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Eben Moglen To Scrutinize Novell-Microsoft Deal

CowboyNeal posted more than 7 years ago | from the hard-looks dept.

102

An anonymous reader writes "Novell is providing Eben Moglen's Software Freedom Law Center with confidential access to the legal terms of the Novell-Microsoft partnership, allowing to organization to verify if the deal is compatible with the GPL2 and GPL3 licenses. Moglen in the past has alleged that the patent license between the two companies could be in violation with section 7 of the GPL. Novell on Tuesday published a document on its website, explaining that they circumvented the GPL provisions by providing a patent license to the end user rather than between the two companies."

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So if the deal violates GPL... (5, Interesting)

parvenu74 (310712) | more than 7 years ago | (#16790181)

What are the odds that Microsoft has language in the contract of the deal which allows them to break/undo/shift blame if Novell can't stay clear of GPL legal issues? Anyone who thinks Microsoft is really interested in helping out Linux is forgetting that MS is a company that has been found guilty -- as a point of law -- of using their monopoly position to hurt other companies. Do you think Balmer had a change of heart or something, or that The Microsoft Memo [wired.com] was real and not make believe? Microsoft cannot be trusted -- end of story.

So if it's in violation, THEN WHAT? (3, Interesting)

toby (759) | more than 7 years ago | (#16790185)

What exactly is the Professor going to do if he believes it violates GPL v2?

Re:So if it's in violation, THEN WHAT? (2, Informative)

Mateo_LeFou (859634) | more than 7 years ago | (#16794510)

Well, it seems pretty obvious, but Moglen tells Novell to stop distributing his clients' code without a license, and (I believe the usual routine) opens up negotiations as to how they can resume distribution.

Awesome (5, Insightful)

joe_cot (1011355) | more than 7 years ago | (#16790203)

Novell on Tuesday published a document on its website, explaining that they circumvented the GPL provisions by providing a patent license to the end user rather than between the two companies.

So they're claiming that since the patent license is for their end users, and not for the company, it's alright that they're distributing patented software under the GPL, because their users can still use it .... except that Redhat, Ubuntu, Debian, and ..... oh yeah, almost every distribution ever uses large amounts of Novell's code, and aren't covered by the license at all. A great day for the GPL. Let the patent nuclear war commence.

Questions pertinent to the FAQ (1)

Mateo_LeFou (859634) | more than 7 years ago | (#16794574)

... discussed here
http://www.groklaw.net/article.php?story=200611091 11321376 [groklaw.net]

The legal wtf, in my opinion (but IANAL) is how exactly Novell can presume to cut a deal between its users and Microsoft. Here's why they think GPLs7 doesn't apply:

"Our agreement with Microsoft is focused on our customers, and does not include a patent license or covenant not to sue from Microsoft to Novell (or, for that matter, from Novell to Microsoft). Novell's customers receive a covenant not to sue directly from Microsoft"

Am I (and PJ) reading that wrong? "Our agreement with Microsoft" somehow causes customers to "receive a covenant not to sue directly from Microsoft". This seems impossible.

How is it possible for my agreement with Microsoft (were I to have one) to cause other non-involved people to receive things directly from microsoft?

Re:Questions pertinent to the FAQ (1)

Breakfast Pants (323698) | more than 7 years ago | (#16810540)

You're skeptical, but it is possible in law. If I hire you, make you sign a non-compete, inform a competitor about this non-compete, and then they hire you away from me, I can sue *them* even though they were never a party to the contract. Bogus world we live in.

They forgot one: (4, Funny)

QuantumG (50515) | more than 7 years ago | (#16790211)

Q9. Did you sell us all up the river for 80 pieces of gold?

Novel has always been willing to sell the open source community and its works to anyone who is willing to pay us. We do not see Microsoft's evil undead army of lawyers any differently than we do our own customers. If you all end up in the galley of a ship pulling oars we wouldn't be suprised, but hey, you're the dickheads who keep assigning copyright to our corporate entity and that's what makes it all possible. Fuck you very much.

Battle lines (4, Interesting)

AirLace (86148) | more than 7 years ago | (#16790233)

My largest gripe with the agreement (as a contributor to Novell's open source projects) is that it will encourage the adoption of the overbearing GPL3 license. As the battle lines are drawn, open source and free software developers are going to polarise, and I suspect that this deal will only encourage the mass of developers to side with the FSF to get the protection that the new license affords, even if it restricts many fair uses that we've come to accept with GPL2.

Couldn't we have taken a little more time to work on these new licenses before forcing the issue to come out into the open? If Moglen decides that this is a violation of the GPL, the rules of the game will have changed for good, and it will probably only be a matter of time from there for GPL3 to gain credibility and critical mass for better or for worse.

Re:Battle lines (1)

Elektroschock (659467) | more than 7 years ago | (#16792868)

In fact I suppose that is the reason behind Moglen's campaign. He is not really concerned about the Novell-Ms deal.

Re:Battle lines (1)

Omnifarious (11933) | more than 7 years ago | (#16794742)

What, exactly, does the GPLv3 keep people from doing that they could do before? If your only answer is the thing requiring that if a piece of hardware comes with GPL software that I must be given the needed tools to change that software, then I submit that it is the hardware manufacturer trying to restrict my freedom and that the GPL is protecting it. Do you have a better or different answer?

Re:Battle lines (1)

Rogerborg (306625) | more than 7 years ago | (#16794914)

Hardware manufacturers are people too. Once you leave your parents' basement, you may end up working for one.

Re:Battle lines (1)

Omnifarious (11933) | more than 7 years ago | (#16795168)

Umm, and so because they are people, they should be allowed to make hardware that they never really sell, but lie about selling. Because, you know, if they sold it to me, I'd get to do whatever it is I wanted with it. But because of the DMCA, they get to sue any mod-chip manufacturers, and realistically I only get to do what they want me to with it. Hardly even a lease, much less a sale.

Re:Battle lines (1)

Rogerborg (306625) | more than 7 years ago | (#16813172)

No, I mean they are people, and people have rights. The GPL is all about giving people rights, right?

Go Eben (1)

bl8n8r (649187) | more than 7 years ago | (#16790235)

Kick some heinous ass.

Microsoft gives permission to distribute under GPL (3, Interesting)

mrcaseyj (902945) | more than 7 years ago | (#16790243)

It seems to me that since Microsoft has given permission to its partner to distribute under the terms of the GPL (the ONLY way Novell can distribute) they can't put the cat back in the bag.

Ahhhhh (2, Interesting)

Anonymous Coward | more than 7 years ago | (#16790257)

Novell's end user customers receive a covenant not to sue directly from Microsoft for their use of Novell products and services, but these activities are outside the scope of the GPL.
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.

So Microsoft aren't distributing but are offering a patent license* to Novell customers, preventing redistribution under the GPL? I'm not convinced a court is going to see it that way given the explicit wording of the preamble!

* "patent license" === "covenant not to sue".

