Microsoft vouchers undercut patent claims Novell's deal with Microsoft (on behalf of its customers, of course) could end up benefiting everyone in the open source community after all, thanks to a missing expiration date and a nifty little clause in GPLv3. Microsoft announced last week that it holds exactly 235 patents which are infringed by Linux source code. It wasn …
An interesting line of attack. However....
1/ None of the code in presently question is covered by GPL3 (it's covered by GPL2 at best)
2/ Some people who presently release code covered by the GPL have said that they will not use GPL3 (Linus T has said as much regarding the Linux kernel), and so the v3 clause in question will never apply.
3/ You can't apply a licence agreement retrospectively so even if all the code in question suddenly moved over to GPL3, it would not effect any of the code presently being released by Novel. So, in order to close the loophole, all MS/Novel have to do is make another agreement (post GPL3) that DOES include an expiry date or whatever is needed to plug the hole, and issue the new agreement with subsequent Suse releases.
Most software released until the GPL currently specifies GPL2 or later (see the below clause) notably the linux kernel does not, but the GNU software, such as glibc and gcc certainly does.
It is also up the the recipiant of the code which license to apply (again see below)
Lastly, whether or not a lot of the GPL 2 only software (such as the kernel) move to GPL is a moot point. A lot of essential software which has become part of linux is from GNU and will certainly be GPL 3.
think this is going to be a long messy battle covering many estoic parts of law, and that lawyers are already rubbing their hands together just thinking of how much they are going to be able to bill.
From the GPL:
9. The Free Software Foundation may publish revised and/or new versions
of the General Public License from time to time. Such new versions will
be similar in spirit to the present version, but may differ in detail to
address new problems or concerns.
Each version is given a distinguishing version number. If the Program
specifies a version number of this License which applies to it and "any
later version", you have the option of following the terms and conditions
either of that version or of any later version published by the Free
Software Foundation. If the Program does not specify a version number of
this License, you may choose any version ever published by the Free Software
Foundation.
Linus exact words were that he wouldn't consider using the GPL3 as it stood at the time. That was back when a draft was issued, which contained certain clauses he disagreed with. He's subsequently been involved in the negotiations over the wording of the GPL3. He hasn't issued any more statements on the matter so far, but it seems likely that his involvement will let him influence the license to his liking.
As I said at the start, his disagreement was with specific clauses in a draft. That draft is long dead. We shall wait for the final release before we find out what he thinks.
When it comes to lawyers and the size of the war chest, nobody can compete with Microsoft. (Not even the EU.)
So Novell had two choices. Do a deal with the devil (metaphorically said), or go belly up because of the legal costs in mounting a defense.
So they took the easier route. Protected themselves and bought the industry some time.
GPL 3 won't solve the problem.
Patent law reform will.
Of the number of patents that are claimed, none are named.
There's a reason for this.
Like the SCO suit, the bulk of the patent claims will fall apart. But this will cost money that Linux supporters don't have.
So if you were in Novell's position, what would you do? Fight and die, or do what's best for your shareholders, and your company's viability?
Just one thing...
If, after the Novell deal, Microsoft moves forward on their threat, why don't you contact your congress critter, or member of parliment, or whatever you call them... and sue Microsoft? In 4-6 years time, Microsoft will be found guilty of yet again acting illegally as a monopoly, and maybe this time they'll break the company up in to little pieces.
Call Microsoft's bluff.
In practice what is likely to prevent Microsoft working with Novell to keep a GPL2 only fork of GNU/Linux alive by patching and extending this by themselves with whoever will collaborate with them on this basis, will be the cost of keeping this fork independent of, uncontaminated by, and competitive with code relicensed to include GPL3 only newer parts together with GPL2 and later older parts, and migrating to GPL3 only. The problem with this approach for Microsoft and friends is that they can't afford to do this in the medium term, as they will end up with an inferior system to the one which is developed under GPL3 by a better resourced and more global collaboration. The proprietary versus open-sourse cost and scalability reasons making Windows XP and Vista inferior to Linux from security, standards compliance, stability and usability considerations will also apply to a MS-Novell maintained GPL2 Linux code fork compared to a GPL3 only mainstream.
So if they have to use their US patents in the US market for more than FUD they will have to balance the cost of a GPL2 and no later code fork against this questionable advantage. The existence of the MS Novell deal resulting in Microsoft distributing Novell Linux shows that in the medium term the game is up, and Microsoft know it. A few years ago Microsoft would not have believed such a deal to be in their best interests, but with XP becoming unmaintainable, Vista being alpha status at best and based on an already broken security model, and with MS-Office outperformed by a free replacement OpenOffice, Microsoft knows that they have to learn to play a different kind of game but are slow to come to the realisation that this is one in which they won't be calling all the shots.
It may not be so apparent to Windows users but the compilers are vital to a Linux installation. So if these are released under GPL v3 (and they definitely will be) then MS will have a problem.
It is not a question of applying the new licence retroactively. Simply that future versions will be under v3. These compilers are updated frequently - 3 or 4 times a year.
