Politics, politics (Novell-Microsoft Deal)

[Void Main]

http://www.lamlaw.com/

November 17, 2006 - Friday

6:41 AM PST - Getting Cute with the GPL (Groklaw)

There are a couple of questions that the Groklaw article does not answer. And of course it is obvious why answers are not readily available.

The first question is whether or not the Novell-Microsoft deal violates GPL 2. I think it does. Certainly in spirit if not in the letter. But, what is clear so far in coming from Mr. Moglen is that his opinion is not being expressed yea or nea. Now, please do not be too surprised here. It is easy for me to state a rough opinion on that matter. I do not represent the FSF. Mr. Moglen does. So any public statement from him has to be made only in consultation with his clients. And often times that means you do not make public statements at all.

And that is why in large part the word coming from Mr. Moglen relates more to the upcoming word changes for GPL 3. That is fine. The whole process of drafting GPL 3 is open.

The tricking part for GPL 3 is going to be in accomplishing what Mr. Moglen suggests.

"GPL version 3 will be adjusted so the effect of the current deal is that Microsoft will by giving away access to the very patents Microsoft is trying to assert."

That is fine you say. But, that is hard to accomplish when Microsoft (for example) is not a licensee of GPL 3. So how can a license between say Novell and the FSF obligate Microsoft in some way. Such as granting all necessary patent licenses without royalties, for example. Well, you can not do it directly. All you can do is impose an obligation on the actual licensee (such as Novell) to assure that is the case for of its customers and their distributees. Or, what? Or, they (Novell) can not distribute the code themselves.

The GPL currently has language such that if the licensee can not comply with its terms, the licensee must cease and desist re-distribution themselves. This is a very nasty result. Just keep in mind that SCO claimed it was going to force IBM to stop selling AIX and when it did not comply with that demand, SCO sued IBM for copyright violations. The problem is that SCO had no such power to make the initial demand. And yes, that is the primary subject of one of the motions for summary judgment pending as we speak. And yes, I fully assume that IBM will be successful in getting their summary judgment motion against SCO on that issue.

And of course the problem is not really that Microsoft and Novell want to invalidate the GPL in some way. Novell may be trying to figure out how to make a buck with Microsoft. And that is okay. Microsoft on the other hand seems willing to part with hundreds of millions of dollars if it can somehow invalidate the GPL or engage in business in such a way that it is ineffective. And for Microsoft ineffective means getting developers to stop making contributions of code under the GPL. And this is a deliberate attack by Microsoft upon all open source developers. Possible patent royalties are almost a side issue. Microsoft wants to discourage individual and corporate developers from using the GPL. Pure and simple. To think otherwise would be naive.

If Novell wants to harm the GPL in this way with its own code, that is its right I suppose. But, if it was Novell's code they could dual license it anyway. What Novell can not do is dual license code it gets by way of the GPL. And this is why I believe that the Novell-Microsoft deal does violate GPL 2. Novell has violated it because it thought it could make a few extra bucks with a few enterprise customers. (Maybe IBM as indicated below. Maybe not IBM.) And Microsoft wants to invalidate the GPL and collect a few royalties while it is at it. Actually, Microsoft wants similar deals with all Linux distributors and it has said precisely that.

So the question is how do you stop Microsoft from collecting royalties on code contributed and licensed under the GPL? Or, how do you prevent Microsoft from collecting some royalties from each copy of Linux distributed? And, of course that means no more copies without money changing hands. That is what Microsoft wants to force upon everyone else. Microsoft competes with Linux. And every dollar that consumers must pay for Linux permits Microsoft to tack on that dollar to each sale of its product. That is the whole idea behind forcing a competitor to pay a license fee when you compete directly with them. The problem is that the IP belongs to someone else. And Microsoft is illegally trying to collect royalties on the work of others.

Is the FSF going to sue Novell? Probably not. I am sure Mr. Moglen and Novell lawyers have talked briefly about this. And I am sure Mr. Moglen is not going to tip his hat until such time as an actual law suit is filed. And I am sure the FSF and other distributors are not finished talking about this issue. But, GPL 3 is on the way.

The only rub, if there is one, is that so far the decision makers for the Linux kernel have not expressed a preference for GPL 3. Interestingly enough, the Novell-MS deal may tip the scales a bit. And when you talk about the powers that be you are not just talking about the OSDL (Open Source Development Labs). You are really talking about the individual and corporate contributors of the code. I would expect that some contributors of GPL code may say the Novell deal is just fine with them. But, certainly many others are saying "no way Jose". There are certainly any number of contributors that are going to demand that if their work is going to come back to them by way of other distributions, it will do so with any and all protections and benefits that Novell now seems to think its customers want. So Mr. Moglen is right on track. If Microsoft is going to stick its nose and hand into the distribution system for GPL products it will have to give up any and all patent rights in that regard. Right now, Microsoft wants to force GPL software to be paid for while it gets a monetary slice. That is what the Novell-MS deal means to Microsoft. Simply put, a way to attack and prevent open source from competing with Microsoft unless it collects money too. But, Microsoft is forcing its collection off money for the IP belonging to someone else. A thief in other words.