Re:Ahhhhh (1)

penguinrenegade (651460) | more than 7 years ago | (#16796106)

Unfortunately, the preamble of the GPL is not legally binding. Only the "Terms and Conditions" are binding. See "End of terms and conditions." The "How to apply these terms and conditions" is not legally binding either. Despite additional supporting documents that show intent, they don't hold up in court. The same thing happened with the Federalist Papers in support of the Constitution. Many times the courts have ignored the framers' intent despite it being in black and white. It's unfortunate, BUT hopefully the FSF, Eben Moglen and other great minds will figure out how to make this go away with rapidity. RP

Here We Go Again (1)

mpapet (761907) | more than 7 years ago | (#16790259)

1. Another Microsoft deal where the other party is eaten alive. Embrace, Extend, Extinguish.
2. The term "Free" (as in Freedom) software is further confused to the average PHB.
3. Microsoft sucks up the revenue desperately needed to grow Linux.
4. Totally free software is further equated with the price you pay. Nothing.

In europe? Shoot charlie mcgreevy, quick. (5, Insightful)

Anonymous Coward | more than 7 years ago | (#16790261)

In europe? Shoot Charlie McGreevy, quick. That traitorous bastard is microsoft's man to his rotten core, and will stop at nothing to bring software patents to europe.
Bomb Microsoft Ireland. Bomb the EPO.

Microsoft has been saying for years that developers can't earn money writing free software - well, I can, have done for years. But with their patent machinations, they're trying to make what they've said a reality, trying to make free software the domain of hobbyists only.

I think we can now all agree (4, Insightful)

AdamKG (1004604) | more than 7 years ago | (#16790269)

that a GPLv3 is sorely needed?

Re:I think we can now all agree (2, Insightful)

Ingolfke (515826) | more than 7 years ago | (#16792594)

No, no we can't... you silly troll. Furthermore, not only is the GPLv3 not "needed" it ability to be applied to existing codebases with multiple rights holders is in serious question.

Re:I think we can now all agree (0)

Anonymous Coward | more than 7 years ago | (#16797038)

it ability to be applied to existing codebases with multiple rights holders is in serious question.

Sorry to burst your bubble, but...

GPLv2 says:
"This program is free software; you can redistribute it and/or
modify it under the terms of the GNU General Public License
as published by the Free Software Foundation; either version 2
of the License, or (at your option) any later version."

One would expect someone actually read the license, if he states it doesn't need to be improved/updated...

Eben Moglen is a funny name (-1, Troll)

BadAnalogyGuy (945258) | more than 7 years ago | (#16790275)

I assume it's Dutch or something. It sounds like it's straight out of Tolkein. My mental image of this guy is of a short, hairy, barefoot, hippy hobbit.

That's also my mental image of RMS.

does this mean customers violate instead? (0)

Anonymous Coward | more than 7 years ago | (#16790289)

if the patent license and royalty payments are between microsoft and the customer, then are the customers in violation of section 7 of the gpl? This could be bad news for SuSE customers...

OT: 9 hours and counting (1)

Marxist Hacker 42 (638312) | more than 7 years ago | (#16790297)

So when will that ALTER statement finish?

Boycott in 3...2....1 (3, Insightful)

RLiegh (247921) | more than 7 years ago | (#16790299)

In all seriousness, is anyone here still willing to endorse Microsoft's attacks on Linux and their abuse of the patent system, or are you planning on switching away from the use of SUSE Linux in your work enviroment?

Re:Boycott in 3...2....1 (0)

Anonymous Coward | more than 7 years ago | (#16795124)

I didn't get around to "upgrading" to SuSE 10.1, because of the sloppy way they
dealt with YaST and other related issues when 10.1 came out. (Evidently, regression
testing was either not envisioned or not given any meaningful priority at SuSE).

Sooooo, I'm still running SuSE 10.0 at the moment, until I can find a few hours of
free time to install Fedora Core 6 that I downloaded and burned the other day, onto
another drive that I have. I switched from Red Hat to SuSE a few years ago when I
got tired of RH's snotty attitude (at the time) towards beta testers, etc. I have
tried Debian on an old laptop that I no longer use, and have some qualms around the
way Etch is coming together, what with the childishness over Firefox, and the arcane
ways that kernels are put together. I used Mandrake briefly (when it was Mandrake)
and found I was spending more time trying to figure out what RPMs would actually update
my system and work, than using the system for what I intended.

I've been a loyal user of SuSE since around 6.0 or so, and by that I mean I *purchased*
those distros from them, or from a major outlet such as CompUSA or Amazon. My total
purchases amount to several orders of magnitude less than what Novell is getting
from Microsoft, so obviously they won't miss me as a customer. Oh, well, time to see
what Fedora's all about...

GPL Section 7 (5, Insightful)

nuggz (69912) | more than 7 years ago | (#16790301)

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 as the distributor must provide the license to the recipients. Novell has no license to distribute the patents from Microsoft. Obviously this means they can not grant such a license to those they distribute the code to.
I don't see how they could possibly claim to comply.

Reading between the lines. (1, Interesting)

Anonymous Coward | more than 7 years ago | (#16790309)

I'm glad Novell is making this move. It's certainly been a publicity disaster for them among key segments of the Linux community.

But there are some key things which won't be in the contracts. You can see them from what Microsoft ISN'T saying. To wit:

- They aren't saying that they want to be a good citizen in the Open Source community.
- They aren't saying that they are won't abuse the GPL in order to lock people into a Microsoft solution.
- They aren't saying how Novell is going to end up any different than any other company which has partnered with Microsoft in the past (has there ever been any such company of note which hasn't ended up screwed?).

Microsoft has displayed a long history of not caring about customers or partners, only Microsoft. Certainly not the Linux community, or even the laws imposed by the general community. Nor have they made even a token effort at making statements indicating anything to the contrary. Indeed, their current statements to date are more of the same old FUD.

Or, in otherwords, they are up to their same old tricks. The only question is how they are going to abuse the situation in a way which is best for them.

So read those contracts carefully, Eben. And also keep in mind what isn't being said, and how it will be abused.

Any Chance.... (0)

Anonymous Coward | more than 7 years ago | (#16790317)

Any chance on getting this in a Vorbcast format?

customer problems? (4, Insightful)

burnin1965 (535071) | more than 7 years ago | (#16790331)

I find the answer to question number 2 intriguing:


Q2. Why did Novell make this deal with Microsoft? Was Microsoft threatening a lawsuit?

Novell started discussions with Microsoft in order to solve problems for our customers by improving Linux/Windows interoperability in areas like virtualization, heterogeneous server management, and office document compatibility. By securing a commitment from Microsoft to support the use of Linux and open source software, we have allayed any potential concerns for our customers and removed a barrier to enterprise-wide Linux adoption.

There was no threatened litigation.



First I'd like to ask of the SuSE customers who frequent slashdot, were you having problems with "Linux/Windows interoperability in areas like virtualization, heterogeneous server management, and office document compatibility" which you brought to Novell's attention?

And second, exactly what were your potential concerns about any "barrier to enterprise-wide Linux adoption" that were allayed by Novell's agreement with Microsoft?