These FSF claims rely on a few questionable assumptions:
1) That MS is a distributor by selling/giving vouchers for Linux support. The FSF is now saying that anyone doing this now has to obey GPL3, even if they never copied or even touched code released under it. The FUD risk is immeasurable: "Have any business with GPL'd code and you'll lose all your patents!"
2) That the coupons will be redeemed and not cancelled/replaced.
3) That Novell won't turn around and say "ah, but those vouchers are only for the latest GPL2 versions of everything".
It's #1 I have real problems with. I cannot see how any company can be party to the GPL, or can be shown to have accepted the GPL, if they're not copying GPL code and giving it out to other people.
NK
Before you get angry, read the entire post.
Yes, you have to congratuate Microsoft for becoming the first company that has been accused of being a monopoly and while not only been found to have behaved in an illegal manner, continued to violate the terms of their settlement with the US and other countries' governments. (Of course their lawyers will express a different opinion....)
(IBM never went as far as Microsoft. The only other US tech company to have been found guilty of breaking the law while a monopoly.)
And as a foot note, maybe now people should consider a law against lawyers being allowed to propagate. (Both of Bill's parents were lawyers.)
But the point of this is that Microsoft, is/was attempting an SCO move. They are yet again attemtping to use their vast war chest and lawyers to get their way.
One has to ask where is Washington (DC) on this? Oh wait, they're a bunch of lawyers too.
As I stated in my own analysis http://gotastrategy.typepad.com
This kind of selective indemnity with very complex channel marketing agreements will make it very difficult for Microsoft lawyers. If Microsoft was not a dominant industry player, I could see the under dog strategy.
Kameran Ahari
gotastrategy.typepad.com
@ Nigel Kneale: "I cannot see how any company can be party to the GPL, or can be shown to have accepted the GPL, if they're not copying GPL code and giving it out to other people."
Portions of Microsoft's kernel code for NT have leaked. Incorporated into that kernel code are some lines that are lifted verbatim from Free BSD. While BSD is not Linux, the use of BSD code obligates MS to adhere to the BSD license - which they have clearly not done.
If MS is foolish enough to force a showdown over their "software patents" they will be forced to provide source doe during a process called "discovery," and at thet point, they will be shown to have incorporated code lifted from Linux as well - you can count on it.
(I place "software patents" in scare quotes because they are like "monsters under the bed" - something which can be used to frighten children, but which, if exposed to the light of day, simply evaporate.)
The previous post about the BSD license doesn't seem to understand the BSD license itself.
As long as Microsoft credit the appropriate people/organisations ("Portions of the code in this environment have come from <x>, <y>, <z>" is all that is necessary) somewhere (buried within a text file in c:\win31 or similar would be fine) they are adhering to the letter of the license behind the code in most cases. Quite a few libraries that have been released under the BSD license now don't even have that as a requirement.
microsoft might have these patents as weapons against the whole of linux but so what they will take every distro to court and make them pay until there bankrupt but they will be back in a few months under a new name which MS will sue again...
and here a point you can't place a patent on a function just the code so as soon as there released to the public the whole of linux will just recode or find ways round it to solve the problem because not everything has to be done the same way. in the end the open source will win and might even casue an up rising against M$ a bit like the whole digg incident a few weeks back.
so all i can say is bring it on M$ we'll win it time for the real war to being between the penguin and the gate
In my interpretation, this clause of GPL3 will not apply to current work, as "you have the option of following the terms and conditions either of that version or of any later version published by the Free Software Foundation".
However, as soon as someone releases a security fix/patch for a program under GPL3, even if it is just 1 line of code, and you apply it... as far as I can tell the entire work would be covered.
One thing that I am not sure of though... What was the wording of the deal between M$ and Novell? If it applied to a specific product, then they (may) be safe. Although even this could be undermined if a bug fix to a peice of code containing the supposed patent violations, or some code that links to it, is released under GPL3 and incorporated into the 'voucher'ed SuSE.
Another point though, I agree that M$ are SO big (sounding like Monty Python here) that they could bury open source companies under mounds of legal paperwork, and win by default by bankrupting them with legal bills. This would not kill open source, but it would stifle it somewhat.
Of course prior to the MS-Novell deal GPLv3 was a bit of a curiosity largely for RMS' satisfaction. Now however, with the MS-Novell deal, it seems very likely that FOSS developers will move to GPLv3, especially so, if it does (appear to) offer protection from MS.
Congratulations are due to Microsoft for encouraging this transition.
I agree with those who say that M$ will never sue a Linux distro. In any case, their putative "infringed patents" are only valid in the US, so users in Europe have nothing to fear (see recent AT&T vs MS judgment in US Supreme Court). If they do try it, I predict Novell will relocate to Nuremberg and rebadge as SuSE (or move to Canada) while RedHat will move south to Mexico and carry on from there. I don't think they'll go after SCO! The non-US distros are probably safe, so worst case is we all have to migrate to Mandriva or Ubuntu.
I am just waiting for someone to ask Ballmer in a big public forum which patents he thinks are infringed where, and when he intends to sue someone!
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