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What the GPLv3 Means for MS-Novell Agreement

Posted by ScuttleMonkey on Wed Mar 07, 2007 03:47 PM
from the dry-as-a-cracker dept.
eldavojohn writes to mention IT Business Edge has a dry but interesting interview with a lawyer (Antoinette Tease) on the effects the GPLv3 on the Microsoft & Novell alliance. From her answers: "Unlike prior versions of the GNU General Public License (GPL), which did not address patent rights, the current draft of the GPL version 3 has several provisions that address patent rights. Section 2 states that the license to use the open source code 'terminates if you bring suit against anyone for patent infringement of any of your essential patent claims' based on any version of the open source program." She goes on to say "the GPLv3 as currently drafted would impose an obligation on Novell to somehow 'shield' its customers from patent lawsuits brought by Microsoft, or, alternatively, to make the source code publicly available..."
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[+] News: RMS transcript on GPLv3, Novell/MS, Tivo and more 255 comments
H4x0r Jim Duggan writes "The 5th international GPLv3 conference was held in Tokyo last week. I've made and published a transcript of Stallman's talk where he described the latest on what GPLv3 will do about the MS/Novell deal, Treacherous Computing, patents, Tivo, and the other changes to the licence. While I was at it, I made a transcript of my talk from the next day where I tried to fill in some info that Richard didn't mention."
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  • Patent rights (Score:3, Informative)

    by hexene (68121) on Wednesday March 07 2007, @04:01PM (#18266422) Homepage
    Er, GPLv2 does address patent rights. It's just that GPLv3 overhauls how they're handled.
  • by Spazmania (174582) on Wednesday March 07 2007, @04:02PM (#18266436) Homepage
    The correct language in GPL v3 would be something like, "This agreement is void in its entirety if the covered software is found to implement a current, valid patent whose owner has not offered the patent for use for free in any manner comperable to how it is used in the covered software." They keep trying to skirt the issue, which is that you can't have free, open-source software if it implements non-free patents or if the patent license materially impacts what you would otherwise be able to do with the software or change the software in to.
    • by Chmcginn (201645) on Wednesday March 07 2007, @04:15PM (#18266588) Journal

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

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

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

  • Nothing (Score:3, Informative)

    by edbob (960004) on Wednesday March 07 2007, @04:05PM (#18266480)
    As far as I know, the Linux kernel will remain with GPLv2. Right now, nothing is covered by GPLv3, so it means nothing. It should get interesting if some open source component used in Suse goes with GPLv3, though.
  • by shinma (106792) on Wednesday March 07 2007, @04:09PM (#18266516) Homepage
    That thinks Antoinette Tease sounds like a porn star name...
  • by starseeker (141897) on Wednesday March 07 2007, @04:26PM (#18266740) Homepage
    As much as I like the idea of protective clauses in the GPL3 license, I have a feeling that the people inclined to make trouble for free software with patent cases are unlikely to be in a position where the GPL would stop them. They will be competing with GPL software, not using it - being forbidden to use it won't stop them at all.

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

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

    However, these mechanisms cannot be entirely relied upon. JMRI is certainly an example: http://jmri.sourceforge.net/k/index.html [sourceforge.net] So long as patents can be filed on software, there is the potential for a slaugher among free projects. I can't think of any license change JMRI might have made that would avoid their current situation. Patents will always pose a serious threat to free sofware, as the representative of commerical control interests. Indeed, I would expect that if patents are abolished some other method would be found, but at least it would be more difficult.
    • by H4x0r Jim Duggan (757476) on Wednesday March 07 2007, @04:40PM (#18266884) Homepage Journal

      The point you make in the first paragraph is correct. Stallman points this out:

      We keep looking for ways to protect the users from the danger of software patents, but there's only a limited amount that any software licence can do this. The thing that makes software patents so dangerous is that somebody that you've never heard of and with whom you have no relationship whatsoever can have a patent covering a technique that you implemented, and sue you for the code you wrote.

      This is precisely why software patents are so bad, and since you have no relationship with that person, there's no opportunity for any licence on your software to have any effect on him. So all we can do is get rid of a small part of this large danger for all software developers.

      Quoted from here (scroll to the audience member's 2nd intervention): Stallman speaking in Bangalore [fsfeurope.org]

  • Wrong, wrong, wrong (Score:5, Informative)

    by massysett (910130) on Wednesday March 07 2007, @04:48PM (#18266972) Homepage
    Did the person interviewed for this article actually read the draft [fsf.org]?

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

    I hope the article is a distortion of what this attorney said. If it isn't, then anybody who has hired this lawyer for anything software-related should get another lawyer, pronto.
  • Equality? (Score:4, Interesting)

    by CherniyVolk (513591) on Wednesday March 07 2007, @07:30PM (#18269162)

    I read the original article and it seems the meat of it's argument is that if A can be held responsible, then B should be too. Supporting the argument with a question of difference between A and B.