It seems that we have seen article after article and report after report that shows significant progess by the open source community in providing everything that Novell claims this agreement addresses so I'm a bit skeptical of this answer and would like to know what SuSE customers think.

Re:Reading between the lines. (1)

RLiegh (247921) | more than 7 years ago | (#16790337)

>(has there ever been any such company of note which hasn't ended up screwed?).
Symantec? Also Apple did pretty well with the bailout from MS (which many people compare this to)

But, as you said; instead of stating that they want to be 'good citizens' of the open source community they've explicity said that because of the GPL they won't issue a statement saying they won't sue other distributions; and Ballmer himself has made very threatening statements regarding the choice of distributions other than Suse.

Re: Boycott in 3...2....1 (1)

BlenderFX (954511) | more than 7 years ago | (#16790361)

I have already done that - since 10.0 came out :)

GPL Section 7 Rebuttle (1, Interesting)

Anonymous Coward | more than 7 years ago | (#16790365)

Let us examine the various cases:

Assume first that Linux violates no patents held by Microsoft. Then there are no restrictions on recipients of Novell's distribution. Thus, no violation of Section 7, regardless of any deals for additional protections.

Assume the opposite. Linux violates patents held by Microsoft. By default, no distributions of Linux, Novell or not, are allowed. Thus, no distribution status changes, regardless of any deals for additional protection.

So its a non-issue.

You didn't look at Section 7 did you (0)

Anonymous Coward | more than 7 years ago | (#16793154)

If you assume Linux does violate patents held by Microsoft then by default you can still distribute the code until such time as MS tells you you cannot.

However, if Novell knows (whether they have a license from MS or not) section7 of the GPL says that *Novell* cannot distribute. That still doesn't mean you cannot.

If Novell then show *you* that there are patents in Linux, *you* are unable to distribute. I still can.

Copyright and patent are orthogonal. Both say that you need license to breach their privilege but that it is up to the holder of the privilege to tell you they hold that right. Until then, you are clear.

Gotta love lawyer double talk. (4, Interesting)

QuantumG (50515) | more than 7 years ago | (#16790369)

Ok, there's two possibilities here, the GPL licensed software that Novell distributes:

1. doesn't violate any Microsoft patents; or
2. does violate some Microsoft patents.

If it's the first then, great, no problems, this whole deal between Microsoft and Novell (as far as the patents go) is just FUD. But, if it is the second, oh boy, things get bad then. First of all, if Microsoft decides to enforce their patents, no-one has the right to distribute this software. That means we all have to pull together and remove any patented stuff from the software, or bust the patents. But Novell thinks they have a wild card.. this deal they've signed. They think that because Microsoft will be giving Novell's customers a license to use the patents they will be able to keep distributing the software, if Microsoft allows them to. What Eben Moglen is likely to say, however, is that Novell is wrong. If Microsoft has patents that cover GPL licensed software that Novell wants to continue distributing, Novell must secure a license for anyone who receives the software from Novell not only to use the software, but also to redistribute the software. If they don't, they are in violation of the GPL and can therefore not distribute the software. Sure, no-one else will be able to distribute the software either but Novell is not in some privledged position, which they think they are.

Novells actions are dispicable (1)

Filter (6719) | more than 7 years ago | (#16790385)

Novell's actions are nowhere near the spirit of the GPL. Even if they get by section 7 on a technicality, I can judge for myself that they are no partner in the GPL relationship. For that I can make up my own mind to stay as far away from them as I can.

As for Microsoft, I would also say that a good part of the effectiveness of any license depends on the good will of the parties to the license, the lawyers and suits might convince themselves that they rule end users with the ironclad chains embedded in the EULAs they craft. I think without the good will and fairness that most end users feel towards the agreement, your going to be so busy trying to sue each individual. This is where I would call Microsoft and Novell hypocrites to now be bending (warping) the meaning of a fair agreement between the software producers, and themselves, the software distributors. What if some of us could think of technicalities around our obligations to their licenses.

Also, what makes Novells (and Microsoft's) product or support so inferior?

Why can't they compete in the market, are Red Hat, Ubuntu and the others that much ahead of them?

then what? (2, Interesting)

Tpenta (197089) | more than 7 years ago | (#16790395)

There has been a lot of folks in here commenting and asking the question about "If he finds it in violation, then what?", how about the converse question? What if Eben finds that it is not in violation?

Novell has copped an awful lot of crap over all of this. SJVN has also written an interesting perspective pointing out that Novelle is not SCO and a lot of the angst that is being directed asgainst them is quite possibly unwarranted.

You know somewhow, I can't see everyone who has bagged Novell over it coming out and saying "oops I was wrong".

So, what if Eben finds that it is compatible with GPL?

Tp

Re:then what? (1)

bonefry (979930) | more than 7 years ago | (#16795470)

> You know somewhow, I can't see everyone who has bagged Novell over it coming out and saying "oops I was wrong". > > So, what if Eben finds that it is compatible with GPL? Legally it may be compatible ... but it is not compatible with the purpose of GPL ... and that's to use, modify and redistribute GPL software freely (as in freedom). And, yes, you won't see anyone suddenly coming out expressing feelings of sorrow and regret ... simply because, legally or not, Novell fucked up all confidence we had in it ... and that's because Novell didn't asked the community or its customers first. Comprendre ?

Re:then what? (1)

John Jamieson (890438) | more than 7 years ago | (#16803310)

Then GPL 3.0 will get a new clause, and GPL 2.0 will wither away, because MS and Novell will have forced the issue.

itsatrap (0)

Anonymous Coward | more than 7 years ago | (#16790397)

this one definitely qualifies for the tag. let's get this one tagged up!

Re:OT: 9 hours and counting (0)

Anonymous Coward | more than 7 years ago | (#16790417)

So when will that ALTER statement finish?

You can reply to posts, but it won't do anything. And you can't reply directly from the post, you need to reply from the post page.

It also seems that this reply will have a 'parent', but it won't be nested.

RIP Novell (1)

SpaceLifeForm (228190) | more than 7 years ago | (#16790429)

You are either going to die financially or legally
unless you find a way to break these 'agreements'
with Microsoft.

Good luck.

re: GPL Section 7 Rebuttle (4, Insightful)

QuantumG (50515) | more than 7 years ago | (#16790431)

Yeah, imagine instead of crashing Linux with one powerful blow of Microsoft's patent war hammer they decide to, I don't know, make money from it.. how would you go about doing that? Hmm, well, you'd want to try to license those patents right? But this damn section 7 of the GPL says you can't do the usual non-transferable patent license, you have to do infinite and implicit transferance (much like the GPL itself). Bummer, can't make money off it, no wait! There is a way. What if we were to sell the licenses directly to the customer? See, if Microsoft doesn't threaten to sue the distributors of Linux and, instead, threatens to sue their customers, directly, then the distributors are not restricted from distributing the software under section 7. Thing is though, why would the customers pay Microsoft? They already have paid Novell right? Well, what if Novell was to pay Microsoft for the customers? That'd work, but why would Novell agree to pay for their customers? Ahhh, because if they don't Microsoft will sue them. Tangled. Web. We. Weave.

