Eben Moglen To Scrutinize Novell-Microsoft Deal

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."

So if the deal violates GPL...

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?

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

Re:

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

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.

They forgot one:

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

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:

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

Go Eben

Kick some heinous ass.

Microsoft gives permission to distribute under GPL

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

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 P

Here We Go Again

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 fre

In europe? Shoot charlie mcgreevy, quick.

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

that a GPLv3 is sorely needed?

Re:

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.

OT: 9 hours and counting

So when will that ALTER statement finish?

Boycott in 3...2....1

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?

GPL Section 7

If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all.

For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

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.

customer problems?

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.

>(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

Gotta love lawyer double talk.

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.

then what?

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

RIP Novell

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

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.

Groklaw questions Novell deal

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?

Re:then what?

"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

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 withou

Re:Gotta love lawyer double talk.

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 c

But they get the code, right?

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 en

Bingo!

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

Re:Gotta love lawyer double talk.

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?

No violation here...

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 op

Promise not to sue

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.

anyone looked in the nosrc directories on the mirr

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?

What is a ``license''?

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&

This S--t is Getting Ridiculous

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

Novell does get an advantage (and legally)

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 the

Novell buys freedom for GPLed software

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?

Thank you Microsoft!

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

Re:Battle lines

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

What about customers who re-distribute?

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

Unfortunate accident.

"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 THI

SCO is Out, Novell is In

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 agains

Novell is fully complient currently

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 F

Novell loses

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

Re:customer problems?

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 thi

it still doesn't matter

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.

Newsflash: MS paid to Novell...

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...

BSD Zealots speak up!!

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?

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

Why so vauge?

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"