of the developers may indeed take it back through the courts. That is yet to be decided. But even if they don't take it back, a lot of those developers will go to GPL3 just because of this. Including important stuff like the C library and GCC (which FSF owns). And it's already been made clear that GPL3 will close this loophole.
Bruce
Bruce
Thanks
Bruce
Thanks
Bruce
Novell is attempting to create a loophole in the license with a legal fiction. By paying Microsoft to make a covenant to Novell's users directly, instead of to Novell, they are attempting to get us, and whatever judges eventually rule on this, to believe that no patents are being licensed even though the effect is the same as if they were being licensed.
There is also the matter of the spirit of the license. By violating that, they are making a clear "screw you" gesture to everyone whose code they are running. There are now a lot of angry people who will now go out of their way to get business to go elsewhere than Novell. Have you noticed that SCO's business went completely down the tubes? Novell's going to have a hard time avoding that.
Bruce
Bruce
Bruce
Bruce
The patent language is the same in both licenses. So, does MS accept the license on those libraries and distribute applications for them? The consequences for them could be interesting.
I'm not going to worry that Novell could go on with someone else's C library. It would mess them up enough in the short term that they wouldn't go on.
Bruce
Well, I don't see anywhere in the law where "tons of layers" and "covering tracks" excuse one from welshing out of a license.
Bruce
I can't yet see why you believe this would be germane. Perhaps you could elaborate.
2)Even if some code is in Linux, and available under GPL, if Linux are the copyright holders of the code, then they can also release it under different lisences too.
It sounds almost as if you think Linux is a company that owns the copyright. The number of copyright holders is a rather large number. I think they are just barely able to make changes in the letter but not the spirit of the license as a group. They are not able to license the whole under something that substantially departs from the GPL.
Bruce
Yes, but that's not the only contract in this picture. The most important one is a contract between Novell and Microsoft in which they agree to make these covenants to each other's customers. The full details of that contract are not public knowledge but are certainly discoverable.
Certainly there is clear documented intent to structure the deal as covenants rather than a license with the sole intent of circumventing the GPL. Now, you can show that to a judge and make a pretty good case that the companies are licensing each other and going through circumlocutions with covenants with the sole intent of welshing out of a license's obligations. Then, you ask the judge to consider the result for what it really is.
Bruce
It's clear that the two companies are paying each other for similar covenants that will extend to their customers. I guess they buy the theory that if you do something indirectly, you aren't as guilty as if you do it directly.
So, this is like a shakedown artist who does not propose to damage your business at all, and only threatens to beat up your customers in your parking lot - if you don't pay.
Would a judge be confused by this? I don't see how.
Bruce
Bruce
Debian. It's not a company.
The companies are paying each other for covenants not to sue. It's there in black and white. I don't see that this is any different from a license, and I don't see that a judge would be swayed that a covenant in this context is any different from a license.
It still sounds like a GPL violation to me. Now, we have to watch what FSF does. They own the C library that literally every program on Novell Linux uses. They have a reasonably strong case to enjoin Novell from distributing it, which would kill SuSE entirely. They have Red Hat to pay for the lawsuit.
Bruce
That said, a pox on all of them, and on George Bush too.
Bruce
Bruce