SuSE Customers (2, Insightful)

ntufar (712060) | more than 7 years ago | (#16790455)

if the patent license and royalty payments are between microsoft and the customer, then are the customers in violation of section 7 of the gpl? This could be bad news for SuSE customers...

It can be the case if you buy a SuSE Enterprise Linux Desktop bundled with Microsoft's "covenant". If you use your SuSE Linux to write GPL code Microsoft can now sue you for breach of this "covenant" rather than for patent infringement.

Beware developers. Microsoft aims here at ability of you, as independent developers, to write and distribute code you wrote.

Groklaw questions Novell deal (5, Informative)

Anonymous Coward | more than 7 years ago | (#16790465)

From the Groklaw's article [groklaw.net] :

Novell here is stepping outside the line of fire and agreeing with Microsoft that *end users* are the ones that you must go after in any patent infringement dispute. Shades of SCOsource. Thanks for nothing, Novell. More questions: When were Novell SUSE customers asked if they wished Novell to negotiate a agreement with Microsoft on their behalf? When were Novell SUSE customers asked about the terms of said agreement? What consideration does Microsoft get from Novell's customers? Does negotiating this agreement on Novell's customers' behalf indicate that Novell assumed Power of Attorney for their customers in this matter? Did Novell truly represent the best interest of their customers using Power of Attorney? Can Novell legally assume Power of Attorney for their customers without a written grant? Do Novell customers have the ability to "opt-out" of this agreement? Is this agreement binding on customers?

this FP for GNAA? (-1, Troll)

Anonymous Coward | more than 7 years ago | (#16790517)

Re:then what? (4, Insightful)

Shane (3950) | more than 7 years ago | (#16790529)

"So, what if Eben finds that it is compatible with GPL?" Then Novell did not break the law.

However, there is a far more important question before us: Did Novell act in a way that is beneficial to the community at large or harmful. If it was harmful, then it is safe to say they did not behave in a way compatible with the spirit of the GPL and I personally find unforgivable for company that claims to be FOR us.

Re:Microsoft gives permission to distribute under (1)

mrcaseyj (902945) | more than 7 years ago | (#16790533)

Oh, I get it now. They're supposedly not giving Novell permission to distribute, they're just giving Novell CUSTOMERS a promise not to sue for patent infringement in exchange for a big payment from Novell to Microsoft. That sounds like a distinction without a difference. If there is a difference and if Microsoft's patents are valid then this sounds kind of dangerous for Novell, since Microsoft can still sue Novell for distributing. Then again maybe it's not dangerous for Novell because if they get sued by Microsoft then they may be able to pull out some evidence that Microsoft did secretly give Novell permission to distribute, and thus blow away Microsoft's patents by showing Microsoft gave permission to Novell to distribute under the GPL.

Re:Gotta love lawyer double talk. (1)

LoveMe2Times (416048) | more than 7 years ago | (#16790535)

Not sure if replies are working right, but I'm responding to #16790369. Here's the wildcard, or the advantage that Novell has. You are correct that as soon as Microsoft sues somebody for patent infrigement, everybody, including Novell, must immediately cease distributing any GPL covered works that infringe that patent. However, Microsoft may be able to get an injunction during the patent litigation to stop all non-Novell users from *running* Linux. So while other providers like Red Hat are offering indemnity so as to cover legal costs and possibly damages, depending, non-Novell customers may be stopped cold until a non-infringing version is produced. Sure, Novell's business is dead in the water at that point along with everybody else, but they can try and drum up more business between now and then using the assurance that in the event of a lawsuit, their customers can continue business as usual. Now, what are the odds a judge would grant Microsoft an injunction that brought the economy to a grinding halt? Nill, I'm guessing. But Novell's customers might like the idea that their competitors are running Red Hat and will get shut down with an injunction. It's an odd situation, no doubt.

Re:Gotta love lawyer double talk. (1)

AJWM (19027) | more than 7 years ago | (#16794810)

"You are correct that as soon as Microsoft successfully sues somebody for patent infrigement, said somebody must immediately cease distributing any GPL covered works that infringe that patent."

There, fixed that for you.

Reread Section 7.
" 7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License."


First, if the suit is unsuccessful, no conditions are imposed.
Second, the GPL Section 7 only applies to the person on whom those conditions are imposed.

Now, it may well be prudent for third parties -- in the same legal jurisdiction in which the suit was filed, and if the suit went as far as a judgement that ruled the patent valid and that GPL'd code infringed (settlement without such judgement doesn't count, people often settle for reasons that have nothing to do with the legalities of the case) -- to also cease distribution of said code, but nothing in the GPL forces them to.

But they get the code, right? (1)

dilvish_the_damned (167205) | more than 7 years ago | (#16790539)

From the submission:

Novell on Tuesday published a document on its website, explaining that they circumvented the GPL provisions by providing a patent license to the end user rather than between the two companies.

Whatever there agreement is, I assume the end user gets the code used in the product in GPL license form right?

Bingo! (1)

MoxFulder (159829) | more than 7 years ago | (#16790543)

I think you've hit the nail on the head. This is the most convincing explanation I've read of what Microsoft is trying to do.

To paraphrase you: Microsoft threatens to sue Novell. Novell, in return for not being sued, agrees to buy patent licenses NOT for themselves but for each individual customer of theirs.

Devious, devious, DEVIOUS.

I really thought that Novell got it... (1)

Eric Damron (553630) | more than 7 years ago | (#16790571)

From the article:

"The company claims that it has worked around the GPL provisions by providing patent licences directly to customers and not between the two vendors."

However the Microsoft/Novell pact covers software that Microsoft is alleging would infringe on Microsoft's patents. Microsoft has specifically stated that this pact is not transferable to the users of Suse.

This makes it a violation of the GPL because it adds additional Licenses to software that would restrict some users (Redhat for example) from redistributing the software.

Novell, talk to your lawyers and see if you can get out of this deal. If not then make it clear that you are NOT violating ANY of Microsoft's patents and that you will NEVER do so.

As it stands now, Suse Linux is dead. Mono is dead. Pretty much any code already merged into Linux by Novell/Suse or that will be in the future will need to go under a rigorous review to determine if it may in fact violate Microsoft's patents.

I understand that nearly four hundred million dollars is a lot of money. I hope it is worth turns out to be worth it. I honestly can't see how.

Thank You, Mono and dot gnu are dead (1)

Douglas Goodall (992917) | more than 7 years ago | (#16802962)

I have been trying to explain that for months. The ECMA documents contain Microsoft Patented information. Software packages written off the ECMA documents infringe. Period.