    The difference is this. Profit.

    Open Source doesn't stand to profit off of it's efforts. Never mind Red Hat, SuSE et al. My contributions are done with 100% generosity with no intention, expectation or hope of return of any kind other than the concept of personal acheivement or contibution to a greater good. The later is tricky, because Adam Smith in his published works imply that within Capitalism, that a person, regardless if he feels so, usually contributes to a greater good (society) far more than he realizes underneath a capitalistic society, with every ounze of incentive being from currency (or a pay check).

    I argue that while a pay check might motivate some to get out of bed and "work", it's certainly not the only thing that might equally motivate someone. Because, "work" is only "work" if you are getting paid for it, otherwise, it's a "hobby"; and contrary to popular belief including the line from Office Space, yes there are people who do enjoy being janitors. Admittedly, likely not enough however, one does what one can and all that is needed is a desire to contribute and with enough those of lesser ability would feel proud to contribute anyway they can. "Tech Support", "Testing" are all Janitorial services within IT... and obviously, there are plenty that enjoy it.

    It's odd, while we're talking about incentive and what motivates a man. A paycheck really is one of the weakest forces of all the Classical motives for extreme human effort; compare the motivation of vengance, retribution, survival, integrity, patriotism/nationalism (a broader sense of family bonding and sense of self, belonging and representation). Even Machievelli pointed out that the first to run from the battlefield will be the "mercenaries", and so true that infact is.

    The major difference between Proprietary Software and Open Source Software, is the goal and intentions of each. Intention is a viable concept for precedence; no matter what the case might be. For example, Apple Corporation and the Beatles for example on how "intention" can turn the tides of otherwise blatant infringments (The Beatles did have a valid claim... if only considering the surface.)

    The main goal of Proprietary Software, Personal Gain, usually in the form of capital, market dominance, or any perceived benefit that clearly identifies a positive benefit within a Capitalist ideology.

    The main goal of Open Source Software, more or less, Communal Gain.

    All other things, in my belief, are by products to propel an effort towards the main goal. Communal Gain can not be achieved if you leave anyone out, so, to ensure that everyone may benefit, there is less demand of return or, any quid pro quos, conditions, restrictions are such that, the end result is within reasonable reach of Everyone. To amplify an extreme for clearly showing "reasonable reach", it's simply best to make the product "free"; for which, there exists no retort as for it's availability. For Capitalism, you'll have everything geared towards protecting the flow of capital, make as many streams of capitals available as possible. As a result, patents, copyrights, controlled distribution channels, controlled substances (like certain chemicals etc. required for making anything really useful) making physical ability to reproduce much more difficult... all of this is in place to ensure that only certain people will ever be in a position to "provide" or "offer" a product to the consumer.

    Because Patents and all are more geared towards protecting a Companies benefit, I have argued in past posts, that enforcement of legislation and consequences should only apply to Companies in violation of their own measures. The "guy in a garage" doesn't have the breadth and depth to really threaten Sony Entertainment's production line... so, he should be exempt
    • by PhysicsPhil (880677) on Wednesday March 07 2007, @03:56PM (#18266342)

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

      Can't they do both?

    • Re:micro$oft (Score:5, Insightful)

      by gstoddart (321705) on Wednesday March 07 2007, @03:59PM (#18266388) Homepage

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

      FUD and misdirection I should think.

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

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

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

      Cheers
      • by H4x0r Jim Duggan (757476) on Wednesday March 07 2007, @04:22PM (#18266670) Homepage Journal

        > FUD and misdirection I should think.

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

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

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

        • by Rycross (836649) on Wednesday March 07 2007, @04:37PM (#18266850)
          I think that its more about Microsoft being able to say they interop without having to actually do it in a real, significant way. That way they can avoid possible lawsuits without actually having to give people a possible migration path. They're getting sued in the EU over interop issues after all... and it does fit in with Microsoft's MO. Not that FUD isn't a nice bonus.
        • I don't understand (Score:5, Interesting)

          by Degrees (220395) <(ten.labolgcbs) (ta) (seerged)> on Wednesday March 07 2007, @05:21PM (#18267346) Homepage Journal
          I have to admit: I don't understand the idea

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

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

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

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

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

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

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

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

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

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

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

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

            So GPLv3 will say: "No giving in - no selling out". If some code violates a patent, we try to get the patent thrown out, or we ditch that piece of code. GPLv2 said that too, but Novell found a loophole. That will be closed.
          • by Rycross (836649) on Wednesday March 07 2007, @05:22PM (#18267356)
            I never understood people complaining about GPL3 being a political license. Of course it is. GPL has always been political. The very reason for it existing is political. It was made to encourage the spread of Stallman's views concerning software, and to enforce the FSF's definition of Free software. And there's nothing wrong with that. You aren't being forced to use it.
          • by H4x0r Jim Duggan (757476) on Wednesday March 07 2007, @05:26PM (#18267414) Homepage Journal
            No, Novell can't replace the GNU bits with BSD bits - even the BSDs don't do that!