[Void Main]

I usually don't like Dvorak too much, but this article is disturbing at best!
I sure hope he's wrong this time (like he has been many times before, but still ...)

Heh heh, that man needs to find another line of work. :) He obviously doesn't have the fundamental understanding of a single thing he mentioned in the article.

Check this out

What a moron. I don't believe what he is saying in the video. I think he's just that dumb.

[JoeDude]

Isn't that the standard coverup for oops, I'm an idot and made a public ass of myself?

[Void Main]

Looks like Novell has no intentions of backing out of their deal:
http://www.groklaw.net/article.php?stor ... 9163021490

Bad move. SUSE is dead.

[Calum]

so, taking a leaf from a certain other company's book, microsoft can't resist dropping the other shoe. What do you think of all this then?

http://www.theregister.co.uk/2006/11/20 ... inux_code/

[Void Main]

As we've been saying, Ballmer needs to spell out exactly what infringes and then sue someone over it. Until then, it's just a load of hot air meant to scare companies away from using Linux. I hope he lands himself in jail. Maybe the Department of Homeland Security can do something about him. I mean he really is nother more than a bald, fat terrorist.

[worker201]

The Microsoft Way (R) would be to list exactly what the infractions are right on the summons, but give away no hints or warnings beforehand. Whether that's legal or ethical is not really their concern.

[Void Main]

It would appear that Mono is covered in the M$/Novell deal even though Miguel de Icaza (founder of Mono, Ximian, Gnumeric, etc, etc) doesn't seem to know it. There's an interesting thread over at Groklaw where PJ and Miguel exchange posts (I even get in on it with the comment about the EWeek story). The interesting part starts here.

[Void Main]

Novell and Microsoft both speak:
http://www.groklaw.net/article.php?stor ... 0203431766

I detect the beginning of some back-pedalling on at least Novell's part. I think Microsoft is realizing they got a lot more than they expected. SUSE is going down the tubes. If Novell has any brains at all they will break this deal with Microsoft and apologize to the community.

[Calum]

they should loudly and publicly denounce microsoft, if they want to salvage anything at all.

microsoft are clearly using this as terrorism as you say. They obviously intend to generate a stigma about linux in the same way the frauenhofer attempted to generate a stigma about the mp3 file format ie: anybody who uses it is "bad".

evil, perhaps, but i'm not prepared to be called bad!

edit: here's an interesting little interview with Eben Moglen about GPL3 in relation to this: http://www.theregister.co.uk/2006/11/20 ... print.html

what i find interesting is the analysis of the terminology of Free/Open software in that article.

Also, if the Reg is to be believed, it looks like Suse / Novell have no intention of turning their back on the Open / Free software communities, but have simply commited the universal sin of not being as sneaky as microsoft.

[cdhgold]

more on the novell deal with the devil

http://www.theregister.com/2006/11/21/novell_ms_titfer/

quotes from the above by Novell "Importantly, our agreement with Microsoft is in no way an acknowledgment that Linux infringes upon any Microsoft intellectual property. When we entered the patent cooperation agreement with Microsoft, Novell did not agree or admit that Linux or any other Novell offering violates Microsoft patents."

Quote from microshaft
"We at Microsoft respect Novell's point of view on the patent issue, even while we respectfully take a different view. Novell is absolutely right in stating that it did not admit or acknowledge any patent problems as part of entering into the patent collaboration agreement. At Microsoft we undertook our own analysis of our patent portfolio and concluded that it was necessary and important to create a patent covenant for customers of these products. We are gratified that such a solution is now in place."

thoughts?

Chris

[Void Main]

That's pretty much what the groklaw article was about that I posted a couple of posts before. They nice thing about groklaw is you get to interact with the actual players. I have actually asked questions of Linus and received responses from him as well as Miguel in this issue. I think PJ asks the appropriate question right in the article:

http://www.groklaw.net/article.php?stor ... 0203431766

What in the world was this deal about then?

The only possible way this issue can be resolved in my eyes is if Novell retracts anything in the agreement relating to patents and Linux, and they need to make a co-announcement with Microsoft stating that this has happened, so that there is no doubt in anyone's mind that this agreement is not about patents and Linux, and they need to do this swiftly. They can just look at it as a "lesson learned" and they will get eventually get the trust of the community back. If they let this stand I can guarantee SUSE will wither into nothingness.

[Void Main]

I hate to link to this one because it is from Red Hat a direct competitor of Novell but they did chime in and it is on Groklaw. I personally think they would be better off not saying anything because they can just sit there and gain ground in this one. Response from Mark Webbink:

http://www.groklaw.net/article.php?stor ... 1181432772

[Void Main]

Now it makes Fox News:
http://www.foxnews.com/story/0,2933,231047,00.html

And Computer World:

Linux users to Microsoft: What 'balance sheet liability'?
'I took great offense to Ballmer's comments,' says one CIO

[Calum]

!

looks like everybody's throwing their own croutons into the soup now!