What if? (0, Troll)

ihatepcs (1012879) | more than 7 years ago | (#16790597)

There has been a lot of folks in here commenting and asking the question about "If he finds it in violation, then what?", how about the converse question? What if Eben finds that it is not in violation? Novell has copped an awful lot of crap over all of this. SJVN has also written an interesting perspective pointing out that Novelle is not SCO and a lot of the angst that is being directed asgainst them is quite possibly unwarranted. You know somewhow, I can't see everyone who has bagged Novell over it coming out and saying "oops I was wrong". So, what if Eben finds that it is compatible with GPL? Tp
No the minute he says it is compatible with the GPL, he is immediately labeled a traitor by the community. And no one will pay it any mind at all. Thats how this whole thing goes.. no matter what whomever says that even suggests that this may not be the bad thing it's getting all the hype about, they are labeled a troll, thrown insults, vile comments and the like.

Re:What if? (1)

ihatepcs (1012879) | more than 7 years ago | (#16801098)

LOL.. i was correct on the troll part WOOT Was I wrong.. Nope 100%

Re:Gotta love lawyer double talk. (2, Informative)

QuantumG (50515) | more than 7 years ago | (#16790607)

Here's the wildcard, or the advantage that Novell has. You are correct that as soon as Microsoft sues somebody for patent infrigement, everybody, including Novell, must immediately cease distributing any GPL covered works that infringe that patent.

No, I did not say that, and that is not true. You only have to cease distributing if you're worried Microsoft is going to sue you. Even if you do stop distributing that doesn't mean Microsoft can't sue you for what you distributed in the past.

However, Microsoft may be able to get an injunction during the patent litigation to stop all non-Novell users from *running* Linux.

Yeah, and how are they going to get that? Judges don't have the power to make laws ya know. You can't get an injuction against people you havn't even sued and you can't sue "all non-Novell users". Can you please think before you say shit like that?

Now, what are the odds a judge would grant Microsoft an injunction that brought the economy to a grinding halt? Nill, I'm guessing.

How did your mind even learn human speech?

Don't look at it Eben! (0)

Anonymous Coward | more than 7 years ago | (#16790619)

In the spirit of the GPL and Free Software, any agreement between two companies about software that *I* wrote should be open for public scrutiny.

I'm sick of all this (0)

Anonymous Coward | more than 7 years ago | (#16790625)

I say we just raise a big army and take Microsoft out. It'd solve a lot of problems and then they'd all burn in hell faster.

No violation here... (2, Informative)

zcat_NZ (267672) | more than 7 years ago | (#16790674)

As I suggested on Groklaw earlier;

Apart from narrowing down the offered 'protection' to almost nobody, Microsoft
have given themselves the option of changing the terms at any time, which is
surely no different from having the option to sue at any time. An option they
already had.

The agreement is 100% FUD, "All hat and no cattle" -- it doesn't
violate section 7 of the GPL because, as near as I can tell it doesn't actually,
irrevocably grant anybody any rights or protection at all.

"Circumvent" (1)

bieber (998013) | more than 7 years ago | (#16790694)

Regardless of whether they're successful at it, there's no changing the fact that what they're trying to do here is to circumvent the GPL, and that's simply out of line with the community spirit, and wrong. Their latest move may or may not be illegal, but in PR terms, it really doesn't matter that much at this point.

Promise not to sue (2, Funny)

nuggz (69912) | more than 7 years ago | (#16790774)

The loophole is clear, they aren't giving anyone a license.

However IF there is a violation they promise not to sue certain people for using it.

I now think it's likely a valid loophole.

How could this NOT be a violation? (0)

Anonymous Coward | more than 7 years ago | (#16790836)

If Microsoft is granting patent rights to the end-users rather than Novell, than why is Novell even in the agreement and why are they getting paid? I'm supposed to believe that Microsoft is giving Novell millions just for the heck of it? Besides, it doesn't matter where the original license comes from, if Novell is relicensing under the additional patent restrictions, (you can't redistribute unless you're a paying Novell customer) then it's a violation of the GPL. If it's not a patent license restriction nor a contract, than it's just an empty promise with no weight in the courts. If that's the case, the question goes back to, "What's all that money for?"

anyone looked in the nosrc directories on the mirr (3, Interesting)

proudhawk (124895) | more than 7 years ago | (#16790868)

I've been poling around the source and distribution trees for opensuse lately and I have discovered one interesting point: there is GPL'ed software in the "nosrc" directories.

doesn't this violate section 7 on its face?

Re:anyone looked in the nosrc directories on the m (0)

Anonymous Coward | more than 7 years ago | (#16792490)

Could you be specific?

What is a ``license''? (4, Insightful)

TrumpetPower! (190615) | more than 7 years ago | (#16790884)

So, the whole idea of the dodge is that Microsoft and Novell have swapped some money and--in exchange--worked out an agreement whereby they won't be suing each other and their customers for violating patents the one or the other may hold.

Would anybody care to explain how that isn't just a re-wording of the textbook definition of a license?

I mean, if you explained to the judge that all you did was hold a sharpened piece of iron alloy near the upper portion of my thorax while indicating that you desired to take possession of my wallet...well, what kind of a blithering idiot of a judge wouldn't find you guilty of mugging me?

Cheers,

b&

Re: I'm sick of all this (0)

Anonymous Coward | more than 7 years ago | (#16791136)

I say we just raise a big army and take Microsoft out. It'd solve a lot of problems and then they'd all burn in hell faster.

We can't, the Democrats are in charge now.

This S--t is Getting Ridiculous (3, Interesting)

TheDark3rd (637523) | more than 7 years ago | (#16791244)

I can obviously understand the commercial distros backing off the mass marketing of their products in retail stores because of cost v. profit issues. I can respect that Novell purchased SuSE despite my deepest belief that it was a possible bad move when it occurred three years ago, however - what really pisses me off is that Novell actually believes that with the base of developers who created the tools assembled under the Novell/SuSE distro umbrella that they are going to let Novell off the hook just so we can watch the damn wmv files - f--k that!! Keep your damn media file formats as far as I care - I can get my machine to do what the hell I want it to do without Microsoft bullshit installed. Linux, and GNU software must remain free, I can respect if a piece of open software has to link to a proprietary file if it means adding functionality (i.e. the firmware files needed for the ACX-100 drivers, or USB scanners, etc.) but you don't throw out the baby with the bath water. These tools must remain free to be used, and freely available for distribution. The GPL does not allow for software under it's protection to be distributed with software that is not free for distribution, if it means that that non-distributable software may infringe on the right of the end user to use, analyze, or redistribute if they should chose to do so. Novell, good move to mainstream SuSE, bad move to believe it was yours to do as you please - watch for software to disappear from this distro as developers call on their software's removal due to GPL violations. I can't wait

What about Section 6? (0)

Anonymous Coward | more than 7 years ago | (#16791264)

The assumption seems to be that Novell would be in violation of Section 7 if they received the patent covenant from Microsoft. A violation of that section kicks in a no distribution clause. So, because of Novell's agreement, their customers get that covenant, so their customers are in violation of Section 7 if they redistribute. This means that the customers' copy cannot be redistributed, which is a violation of Section 6. Novell's agreement with Microsoft imposes restictions on their customers, who would violate the GPL if they redistribute without also passing along Microsoft's covanent.

fix the patented code. (-1, Flamebait)

prockcore (543967) | more than 7 years ago | (#16791336)

Boy, everyone here seems so dead sure that stuff in linux infringes on microsoft's patents. If that was the case, why get angry at novell for trying to protect their customers? Instead, find and fix the infringing code.