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

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

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

            Oh, and as for Stallman being surrounded by sycophants - his main job is travelling and giving speeches and answering emails - he hears criticism and questioning every day.
            • by TheRaven64 (641858) on Wednesday March 07 2007, @05:59PM (#18267836) Homepage Journal

              An operating system's libc has to marshal between the kernel and the userspace - Glibc has been doing this for 15 years for Linux and the GNU userspace. A new libc would be a world of problems.
              Actually, it's surprisingly easy. Obviously it's non-trivial, but BSD libc implementations tend to be quite portable. Issuing a system call is done differently between Linux and BSD[1], but that isn't much of a problem since everyone uses a macro or an inline function wrapping the assembly that issues the system call. *BSD and Linux system calls have very similar semantics in a lot of cases. Since they both aim to implement POSIX / SUS, they both tend to have very similar arguments to their system calls. If you look in the FreeBSD kernel's Linux compatibility layer (for example), then a lot of Linux system calls are handled by the function that handles the corresponding FreeBSD system call; the only difference is the system call vector that handles the calling-convention translation.

              The vast majority of Free Software runs on FreeBSD at least as well as it runs on Linux (there are occasional Linuxisms, but people seem to be getting better at avoiding them), so there aren't any issues with most applications running on something other than glibc. Incidentally, glibc itself isn't particularly tied to Linux; it runs happily on HURD, and has been at least partially ported to FreeBSD and Solaris (I don't know the current status of either port, however, since they were not integrated into the main tree).


              [1] Both use Interrupt 80h, but Linux uses the DOS calling convention, and passes arguments in ebx, ecx, etc, while *BSD uses the UNIX convention and passes arguments on the stack. Both pass the system call number in eax.

    • by vivaoporto (1064484) on Wednesday March 07 2007, @04:14PM (#18266570) Homepage
      But there is no denying, that it is a weapon (bomb), and that businesses may want to give the idea another thought -- or opt for BSD-licensed software instead.

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

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

      In short: you have the right to not distribute GPL'd software. If you do, you must abide to the terms and preserve the intended freedoms. Play by the rules or go away, it is simple as that.
    • Re: (Score:3, Informative)

      From doing a quick read, it sounds like there are concerns on how much protection GPLv3 actually provides. Does this mean that developers will continue to release software under the GPLv2 until this gets straightened out.

      The GPLv3 doesn't exist yet. It's still being drafted [fsf.org]. Any complaints about the GPLv3 are thus actually complaints about a possible, future GPLv3, and can still be addressed.

    • by H4x0r Jim Duggan (757476) on Wednesday March 07 2007, @04:28PM (#18266764) Homepage Journal
      Using GPLv2 is not an option for Novell because they don't own the software they package and redistribute.

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

      So if Novell wants to avoid GPLv3, they will have to forever stay with Glibc 2.5, GCC 4.1, coreutils 6.7, and old versions of GIMP, emacs, bash, gdb, etc. etc.
    • by 99BottlesOfBeerInMyF (813746) on Wednesday March 07 2007, @06:11PM (#18268020)

      I used to think it was nice, but I am much more drawn to the BSD licence, because it is much opener then GPL3.

      A lot of people invest a lot of time in writing code they contribute to open source projects. Usually those people are less motivated by some hippy idealism of giving away things for free and are more interested in the benefits they can get from a license in terms of protecting their investment and soliciting free work from others. The GPL is so popular not because it is the most "free" but because it strikes a balance that makes most people happy. If I or my company devote significant time and investment in creating some code, I don't think it is fair that some other person or company should make minor addition (like adding a new type of hardware support) and then sell my work back to me and to others. Do you think it is "right" for you to take code that is 99.9% written by others and make money off of it while the people who did all the work get nothing? Most people don't so they avoid the GPL for most userland software.

      Now I've contributed to BSD licensed projects, but I don't think they are ideal in most cases. The GPL is a guarantee that the code that is being actively developed will not be a closed fork that I can't access anymore. The intention of the GPLv3 is to insure that the code that is actively being developed is also not covered by some patent that makes it almost as unusable to me. I'm not advocating the GPLv3 and I'm not certain it is the right way to go, but I certainly understand and sympathize with the intent. Like it or not most open source code is developed by commercial companies for profit and if the deal you struck with the companies doing the rest of the development is not in your own best interests and, in fact, is exploiting your generosity, well, you have no one to blame but yourself for choosing that license. The GPL like all licenses is about protecting the interests of the developers.