Nothing is changed, microsoft can sue redhat et al for patent infringement regardless of this deal with novell.

The amount of knee-jerk chicken littling here on slashdot is disgusting.

Novell does get an advantage (and legally) (2, Informative)

adah (941522) | more than 7 years ago | (#16791446)

If Microsoft has patents that cover GPL licensed software that Novell wants to continue distributing, Novell must secure a license for anyone who receives the software from Novell not only to use the software, but also to redistribute the software. If they don't, they are in violation of the GPL and can therefore not distribute the software.

You are right here that Novell cannot distribute the patent-infringed software either—Novell wrote that clearly on the online statement (are you anti-Novell guys really reading?). However, you missed one important point. Just think about SCO. SCO was threatening to sue the existing enterprise Linux users, but not just IBM, Red Hat, etc. And I remember somebody even paid to avoid suits. By signing this agreement with Microsoft, Novell customers can at least rest assured that they will not be sued by Microsoft. That is some relief, and that can give Novell some advantage in the enterprise market.

Novell buys freedom for GPLed software (2, Interesting)

Dark Fire (14267) | more than 7 years ago | (#16791480)

Novell paid Microsoft for a license to the end user for the GPLed software that it distributes. From Novell's perspective, it believes that it bought indemnification for it's customers. However, if Microsoft claims that GPLed code infringes it's patents and Novell is distributing the code, then Novell loses it's right to distribute the code. So Microsoft effectively breaks the terms of it's agreement with Novell. If Novell sues for breach of contract, the courts might rule that because Microsoft entered an agreement of this nature and then took steps which legally invalidated the agreement, that Microsoft has effectively bestowed an end user license to all of it's patents to all distributors and users of the affected code. Wouldn't it be ironic if Microsoft's own tactics upheld it's claims concerning the viral nature of the GPL?

THIS is the most interesting part of Novell's FAQ (0)

Anonymous Coward | more than 7 years ago | (#16791490)


The FAQ (http://www.novell.com/linux/microsoft/faq_opensou rce.html) at Question 1 states:

"Novell's end user customers receive a covenant not to sue directly from Microsoft for their use of Novell products and services, but THESE ACTIVITIES are outside the scope of the GPL." (emphasis added)

What activities are outside the scope?

Or more accurately, what activities do Microsoft and Novell's lawyers believe are outside the scope of the GPL? "Use of Novell products and services"?

It's good to see the /. community (thanks to Eben) finally starting to understand better what the actual legal argument is here that is going on, but in my opinion, the quoted line from the Novell FAQ gets to the very heart of the issue.

Concerned Suse users should ask Novell to clarify that section of its FAQ in order to make the corporation's logic leap more clear. Novell, please tell us what "activities" exactly you are referring to that are outside of the GPL?

Thank you Microsoft! (1)

Dark Fire (14267) | more than 7 years ago | (#16791494)

Novell's agreement with Microsoft provides a license to the end user for the GPLed software that Novell distributes. From Novell's perspective, it believes that the agreement provides indemnification for it's customers. However, if Microsoft claims that GPLed code infringes it's patents and Novell is distributing the code, then Novell loses it's right to distribute the code under the terms of the GPL. So Microsoft effectively breaks the terms of it's agreement with Novell. If Novell sues for breach of contract, the courts might rule that because Microsoft entered an agreement of this nature and then took steps which legally invalidated the agreement, that Microsoft has effectively bestowed an end user license to all of it's patents to all distributors and users of the affected code. Wouldn't it be ironic if Microsoft's own tactics upheld it's claims concerning the viral nature of the GPL?

Draft GPL v3 does NOT stop this kind of deal. (0)

Anonymous Coward | more than 7 years ago | (#16791572)

Re:Battle lines (1)

toby (759) | more than 7 years ago | (#16791600)

If Moglen decides that this is a violation of the GPL, the rules of the game will have changed for good,

Only if a court agrees with him. Which I, like many others, would hope for.

PJ said it best: [groklaw.net]

... I saw one headline that said Novell is not the new SCO. And I agree. Microsoft is the new SCO. Novell is EV1.

What about customers who re-distribute? (1)

the_arrow (171557) | more than 7 years ago | (#16791614)

So, the license is between MS and the customers of Novell. But what if one of those customers want to give away a program? The GPL quite clearly allows them to, but because of this deal (which no customer get any details about since it's secret) section 7 prohibits them to do that.
So it's not Novell who might break section 7, it's their customers.

FEAR (0)

Anonymous Coward | more than 7 years ago | (#16791616)

Novell's agreement with MS includes a promise that MS will not sue the end user WRT Novell's "OSI non-compliant open source" software that will be produced in collaboration with Microsoft in this deal. It has absolutely nothing to do with GPL software. Even if Microsoft says it does, even if Novell says it does. Prove it. Unless there's Microsoft patents in GPL software! Which, as far as anyone knows, there isn't.

Novell says their software produced in this agreement will be "open source", while the software Microsoft will produce in this agreement will be closed. When Novell says "open source", they are talking about their own flavor of open source. It obviously won't compliant with OSI's requirement to be freely redistributable.

How can Microsoft promise not to sue someone for their patents in some piece of software if there aren't any Microsoft patents in that piece of software? I don't get it.

There is nothing to fear except fear itself. People get scared. It seems to me almost as if people WANT Linux to get hijacked or something. I don't get it.

It's understandable that people are leary of Microsoft. They have every reason to be. But they also SHOULD have every reason to believe that Linux and the GPL are rock-solid, powerful international entities that aren't going to get knocked down by MS, IBM, SCO or anyone. Ok, so folks are pissed and they need a punching bag. It's understandable, of course.

I think Linux is going to weather this storm quite well. Novell... they may have a rougher time. We'll just have to wait and see what happens.

Unfortunate accident. (1)

eddy (18759) | more than 7 years ago | (#16791654)

"So, I know you drink water. There are a lot of sources of water in the world. But this water right here, it's special. See, you get ANY other kind of water... well, I make no promises, but accidents happen you know? Think of your family. Maybe you buy THIS water instead, no accidents, yes?"

confidential nda (1)

Miguel de Icaza (660439) | more than 7 years ago | (#16791666)

the gpl is a reaction against having to sign ndas to get the oh-so-secret printer driver code. the bsds were hobbled for years by the shadow of fud because of the oh-so-secret copyright out of court settlement.

when will we learn secret deals has no place around free software. it just leads to fud.

dump suse now. only use distros thar don't include mono by default (ubuntu 6.06 LTS, kubuntu edgy, redhat, oracle, slackware,...) "nuke the site from space. its the only way to be sure"

SCO is Out, Novell is In (1)

Tuqui (96668) | more than 7 years ago | (#16791712)

As for the lastest events in the SCO cases courts. It is clear to MS that SCO is already screwed up and the original Unix licenses are owned by Novell. MS change their player, they need to put another magnitude for the amount of money they are using against IBM and RedHat. And maybe a softer approach to Linux. Off course Novell knows that go into bed with MS feels betrayed at the end.

Novell is fully complient currently (1)

GauteL (29207) | more than 7 years ago | (#16791740)

IANAL, but the main thing is currently there is no known patents and no lawsuits.

Microsoft has promised Novell not to sue them or their customers, but there is no specific patent licenses and no mention of specific patents. Thus, they have just created a Fear, Uncertainty, Doubt situation towars other Linuxdistributors, basically getting potential customers to think "if they are doing this, there must be patents" and thus helping Novell get customers, since they are "immune".

In reality, Novell would probably lose their rights to distribution if Microsoft DID sue and this is what Eben Moglen will uncover. Thus for Linux and the GNU Tools, Novell may not be any better off than the rest. The exception is Mono.

Novell are the primary Copyright holders of Mono, and while there are probably contributors that hold some copyright, Novell would just need to rip those bits of code out and replace them, and then being the only ones that can distribute Mono. The GPL can do many things, but stopping the Copyright owner from distributing their own intellectual property, it can not.

I've always been favorable towards Mono, mainly because I trusted Novell about it. I no longer do, and neither should the GNOME developers. Currently it is only in as part of 'Tomboy' the sticky notes app, which can be easily replaced. Do not let it go further.

Is this all about Mono? (1)

Douglas Goodall (992917) | more than 7 years ago | (#16803020)

If Microsoft has promised not to sue Novell for Patent Infringement, that makes it ok for Novell to use Mono (written off ECMA documents). This would give Microsoft a .NET runtime on Linux. If this is the point of it all, it wouldn't surprise me if Microsoft throws in some help finishing up the mono class libraries so that Microsoft will be able to ship applications written for .NET onto the Linux platform. I am having a sinking feeling in the pit of my stomach. Since I have heard that major portions of their new operating system are written using their own .NET technology, how hard would it be for Microsoft to put their GUI on top of Linux? I thiknk I am going to be sick.

Novell loses (1)

anandsr (148302) | more than 7 years ago | (#16791792)

If the software that Novell distributes is patent encumbered and the users need the license from Microsoft. Then by definition Novell is knowingly distributing Patent Encumbered software for which they don't provide any license to their customers that will allow them to forward it to other people. This is by definition disallowed, it doesn't matter that the patents are owned by a third party. They are not allowed to distribute the software simple. Ofcourse nobody else is allowed either.

Re:customer problems? (1)

MarsDude (74832) | more than 7 years ago | (#16791850)

It is not the 'problem' that it's not possible to interact. As you've said... significant progress has been made by the OSS community. The problem is that NOVELL cannot guarantee anything about the interoperability between Linux and Microsoft.
By having this agreement they can make a promise their customers they could not make before. Corporations want this promise. Home users don't.

Patent stuff is FUD, me thinks, M$ has none (1)

thecarpy (1006527) | more than 7 years ago | (#16791950)

I think this patent stuff is all just FUD, I mean seriously, imagine for one second that M$ had the magic patent that covers this or that GNU/linux technology, they would have brought that up long time ago, why wait ... they have been fealing the GNU/linux pain for years now?
I find it pretty weird as well, that the banks all of a sudden put a lot of pressure on Novell, saying they would have to pay all their loans back, 'just because' Novell, like many other Tech companies, was late in submitting their finacial results .... this sounds real fishy to me. I am not usually a conspiracy theorist, but this is weird!
Well, I guess Novell will die soon ... in 2 years time, Novell will be dead!
How many times must we partner with MS, until we all see that it's suicide?
The answer my friend, is blowing in the wind, the answer is blowing in the wind!
IBM(DOS), Apple(gui), IBM(OS2), Sybase(SQL Server), SGI(OpenGL) ..... Novell(Suse)

Microsoft doesn't care.. (1)

twoblink (201439) | more than 7 years ago | (#16791958)

Actually, Microsoft doesn't care about Linux; what they want to do is to fragment the market even more; and then step in and say "See all the mess? You should have stuck with us in the first place." That is what's happening right now.. When you say "Linux" which linux are you talking about??

Why I now push the Postgres + *BSD route for all my clients..

it still doesn't matter (2, Informative)

idlake (850372) | more than 7 years ago | (#16792002)

Even if the deal is GPL-compatible, if Microsoft actually asserted any patent, Novell still couldn't distribute the software in question anymore.

In any case, it's good to see that GPLv3 will just make such deals completely impossible.

Is there a problem at all? (0)

Anonymous Coward | more than 7 years ago | (#16792016)

Does this deal also cover OpenSuse? If yes, anybody including Red Hat, Debian, Ubuntu and others could download a copy of OpenSuse, put it on the shelf and would be protected from any patent claim Microsoft could ever make against Linux.

Newsflash: MS paid to Novell... (2, Informative)

AVee (557523) | more than 7 years ago | (#16792020)

The general response from the OS community about this deal is really starting to become disgusting FUD. Especially because it comes from the people who allways the first to point fingers when others are spreading FUD. Everybody is so upset about how Novell paid MS for a patent license when in fact it's MS who paid Novell, not the other way around. Not to mention the fact there is a mutual do-not-sue agreement, no patent license. Novell managed to get money from MS, managed to make them pledge not to sue their customers, their contributors and unpaid open-source developers. They also got MS to work with them on providing compatible document formats. In return they promised not to sue MS customers. Cleary that makes Novell more evil than the devil himself. And indeed MS is using it to spread FUD, as usual. But this time everybody here seems to fall for their FUD...

Re:Newsflash: MS paid to Novell... (0)

Anonymous Coward | more than 7 years ago | (#16794326)

You're right, MS as usual has absolutely nothing but the best intentions here. Why else would there even be talk about Novell customers being sued by MS unless MS was simply extending the hand of friendship? MS is simply giving $348 million to Novell out of the pure goodness of their hearts, you rabid anti-MS zealots! MS is getting absolutely nothing out of this deal themselves, besides a promise by Novell not to sue MS' customers (which clearly Novell was on the verge of doing). Oh sure, MS is also getting a percentage of the revenue of all Suse Linux sales as part of the deal, which may increase as MS threatens companies using nonSuse Linux distros. But money isn't everything. I mean, MS will be gaining valuable knowledge on using Suse Linux in a virtualized environment that clearly could not be accomplished with existing technology like VMWare. And they will be working with Novell on "interoperability collaboration", though the "lab" where this research will occur has not been built yet or even reached the initial planning stages yet, and the "interoperability" has already been said to not guarantee 100% compatibilty, but I'm *sure* that these insignificant details will be ironed out before the 5-year deal is over. I mean...come on people, MS is being totally altruistic about this! You FUD-spreading Linux fanatics are just being unreasonable!

Re:Newsflash: MS paid to Novell... (1)

AVee (557523) | more than 7 years ago | (#16801186)

I wasn't talking about MS, nor about it's intentions. And I clearly not stating MS is the most noble company ever to be found on this planet. But just take a deep breath, for a change think before you cry wolf again, look a this deal and ask yourself who is having who by the balls here.
MS got only one thing out off this, a change to spread more FUD, and most of the so called 'open-source community' (the part that does the yelling, not the ones writing the code...) is currently very busy helping them spread their 'message'. I'm sure some people in Redmond are currently laughing their ass off because they found a lot off the open-source followers are even dumber then their average customer...

BSD Zealots speak up!! (1)

Ingolfke (515826) | more than 7 years ago | (#16792626)

Maybe now is the time to raise BSD from the grave... because last I checked BSD didn't have to worry about all of this bullshit from the high church of the GPL.

Impact of GPL on non-SUSE distributions? (1)

Ingolfke (515826) | more than 7 years ago | (#16792678)

My cousin asked me a question yesterday that I didn't have the answer to... and in a tangential way it's related to this discussion.

I use a Fedora, but she's an avid fan of Gentoo. So the question was, when GPLv3 is released will she need to reemerge all of her Gentoo packages? If so, is there going to be a USE flag "GPLv3" or something so you can make sure the packages are compiled with GPLv3 installed... maybe you can just link them to it like you would with a library. I checked Gentoo's web forum (I was impressed, better than Fedora's) and didn't see this question and haven't got a response back yet. Anyways... if you guys don't have a technical response... any thoughts on the legality of this... is it going to be required when GPLv3 is released, and can you link to the GPLv3 like a library (is GPLv3 under the LGPL?).

Thanks... hope some of that made some sense.

Why so vauge? (1)

walterbyrd (182728) | more than 7 years ago | (#16793570)

Specificaly what patents are at issue? Why is this a big secret?

Is this just msft's way of saying: "use redhat and you might be looking at a lawsuit" ??

RedHat is the company that msft hopes to kill, make no mistake about that. When Sun or msft say "Linux" they mean Redhat.

CORRECTION (1)

Rogerborg (306625) | more than 7 years ago | (#16795008)

End users do not receive a "license". Novell's paying customers are being told that Microsoft has agreed to refrain from suing them over patent violations.

There is no license. There is no promise, and no contract. There is no indication that this is in perpetuity. The details are being withheld from the customers.

In short, Novell's paying end users have nothing to rely on, except for Microsoft's good will. Novell's other end users, and every other Linux distributor and user, lack even that degree of confidence.

Microsoft is coming for us. They're coming for us now.

Then when they've crushed us, they'll come for Novell.

Re:CORRECTION (1)

Douglas Goodall (992917) | more than 7 years ago | (#16803060)

"Alia keeps pace with the storm"

draft GPLv3 vulnerable to this type of deal. (0)

Anonymous Coward | more than 7 years ago | (#16798100)

Everyone is seems to be assuming that draft GPL V3 is not vulnerable to deals of this type. It is actually more vulnerable! This is because of the following change:



In GPL V2 we have:

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.


The corresponding section from GPL V3 reads:
For example, if you accept a patent license that prohibits royalty-free conveying by 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 conveying the Program.

Note how "would not permit" has been changed to "prohibits". What the authors of GPL V3 do not seem to realize is, that a patent License does not have to prohibit anything! All "prohibiting" is done by the U.S. code. A patent license can grant some rights while failing to grant other rights. This is not "prohibiting".

The ironic thing is the GPL works the same way. The FSF has been boasting for years that the GPL is not a contract. See:
http://www.groklaw.net/article.php?story=200312142 10634851 [groklaw.net]

  It grants some rights and fails to grant other rights. This is explicit in the GPL:
5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.

You see! The GPL does not prohibit anything! All prohibiting is done by title 17 of the US code. There is no reason that a patent license could not do the same thing with Title 35 of the US code!

The change from "would not permit" to "prohibit" does make sense. If "would not permit" is read as "fails to explicitly allow" then the "for example" statement is not an example! Let us look at the "for example" statement in context:
7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. 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.

What if you accept an agreement, which is a patent license, that does not impose any conditions or obligations on you that are inconsistent with GPL? This could happen, for example, if all the patents mentioned were invalid! Or it could happen if you were the recipient a patent license that was a unilateral grant of rights and you never agreed to anything. (Like the GPL). If "would not permit"; is read as "fails to explicitly allow" then the "for example" statement could apply even though the two sentences above it fail to apply. In short you could have an "example" that is not an example of anything!

That is why I believe that "would not permit" should be read as "prohibit" in GPL version 2, in any case!

The authors of GPLv3 were aware of the effect of this change! Note 92 of the GPLv3 Second Discussion Rationale reads as follows:
The example given here is reworded slightly to make it clearer that it is acceptance of the patent license (a self-imposition of conditions) that activates the section, and that the effective terms of the patent license must actually prohibit exercise of GPL freedoms by downstream recipients. A distributor who accepts a patent license that does not activate this section may nonetheless be required to comply with the second paragraph of section 11.

Unfortunately, the second paragraph of section 11 will not stop the MS-Novell deal either! It reads as follows:
If you convey a covered work, knowingly relying on a non-sublicensable patent license that is not generally available to all, you must either (1) act to shield downstream users against the possible patent infringement claims from which your license protects you, or (2) ensure that anyone can copy the Corresponding Source of the covered work, free of charge and under the terms of this License, through a publicly available network server or other readily accessible means.

Novell already puts the source of all GPL programs it distributes online. Since Novell can claim that all MS patents are invalid, everyone has their rights under the GPL. Thus, Novell can claim that it complies with (2)!

Maybe I missed something? (1)

Jezter!*+$nothername (871161) | more than 7 years ago | (#16806174)

Surely the main FUD is that Microsoft would actually sue any customers in the first place. If SCO taught anybody anything it's that suing your existing or potential customer base is not a good business move.

I use both SuSE and Microsoft software, Microsoft know that as the damned stuff is registered with them, would Microsoft care that I used Red Hat or any other distro as long as I've got their product too? If I was not using Microsoft products and was a purely open source shop how would they know?
The only way that Microsoft could effectively start a patents suit against non-Microsoft users is to issue a form of wholesale trawl through everybody's company infrastructure to prove it, they would then have to find something to sue for.
How, exactly, would they ever gain that level of intrusive permission from any court anywhere?
"If it pleases the court, we have reason to believe that some people are using software, of which we have no details, that may or may not infringe upon our patents." "Hmmmm! Dismissed. Next!"
Or they could target a company and go after them and then what? They then risk taking on IBM, Sun, the entire Linux and Nix community and their patent banks? That sounds like madness to me and it's the reason no such attempts have been made (SB spouted FUD about infringements was just that, FUD!). The collective war chests of patents assure one thing and one thing only, any attempt at a patents war from either side would result in a mutually assured destruction of both sides. Legal costs and time, customer alienation and the potential for the loss of those patents would prohibit any such attempt.

Oh, by the way, do I intend migrating from Suse to another distro? Absolutely not.

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